Wolastoqey / Wəlastəkwey
Rights Manual
Introduction
This manual shares educational information with non-Indigenous people and Wolastoqi/Wəlastəkwi community members to promote greater respect for and understanding of Wolastoqey/Wəlastəkwey culture, history, and their Aboriginal and Treaty Rights, and experiences with racism, that is currently hard for many people in New Brunswick to access, especially within a single source. It also has suggestions and resources readers can use to learn more about or to take steps to help strengthen Wolastoqey/Wəlastəkwey rights.
Click below to read the full manual.
Wolastoqey /
Wəlastəkwey
History
The Rights Manual provides information on the history and resilience of the Wolastoqiyik/Wəlastəkwiyik, Indigenous people of the Wolastoq/Wəlastəkw watershed, whose cultural heritage and sovereignty continue to thrive despite centuries of colonization. This is covered in Section 1 of the Manual.
Wolastoqey / Wəlastəkwey
Rights
Every human has human rights, like the rights to food, shelter, justice, and freedom from violence. These rights exist because we are humans – they are not given to us by governments. Governments, however, play a key role in supporting human rights, and not all governments define or respect human rights in the same manner or to the same degree.
Indigenous people in Canada possess human rights like everyone else, and they also have additional rights due to their unique history, culture, and relationships with the lands that became Canada. Moreover, some Indigenous peoples have rights protected by treaties they made with the Crown.
In Canada, the two main types of rights held specifically by Indigenous people are Aboriginal Rights and Treaty Rights. These rights are recognized in Section 35 of the Constitution Act, 1982.
Aboriginal Rights are “inherent” rights. Inherent rights are rights that do not come from a Crown law or treaty, and that Indigenous people hold because of who they were and how they lived before the arrival of European settlers to what is now Canada. Specifically, in Canadian law, Aboriginal Rights are the practices, customs and traditions that made the Indigenous society what it was before the settlers arrived (or as courts often say, before “contact”). Because each Indigenous group is different, the content of Aboriginal Rights varies but often includes harvesting activities (e.g., hunting, fishing, timber harvesting), cultural and spiritual activities and Aboriginal title. For the Wolastoqiyik/Wəlastəkwiyik, Aboriginal Rights protect the practices, customs and traditions that made Wolastoqey/Wəlastəkwey society what it was before the settlers arrived.
Treaty Rights come from agreements that many (but not all) Indigenous peoples reached with the British Crown (as well as Canada in the case of treaties made since 1867). Most Indigenous treaties were made long ago, but the process of treaty making continues today, and treaties developed in Canada since 1976 are called Modern Treaties.
Treaties contain promises by both Indigenous peoples and the Crown. The promises vary from treaty to treaty. As a result, Treaty Rights are not the same across Canada and will depend on the nature of the Crown’s commitments in the particular treaty. Interpreting treaties can be a complicated exercise. Under Canadian law, treaties must be interpreted not just by the wording of the treaty (which often favors the Crown, who wrote up the treaty), but also with regard to the fuller context in which the treaty was negotiated and implemented (for example, the reasons for entering the treaty and any verbal promises made during negotiations).
Aboriginal and Treaty Rights are communal rights belonging to the Indigenous group or peoples who lived and built societies in the various parts of North America. This means that while Indigenous individuals enjoy the benefits of these rights, they belong to the larger collective. Thus, each Wolastoqi/Wəlastəkwi person can exercise Wolastoqey/Wəlastəkwey Aboriginal and Treaty Rights, but the rights themselves belong to the Wolastoqiyik/Wəlastəkwiyik as a whole. This can mean that the larger Nation plays a role in the management of the right, such as deciding when a right should be exercised or whether certain limits need to be placed on the exercise of rights.
It is important to remember that Aboriginal and Treaty Rights are not granted by the colonial government. Aboriginal Rights are inherent rights that exist because Indigenous peoples lived in what is now known as Canada with their own societies, ways of life and governments before the arrival of Europeans. Treaty Rights are also not grants and are the product of a two-way exchange of promises between Crown representatives and Indigenous leaders: through negotiations, each side made promises to the other in order to secure certain benefits.
