A Quebec Superior Court judge, Justice Gregory Moore, granted the Kanien’kehà:ka Kahnistensera (Mohawk Mothers) an interlocutory injunction on Oct. 27, after a two-day court hearing for the Mothers’ ongoing lawsuit against McGill over potential unmarked Indigenous graves on McGill’s New Vic site. This injunction will effectively halt all archeological work for approximately four months.
An interlocutory injunction is a court order that prevents a party from performing certain actions until the final decision in a case has been made. In this case, McGill is still allowed to perform maintenance work on the site, but is prohibited from conducting any further excavation. Arkéos, the archeological firm hired by McGill, had begun excavation without the Mothers’ consent on Oct. 12.
In an interview with The McGill Tribune, anthropologist and associate of the Mothers, Philippe Blouin, emphasized that the Mothers’ win is a historic achievement that establishes an important legal precedent.
“It’s the first time in Canadian history that Indigenous people won without lawyers. This will be jurisprudence for future cases,” Blouin said.
The two-day hearing saw arguments from both the Mothers and McGill, as well as Independent Special Interlocutor Kimberly Murray. The Mothers gave a presentation on the historical background of the case and recounted their past efforts. Mohawk Mother Kahentinetha also criticized McGill’s communication with the Mothers, which she described as negligent.
“The only information we get is from McGill University’s Instagram photo-ops,” Kahentinetha said in court.
Kahentinetha told the Tribune that during the proceedings, she voiced her frustration with McGill’s constant dismissal of the Mothers and their methods for handling the court case. Now that the judge has granted the injunction, she is looking forward to non-hostile discussions with McGill in the future.
“We told them that we feel like we are being silenced,” Kahentinetha said. “We explained our frustration with the way we thought we were being mistreated, but it was basically a misunderstanding between us. And now, we’re going to be able to explain to them how we operate, which is very exciting.”
McGill’s attorney, Doug Mitchell, debated with Murray and the Mothers over whether the Superior Court of Quebec was the appropriate setting for adjudicating this case. The Mothers countered that they had exhausted all channels outside of the court to express their concerns, and argued that the courtroom was their last resort.
“[The Mothers] filed another affidavit [on] the first day of the hearing that showed all the different steps that they already took to try to voice their concerns,” Blouin said. “It was taken into account with the final report of the [Office de consultation publique de Montréal].”
On the second day of the hearing, the Court established that it had the responsibility to act in an honourable way toward Indigenous peoples as stipulated by the honour of the Crown constitutional principle. The principle outlines that the government must “act with honour, integrity, good faith, and fairness in all of its dealings with Indigenous peoples.”
In anticipation of the hearings, Divest McGill, a student-run environmental justice group, held events to mobilize the McGill community in support of the Mothers. One of the events was a protest outside of the Palais de justice de Montréal on Oct. 26. About 30 people attended, with some individuals inside the courthouse watching the hearing, while others watched the live stream from outside. Maya Garfinkel, U4 Arts and Divest organizer, believes that students must bear witness to McGill’s litigation in order to hold the administration accountable for its actions.
“McGill’s strategy, as with many issues that McGill faces, has been to sweep things under the rug. So in order to combat that strategy of erasure, we need to do the opposite,” Garfinkel said in an interview with the Tribune. “We need to raise awareness and bring people into the fold who may not be aware of what is happening otherwise.”
On Oct. 25, Divest held a movie screening in support of the Mothers, showcasing Kanehsatake, 270 Years of Resistance, a film about the Oka Crisis, or the Kanesatake Resistance—a confrontation between members of the Mohawk Nation and the city of Oka, which called in the Canadian army after trying to expand a golf course into a Mohawk burial ground.
“It is ultimately a story of resilience, and we want to take that message of resilience forward as we continue to act in solidarity with the Mohawk Mothers and the Indigenous peoples in resistance across Turtle Island,” Garfinkel said.
Edna Isabel Mameanskum, a protestor and member of the Naskapi Nation of Kawawachikamach, was present for the hearing, and condemned McGill’s alleged desecration of graves. She believes that the Canadian legal system is not built for handling issues regarding unmarked Indigenous graves, as there is no previous jurisprudence entailing how to deal with mass burial sites on unceded land.
“I felt obligated to be here because everyone needs a proper burial. Why would you just go and move the bodies of children, especially children,” Mameanskum said in an interview with the Tribune. “I was inside and […] lawyers said they’re not qualified to make these kinds of decisions because their laws are white laws. He said we’re here because of colonialism. It really hit me [….] I felt chills.”
Following his decision to grant an emergency injunction, Justice Moore commended Mohawk traditions of mediation. He encouraged both parties to uphold those principles instead of adversarial litigation.
“He said that these talks should be inspired perhaps by the way discussions happen in the Longhouse and Mohawk tradition,” Blouin said. “The Mohawk Mothers are not opposing McGill per se. They respect their educational vocation, but […] this is a question of the land there. If McGill is standing on unceded land, it has to be dealt with in a respectful manner.”
Kahentinetha emphasized that the long-standing Indigenous decision-making process should be of interest to all parties. She recounted a time when she taught members of the McGill community about the approach and the importance of constructive debating.
“When we taught it the first time at McGill, we were there for a whole day,” Kahentinetha said. “We explained it to them, and gave them a problem to work on. They loved it. They said ‘this is the best decision-making system I’ve ever seen.’ This is not adversarial. This is one where people learn to understand each other. And in the end, people can become friends.”
The Mothers celebrated their win, but quickly returned to preparing for the collective discussions in four months. In the next hearing, which has yet to be scheduled, all parties will collectively determine the most effective and ethical archeological practice for performing work in a way that is respectful to the land and the potential remains.
“We have four months to work out some kind of agreement on each side, so that we understand each other, what we’re trying to do, and just how this is going to be carried out,” Kahentinetha said. “We really want to start a good dialogue. That’s what we’re working towards, a peaceful dialogue with McGill.”
McGill is also preparing for the collaborative discussions. McGill media relations officer Frédérique Mazerolle outlined McGill’s next steps after the court-ordered excavation postponement in an email to the Tribune.
“The archaeological fieldwork […] is completed and the intervention did not lead to any archaeological discovery,” Mazerolle wrote. “Following the court decision this week, granting a short-term injunction to the defendants, McGill will examine the decision thoroughly over the coming weeks and will reach out to the special interlocutor to discuss ways of meeting the concerns that were raised.”
The Mothers urge students to continue to peacefully support their case. In fact, student activism may have made a difference in the Mothers’ case, according to Garfinkel.
“I was struck by the mentions of student activism and student voices even in the courtroom,” Garfinkel said. “For example, the Mohawk Mothers were able to leverage the fact that many students had spoken out against the issue during their statement in court, making it clear that […] there are many in McGill’s public, including in the student body, who oppose the way the project has been moving forward. It was clear that this statement had weight in the courtroom and we were proud to have contributed to that possibility.”
The Mothers hope that their win will mark a new era of reconciliation at McGill.
“Real progress can be made from here. It’s wonderful that we’re going to do this,” Kahentinetha said. “No more stress, no more fear, none of that. Can you imagine that after [500 years], we’re now going to be taken seriously?”