Judge’s ruling in New Brunswick breaks Treaty of 1725

A September 2019 ruling by a judge about a snowmobile grooming hub in New Brunswick contravenes the Treaty of 1725. Now that the Treaty has been broken, a decision about revoking the signing of the Treaty must be made.

Today, September 24, 2020, marks the 292nd anniversary of the 1728 signing of the Treaty of 1725 (also known as the Mascarene Treaty), by Wolatoqey Grand Chief Charles Manituphike, and the start of what could be its downfall by successor Wolastoqey Grand Chief Ron Tremblay.

New Brunswick (formerly British colony 207) never received a charter like its sister colonies in New England. The basis for settlers being allowed to live in Wolastokuk (Wolastoqey homeland) is the treaties negotiated between representatives of the Crown and the Indians, the most important being the Treaty of 1725.

The Treaty of 1725 was a progeny of the British and Wabanaki Confederacy, an age-old alliance between Penobscot, Abenaki, Wolastoqiyik and Passamaquoddy.

The denial of any articles in this treaty is a serious constitutional violation as in this treaty the Confederacy agreed to share their lands with the British in peace and friendship. Treaty Article 5 was denied on September 16, 2019 by the very institution entrusted with its safeguarding, the Court of Queen’s Bench with Justice Richard Petrie as presiding judge.

Article 5 states that if any Indians are injured by his Majesty’s subjects, s/he would receive satisfaction and reparation according to his Majesty’s laws “whereof the Indians shall have the benefitt equall with his Majestys other subjects.”

The rules of treaty interpretation, established by the Supreme Court of Canada, requires that we interpret the words contained in the Treaty of 1725 as they were defined in the 18th century, and not how they are defined today.

Jacob’s 1762 law dictionary defines injury as “a wrong or damage to a man’s person or goods.” In our case, the injury was the proposed development of a snowmobile grooming hub at Mount Carleton Park.

We believe that the snowmobile hub would endanger the lives of plants and animals in the park. This project contravenes promises made by the British to the Indians in the Treaty of 1725 not to molest their persons, referring, of course, to the plants and animals of the park, whom Wolastoqiyik regard as their kin.

In 2015, with Wolastoq Grand Chief Tremblay, Maliseet Grand Council, we filed an application with the Court of Queen’s Bench for a judicial review of the Government’s decision to develop this snowmobile grooming hub at Mount Carleton Park. Gordon Allen, our attorney, asked for satisfaction and reparation. We received neither.

The word satisfaction comes from the Latin satis, and means to do enough to prevent the injured party from wanting vengeance. Reparation means putting things back the way they were before the injury.

William Gould, the province’s lawyer, argued that Aboriginal and treaty rights are collective rights which can only be brought before the courts by a duly appointed representative of that collective, meaning chief and council from any of the six Wolatoqey bands on Wolastoq.

Since neither Chief Tremblay nor the Maliseet Grand Council had a delegated authority from any of the six Indian-Act-elected chiefs in Wolastokuk, Justice Petrie agreed with Mr. Gould and ruled that the term any Indians referred to Indian-Act-elected chiefs only.

Hogwash.

First, elected chiefs and councils came into being only after 1899 with the passage of an Order-in-Council, close to 170 years after the treaty was signed by Tremblay’s predecessor – so there is no way that the term “any Indians” meant Indian Act-elected chief and council.

Secondly, the phrase “satisfaction and reparation made to them according to His Majestys Laws” was inserted in Article 5 after Wabanaki chief negotiator Loron Saugaaram agreed to forego his people’s traditional law of private satisfaction (personal revenge) in conflicts between Aboriginals and the British and why this private right was attributed to “any Indians.”

Chief Tremblay and the Maliseet Grand Council did what was required of them. Rather than seek private satisfaction as per Wabanaki law, they invoked the treaty’s dispute resolution mechanism at Article 5.

In dismissing our application, Justice Petrie’s ruling has thrown our treaty tenure with Wolastoqiyik into disarray and opened a new can of worms.

As of September 16, 2019, when Justice Petrie’s ruling broke the treaty accord, Wolastoqiyik are no longer bound to the common law.

Wabanaki never abandoned their own laws, agreeing only to resort to His Majesty’s laws and the British court system for satisfaction and reparation following injuries their people experienced at the hands of the British.

Now that the treaty has been broken, the question is whether or not there are provisions within Wabanaki law for us to proceed with our appeal of Petrie J’s ruling, filed in October 2019, or if Grand Chief Tremblay will be advised by Wabanaki Confederacy this coming winter to revoke Grand Chief Manituphike’s signing of the Treaty of 1725.

Dr. Jean Louis Deveau is an independent scholar, former manager of Mt. Carleton Park, and co-founder of the Friends of Mt. Carleton Provincial Park.

Alma H. Brooks, BA, is a Wolastoqwey Grandmother (the people of the beautiful & bountiful River) residing in the territory of EkPahak ( the place where the tide ends ) is physically, linguistically, spiritually, culturally, and biologically connected to the traditional homeland of her ancestors.

Ron Tremblay is his colonial birth name but is known as “spasaqsit possesom” (spuz-akw-zid  buz-za-zum) – morningstar burning. He is a citizen of Wolastokuk (Wa-lus-da-gook). Being the youngest of 10 children of the late Doris Sappier and Raymond Tremblay, spasaqsit possesom grew-up surrounded by Wolastoqey (Wa-lus-do-kway) Language spoken fluently. spasaqsit possesom credits his mother Doris and grandparents Madeline LePorte and Louise Sappier for his genuine love of Wolastoqey Language and he also acknowledges that they provided him the true teachings of life.

After moving to Fredericton in 1991 he befriended several Elders from local area. The two main Elders Ulsonuwit Sqot (Harry LaPorte) and Sagatay (Gwen Bear) guided him deeper into his Wolastoqey Traditional Ways. After years of involvement in various ceremonies with his teachers spasaqsit possesom gained wisdom and knowledge of “Wolastoqey way of life”. Still today, Ron practices the traditional ways of Wolastoqewiyik. In November 2016, Ron was installed as Traditional Wolastoqewi-Grand Chief. The mandate of the Wolastoqey Grand Council is to protect and preserve Wolastokuk, their non-ceded traditional homeland, waterways, ceremonies and language.