Aboriginal and Treaty Rights are recognized under section 35 of the Constitution Act, 1982. This means that the Crown cannot make laws or decisions that get rid of Aboriginal and Treaty Rights. It also means that if laws or Crown decisions impact Aboriginal and Treaty Rights, the Crown must prove the impact is justified, and the Supreme Court of Canada has set a high bar for justification. Under section 35 of the Constitution Act, 1982, the Crown is also legally required to consult with Indigenous groups before taking any action that might impact Aboriginal and Treaty Rights, even if those rights have not yet been proven. Depending on the rights at stake and the severity of the potential impact, the Crown can also be required to provide accommodation (together these Crown obligations are known as the duty to consult and accommodate).
Importantly, the content of and scope of Aboriginal and Treaty Rights must be assessed from the Indigenous perspective. This becomes especially important when trying to understand impacts to rights and how they should be accommodated. For example, if it is determined that a new mine would have an impact on the Wolastoqey/Wəlastəkwey right to hunt, looked at solely from the non-Indigenous perspective this might be understood very narrowly as the loss of a food source. But the right to hunt from the Wolastoqey/Wəlastəkwey perspective is about much more than just accessing wild meat. It is about maintaining an important connection to the territory, it is about practicing and maintaining the spiritual customs that are a part of hunting, it is about honouring the teachings that have been passed on, and it is about being able to pass on those teachings to the next generation.
Additionally, and relatedly, many rights also involve the practice of other connected rights and activities. This is so either because those connected rights and activities form a part of the right, from the Indigenous perspective, or because they are necessary for the exercise of the right. In the example above, the right to hunt would include the right to access land in which to hunt and the right to engage in the spiritual practices that accompany the hunt. In addition, the right to trade in game or fish implies the right to hunt or fish for the game or fish intended for trading. These connected and incidental activities are also constitutionally protected.
Wolastoqey/Wəlastəkwey Treaty Rights are not radical or new. The Wolastoqiyik/Wəlastəkwiyik, along with the Mi’kmaq, Peskotomuhkati, Penobscot, Abenaki, and Crown representatives made a series of treaties in the 18th century that are known as the Peace and Friendship Treaties. The treaties that the Wolastoqiyik/Wəlastəkwiyik made in 1725-26, 1749, and 1760 are some of the oldest legally-binding agreements in Canada.
The Peace and Friendship Treaties co-developed by the Wolastoqiyik/Wəlastəkwiyik and other Wabanaki Peoples differ from many of the treaties made elsewhere in Canada. While some (but not all) other treaties surrendered Indigenous land, the Peace and Friendship Treaties DO NOT SURRENDER LAND. In fact, they protect Wolastoqey/Wəlastəkwey rights to land and resources, and provide a further Crown acknowledgement of and source of protection for the Aboriginal Rights of Wabanaki Peoples.
Unfortunately, the Government of Canada and the Province of New Brunswick did not respect their Peace and Friendship Treaty obligations in the past, as they largely operated in violation of these agreements. The Wolastoqiyik/Wəlastəkwiyik were forced to wage long and costly uphill struggles to have Courts affirm their Treaty Rights, but they won important victories from the 1980s onward in which judges ruled that the Treaties are legally binding and that governments and the public must respect the rights recognized by them.
Despite achieving success in Courts, Wolastoqiyik/Wəlastəkwiyik still face enormous challenges having all their Aboriginal and Treaty Rights respected by non-Indigenous governments and enforcement agencies. Moreover, many non-Indigenous people lack knowledge of, or are misinformed about, the Treaties and Treaty Rights.
Because of opposition to Indigenous rights from some non-Indigenous people, Wolastoqiyik/Wəlastəkwiyik who try exercising their rights on lands and waters regularly face hostility, violence, and hate crimes including:
– Rocks thrown at them while fishing with their children;
– Verbal assaults including threats and racist hate speech;
– Harvesting equipment stolen or damaged;
– Fishing boats destroyed;
– Hunting camps used to teach kids about their culture torched by arsonists.
