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Appeal by McGill, SQI approved for next steps

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The lengthy court battles involving the Kanien’kehá:ka Kahnistensera (Mohawk Mothers) are set to continue after McGill University and the Société québécoise des infrastructures (SQI) were granted an application for leave to appeal last week.

The Mothers had recently been successful in demanding that a panel of archaeological experts created by an agreement between the parties be reinstated to oversee work taking place at the site of the former Royal Victoria Hospital, where the group believes there may be unmarked graves of Indigenous children and other patients.

But McGill and the SQI took the decision to Quebec’s Court of Appeal last Tuesday, where they argued that Justice Moore, who has been presiding over the case as it’s continued through the Quebec Superior Court, made an error in ordering that the panel be reinstated.

Justice Christine Baudouin released her decision via email to the applicants on Friday, January 19. Her decision does not mean that the appeal is successful or unsuccessful, but rather that it allows the appeal to move to the next stage of the court, where it will be heard by a panel of appeal judges.

“We have to keep saying the same thing over and over and over again, and it’s very tiring, and it’s very insulting,” said Kahentinetha, who represented the Mothers in court last week. “How will we ever know if there is an existence of bodies on that land? How will we ever know that?”

The appeal will not be heard by the panel of appeal judges until June 11, though McGill and the SQI are expected to file written arguments by February 23. The Mothers, as well as the office of Kimberly Murray, the independent special interlocutor for missing children and unmarked graves and burial sites associated with Indian residential schools, will be allowed to file arguments in response by March 29.

With the ground frozen at the site, no archaeological work is currently happening, with only above-ground work taking place, such as on building facades. 

“It mainly means more work for the Kahnistensera to once again state pretty much the same things they’ve been stating since the agreement was signed,” said anthropologist Philippe Blouin, who accompanies the Mothers in court and often live translates arguments presented in French for the group. 

“If the agreement ever really meant that the panel would have been gotten rid of and disbanded after merely selecting which techniques would be used, without a possibility to oversee their implementation, the Mohawk Mothers would never have signed such a document.”

McGill and the SQI said that the panel’s mandate was to assess and identify appropriate archaeological techniques to be used on-site in a process known as mapping. They argued that the deadline for mapping laid out in the agreement is ultimately the end date for the panel members’ involvement in the project.

Though the settlement agreement, signed by all parties in April of last year, identifies mapping to be the responsibility of the panel, there is no clear aspect of the agreement that identifies a stated end date for the panel’s involvement. The Mothers say they had been of the belief that the panel would continue working closely with investigators throughout the archaeological process and were not notified that McGill and the SQI had ended the panel’s mandates in July.

“We were supposed to work out a system where we would coordinate everything that we’re doing with each other and now it’s getting more and more difficult to do that. We’re supposed to talk together,” Kahentinetha said. “Now, it’s a waste of time, a waste of money, a waste of everything.”

The Mothers have been representing themselves in court, something that has been a costly endeavour, according to Kahentinetha. She has used funds from her pension to cover the costs of continually appearing in court. Blouin said this makes for a further obstacle towards reconciliation efforts.

“It’s problematic that these searches for missing Indigenous children have to go through such a problematic process,”  he said. “It’s a system that’s really not made for self-represented litigants and especially Indigenous people.”

The appeals process is lengthy but is proving to be an ongoing factor in the case, with an appeal against McGill and the SQI on a separate issue expected to be heard in the same court later in March. 

That leave to appeal was filed by the special interlocutor and concerns access to archival medical records for the site, which the Mothers say would help establish the presence and likelihood of Indigenous graves at the site. 

In an emailed statement to The Eastern Door, McGill University said that their decision to seek leave to appeal was not taken lightly, but that they believe the settlement agreement was misrepresented in the Judge’s decision to reinstate the panel. They said that in accordance with the Judge’s previous decision, since the case has not yet been heard by appeal judges, the panel would still be called upon in the event that an unexpected finding takes place at the site. 

The SQI did not reply to The Eastern Door’s request for comment by deadline. 

evedcable@gmail.com

This article was originally published in print on January 26, in issue 33.04 of The Eastern Door.

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Eve is a reporter with the Eastern Door. She has also covered harm reduction and social justice issues for the Montreal Gazette, The Breach, Filter Magazine, and more.

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Eve is a reporter with the Eastern Door. She has also covered harm reduction and social justice issues for the Montreal Gazette, The Breach, Filter Magazine, and more.