McGill, Montreal, News

Judge accepts McGill’s application to appeal reinstatement of archaeological panel in Mohawk Mothers case

The Kanien’kehá:ka Kahnistensera (Mohawk Mothers) and McGill appeared at the Court of Appeal of Quebec on Jan. 16, where McGill presented its application for leave to appeal against Justice Gregory Moore’s Nov. 20 decision to reinstate the court-appointed archaeological panel tasked with overseeing the ongoing investigation into potential unmarked Indigenous graves on the site of McGill’s New Vic Project. This comes after the Mothers asserted that McGill and the Société québécoise des Infrastructures (SQI) had prematurely disbanded the panel on Aug. 3. In court, McGill claimed that the panel was dissolved after its mandate had been completed, as per their interpretation of the settlement agreement and contracts with panel members. Justice Christine Baudouin ruled to accept McGill’s application of appeal on Jan. 19, meaning that the appeal will be heard and debated before the court on June 11. 

McGill’s lawyer, Olga Redko, was the first to speak before Baudouin—one of Quebec’s 22 appeal judges who hears appeals concerning civil trials. Redko argued that the issue before the court was not a dispute over the interpretation of the settlement agreement. She asserted that Justice Moore had rendered a judgment without considering the possibility of further deliberation over the merits of the contract. 

Additionally, Redko stated that Justice Moore’s judgment had a March expiration date, and that he had ignored section 13 of the settlement agreement. McGill, the SQI, and the Mohawk Mothers are bound by the recommendation of the panel regarding which techniques to use and guided by the recommendations regarding which service providers to use in the archaeological investigation. However, section 13 states that McGill and the SQI retain the discretion to acquire other providers if the circumstances warrant. By ignoring this section in his ruling, Redko argued that Justice Moore had “failed to follow jurisprudence.”

Mohawk Mother Kwetiio shared in an interview with The Tribune after the hearing that she felt that McGill’s statement to the court was “very technical” and lacked empathy toward the possibility of Indigenous children’s graves on the site. 

“Everything the [McGill] lawyer was saying, it just felt like she was regurgitating a textbook and order of operations,” Kwetiio said. “Those words didn’t care if it meant killing a child, or throwing someone in the garbage. It didn’t have any of the substance, and I think that’s the difference between our ways.”

In a roundtable discussion with The Tribune, Associate Provost (Equity and Academic Policies) Angela Campbell expanded on the dissolution of the panel, explaining that the panel consisted of three members who were named in the settlement agreement, alongside dates set for the completion of the panel’s work. She recalled that shortly after the panel had delivered its second and final report in late July 2023, one panel member wrote to all parties stating that she considered their work to be done, and she then “stepped away.” 

“I wouldn’t call that quitting because quitting suggests that you’re leaving in the middle of something. From her perspective, the work was done. So, she moved away from the work,” Campbell said. “The position that McGill has taken is [that] the panel is not fired or dissolved. Its work is complete in accordance with the terms of the settlement agreement.” 

Pierre Major, the Executive Director of the New Vic Project, also shared in a roundtable discussion with The Tribune that McGill and the SQI were responsible for paying the panel members and drafted up contracts in April 2023 with predetermined end dates. 

“With anybody that you pay, you need a contract. So, we put together a document with the help of our legal counsel, agreed on an hourly fee, and agreed on the period. We put an end date of July on the basis of when the mandate was to end, and those documents were shared with the Kahnistensera,” Major said. 

Campbell also noted that although the panel’s work was done, the settlement agreement stipulated that the panel must be consulted in the event of an “unexpected discovery,” such as historic human remains detection dogs detecting a scent on the site. 

After a brief break, the Mothers, who legally represent themselves, addressed the court. Mohawk Mother Kahentinetha explained that from her perspective, the spirit of reconciliation has not been upheld between the parties. She argued that Justice Moore determined that the McGill and the SQI’s application of the agreement was too narrow, as the defendant’s interpretation would dissolve the archaeological panel. 

Kwetiio echoed this sentiment, explaining to the court that the potential presence of human remains at the New Vic Project site has not been elucidated and pointing to numerous artifacts found on the site, such as bone fragments and a child’s shoe. She ended her statement by asserting that refusing to reinstate the panel would damage the spirit of reconciliation, and a court appeal of that nature would create a dangerous precedent for other proceedings involving missing Indigenous children and unmarked graves. 

In an interview with The Tribune after the hearing, Kwetiio explained that it felt frustrating to once again be in court where she felt the defendants were manipulating the words of the contract. 

“When you get into a contract with somebody, you’re getting into a relationship, and a contract is that everybody gets what they need to get. They needed to do their construction, we needed to have the clarity of this investigation,” Kwetiio said. “They’re trying to manipulate the intention that was put into that very contract.” 

The Mothers also shared that while they were disheartened, they felt confident based on their presentations to the court. 

“I’m pretty confident because we’re just relying on what we’ve always relied on from the very beginning,” Kahentinetha said in an interview with The Tribune after the hearing. “Now it’s all coming out into the open, and everybody can see what has been going on, what’s happening, and what we’re fighting for.”

Julian Falconer—the lawyer for the Office of the Independent Special Interlocutor, Kimberly Murray—subsequently addressed the court. He stated that Justice Moore continues to manage the trauma and fear that emerges for the Mothers out of this investigation. Falconer explained that if the appeal goes through the Quebec court system, the damage done will be “out of proportion.” He ended his statement by stating that the case should return to Justice Moore to allow him to continue to do the critical work he’s been doing. 

Baudouin adjourned the hearing without a ruling. 

“If it does come to the point where they do have an appeal, we’re just going to be ready like we’re always ready,” Kwetiio said.“We’re always going to have the ways we’ve solved things. We’re always going to have the thought of those children and the thought of my children […] and the thought that we have to show them how to keep doing this and keep living our way.” 

On Jan. 19, Baudouin announced her decision, stating that she would grant the defendants’ admission to appeal. A safeguard order has been automatically granted as the parties wait to debate the appeal, meaning that the panel will not be reinstated in the meantime. The appeal hearing is set for June 11, 2024. 

A previous version of this article stated that McGill is bound by the recommendations of the panel regarding which service providers to use in the archaeological investigation. In fact, McGill is not bound by these recommendations but is rather guided by them. The Tribune regrets this error.

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