These types of negative experiences, coupled with governments and their enforcement agencies who either refuse to recognize rights or significantly restrict and regulate Indigenous resource use, mean that Wolastoqiyik/Wəlastəkwiyik are unable to:
– Harvest healthy foods;
– Keep families safe from verbal and physical abuse;
– Maintain and pass on skills, traditions, and language;
– Interact with plants, animals, lands, and waters that have sustained their physical and cultural well being for centuries and;
– Earn a living and be self-sufficient.
The treaty Wolastoqiyik/Wəlastəkwiyik developed with the British in 1725/1726 promised they “would not be molested in their Persons, Hunting, Fishing and Shooting & planting on their planting Ground nor in any other their Lawfull occasions.” Wolastoqiyik/Wəlastəkwiyik had the right to fish, hunt, plant, and carry out their other land use and economic activities free from interference or harassment by settlers or settler governments.
THEY STILL HAVE THE TREATY RIGHTS TO DO ALL OF THESE ACTIVITIES TODAY.
This means that Wolastoqiyik/Wəlastəkwiyik are NOT subject to the same resource use regulations and laws that non-Indigenous people are. They are supposed to be able to use land and resources according to their own practices and laws free from interference. This can include hunting or fishing at different times of the day or the year or using different equipment or practices.
Canada, New Brunswick, and the non-Indigenous public must respect those rights although Indigenous people who exercise them continue facing criminal charges because non-Indigenous governments continue to violate the Treaties and disturb and interfere with land users.
The Treaties were intended by both peoples to protect Indigenous resource use practices. Although the word lawfull (lawful) is not defined in the written Treaties, we can infer that it meant other peaceful Indigenous practices that were a regular part of Wolastoqey/Wəlastəkwey life, like harvesting plants and trees, holding ceremonies, trading and engaging in other economic activities.
The British wanted to get furs, feathers, canoes, and other items from the Wolastoqiyik/Wəlastəkwiyik during the era in which the Treaties were made. They did not want to prevent Wolastoqey/Wəlastəkwey harvesting, processing and trading of these and other resources.
A Wolastoqey/Wəlastəkwey goal of making Treaties was to protect their lifestyles, such as their rights to harvest, use, and exchange resources. They did not agree to having a foreign nation restrict these activities, although this is what New Brunswick and Canada did and continue to do.
The Treaties recognize the right of Wolastoqiyik/Wəlastəkwiyik to be treated fairly in the British justice system. Settlers, however, have not always honoured this obligation and systemic racism became a part of the colonial justice system early on – and it persists today.
The 1725/1726 treaty states that Wolastoqiyik/Wəlastəkwiyik would have the same relationship with the King of Britain as they had earlier with the King of France. However, the Wolastoqiyik/Wəlastəkwiyik never surrendered their lands or sovereignty to France. They considered France a strategic ally in a nation-to-nation relationship in which the French King was on a similar level as a Wolastoqi/Wəlastəkwi Sakom (Chief). The Wolastoqiyik/Wəlastəkwiyik regulated French settlement activities in their territory. By agreeing to have the same relationship with the British king as they had with the French king, Wolastoqiyik/Wəlastəkwiyik agreed to maintain their sovereignty and control over their lands.
The Peace and Friendship Treaties also acknowledge that settlers had certain rights such as the right to be treated peacefully by Wabanaki peoples. They also clarified that Indigenous people were not to capture soldiers from British forts, and they were to bring any deserters they encountered to British authorities. The Treaties also obligated Indigenous peoples to release any British captives they had taken during the conflict. Including provisions that recognized the rights and obligations of both Indigenous peoples and the British helped ensure that the Treaty relationship would help create a basis for mutual respect and peaceful interaction
1. Be kind and patient, and understand that Wolastoqi/Wəlastəkwi land users are not criminals, they are Indigenous people who are exercising their rights. They must be treated with respect at all times even if governments fail to honour their obligations regarding Aboriginal and Treaty Rights.
2. Never respond with violence! There are ALWAYS peaceful alternatives to violent interactions with Indigenous people – please seek them out.
3. When land users have hunting and fishing gear or catch/game confiscated, families often lose healthy food sources they depend upon – especially when catch or gear is not returned immediately.
4. From a Wolastoqey/Wəlastəkwey perspective, big factory fishing trawlers, hydro dams, industrial pollution, and intensive forestry operations – activities associated with non-Indigenous people – do FAR MORE HARM to living creatures in our forests, fresh waters, and oceans than Indigenous harvesting does. Yet regulation of these activities is often very weak, while Indigenous land use gets heavily targeted by government regulation. This is an unfair and unproductive example of systemic racism in resource management and conservation policies.
5. Being watched closely feels like harassment to Indigenous land users and can cause them to stop harvesting. If you notice Indigenous people harvesting, please give them respectful space and put your camera away.
6. If you own land, please welcome Wolastoqey/Wəlastəkwey harvesting and consider donating lands to the Wolastoqiyik/Wəlastəkwiyik to help them exercise their rights and pass on cultural traditions to their children. Even an acre makes a positive difference! (See the Land Crisis Section below for more details).
International law, too, recognizes the rights of Indigenous peoples. The United Nations Declaration on the Rights of Indigenous Peoples, adopted in 2007, is the most comprehensive statement by the international community on the rights of Indigenous peoples.
The United Nations Declaration recognizes a number of key rights of Indigenous peoples, a few of which we will identify here. Article 3 of the Declaration, for example, declares that Indigenous peoples “have the right of self-determination” and Article 4 states that Indigenous peoples, in exercising their right to self-determination, have a right of self-government. Article 8 declares that Indigenous peoples and individuals have the right not be subjected to the forced destruction of their cultures. Article 26 states that Indigenous peoples have the right to the lands, territories, and resources that they have traditionally owned, occupied, and used, while Article 10 says that they shall not be forcibly removed from their lands. As well, Article 19 requires governments to cooperate with Indigenous peoples to obtain their free, prior, and informed consent before adopting measures that may affect them. The United Nations Declaration also declares that Indigenous peoples have rights that would serve to protect their cultures, histories, traditions, educational systems, and institutions.
Canada originally objected to the Declaration, but it removed its objections in 2016 and become a “full supporter, without qualification.” The Government of Canada then introduced the United Nations Declaration on the Rights of Indigenous Peoples Act; this Act became law on June 21, 2021. The Act affirms that the United Nations Declaration is an international law instrument used to interpret Canadian law and requires the Government of Canada to take all measures necessary to make Canadian law consistent with the Declaration. The Supreme Court of Canada has held that Canada’s passing of the Act means that the United Nations Declaration is now part of Canadian law.
Individual racism is an action taken by one person that shows that they feel another person is inferior and undeserving of equal respect because of the colour of their skin, the language they speak, the clothes they wear, their spiritual practices, or other indicators of their identity. As individual racism involves one person’s actions or words that diminish and belittle another person, it is an intentional act.
Systemic racism, on the other hand, is deep-seated in the structures of institutions or society as a whole. It builds organization-wide, or even society-wide, responses to those who are members of minority identity groups on the basis of myths about groups, as though all members of a group share the same capabilities, attitudes, and habits. It goes beyond individual mistreatment of one person by another, to exclusionary or harmful institutional attitudes, policies, and practices and society-wide unequal treatment and injustice against minority members of the society.
Systemic racism serves to protect the systemic advantages of the majority and perpetuate the attendant systemic disadvantages of the minority, such as higher levels of unemployment, poverty, homelessness, ill health, food insecurity, and social dislocation. For example, studies have shown that Indigenous people are overly scrutinized by the police, have a greater likelihood of being denied bail, and a diminished likelihood of receiving probation. These facts are a result of attitudes that are built into the justice system and lead to a disproportionately high percentage of Indigenous people serving time in prison. These factors also make Indigenous people more likely to experience violence from law enforcement than non-Indigenous people.
Sometimes attitudes and beliefs about the relative superiority and inferiority of different identity groups are so embedded in society’s way of thinking and doing things that it can be tempting to just think that’s “just the way things are.” Nonetheless, when those attitudes and beliefs subject the members of minority groups to unfair treatment and systemic disadvantages, it constitutes racism.
Environmental Racism is a form of systemic racism that occurs when the dominant society locates activities that cause harm to the environment and human health within or close to minority communities like Indigenous Peoples and Blacks, who often have less political power to resist this harm than people of European descent.
All Wolastoqey/Wəlastəkwey communities in New Brunswick have experienced Environmental Racism such as:
– Municipal garbage dumps (Madawaska & St. Mary’s);
– Hydro Dams that degraded water quality and fishing as well as flooded reserve lands and sweetgrass habitat (Kingsclear, Woodstock, Tobique, Madawaska), and forced some residents to relocate (Woodstock, Tobique). In addition, while many settler graves were relocated in advance of the creation of hydro dam reservoirs, Wolastoqey/Wəlastəkwey burial grounds were flooded and are now inaccessible to community members;
– The creation of Base Gagetown, a large military training base, led to the loss of some Oromocto reserve lands, as well as the spraying of toxic chemicals such as Agent Orange on some local lands and waters. Similarly, a military training facility in Madawaska during WWII degraded land use;
– An above ground Pulp and Paper Mill pipeline leaked nasty substances and blocked access to parts of Madawaska reserve lands.
The Wolastoqiyik/Wəlastəkwiyik are closely connected to their lands and waters, and their culture and well-being depends on access to healthy wild foods. Thus, they are often the people who are at the most risk of harm from the spraying of chemicals on fields and forests, as well as other forms of pollution that affect the plants and animals they consume.
In the past, New Brunswick sprayed toxic chemicals like Agent Orange and DDT across forests. Agent Orange gave people deadly cancer. DDT killed most salmon and trout in some rivers while also causing huge declines in eagles, peregrine falcons, and other birds. Rachel Carson based a chapter, “Rivers of Death,” of her famous environmental book, Silent Spring, on New Brunswick’s deadly aerial spraying program. Today, the province sprays Glyphosate, a chemical Wolastoqiyik/Wəlastəkwiyik and some non-Indigenous governments consider toxic to humans, on forests. Spraying of chemicals like Glyphosate on plants ruins their purity for use in Wolastoqey/Wəlastəkwey ceremony and medicine and thus negatively affects the exercise of rights, traditions, and healing on and from the land.
The Wolastoqiyik/Wəlastəkwiyik have consistently spoken out against activities that degrade the lands, waters, and living creatures of their territory and make it difficult for them to exercise their rights. In the past, however, their voices were largely ignored by non-Indigenous governments and industry. The Wolastoqiyik/Wəlastəkwiyik continue to oppose activities that harm the environment, such as fracking, chemical pollution, and hydro dams with ineffective fish passage, on the one hand, and are also spearheading ecologically just development, such as wind farms and community greenhouses, on the other.
The Wolastoqiyik/Wəlastəkwiyik are in a land crisis because colonization dispossessed them of over 99% of their lands. They can exercise their rights on Crown lands to an extent, but some communities do not have a lot of Crown lands near them, and some Crown lands are leased to forestry companies or used for other purposes, which can restrict or prevent Wolastoqey/Wəlastəkwey use. The Wolastoqiyik/Wəlastəkwiyik face even larger obstacles to exercising their rights on private and industrial freehold lands, and are often prevented from using such lands altogether.
Disclaimer
The Wolastoqey/Wəlastəkwey Rights Manual does not represent any official legal positions of the Wolastoqey Nation in New Brunswick or the 6 Wolastoqey/Wəlastəkwey communities in New Brunswick and in no way modifies, derogates or abrogates from Wolastoqey/Wəlastəkwey Aboriginal and Treaty Rights.
The material in Section 1 of this manual and the historical discussion of Key Wolastoqey/Wəlastəkwey Rights protected by the Peace and Friendship Treaties in Section 2 is the intellectual property of the author, Jason Hall. The remainder of Section 2 is the intellectual property of the Wolastoqiyik/Wəlastəkwiyik, and is therefore owned by them. Reproduction of the parts of Section 2 that is the intellectual property of the Wolastoqiyik/Wəlastəkwiyik or the Manual in its entirety, is not permitted without written permission of the Wolastoqiyik/Wəlastəkwiyik as represented by the Wolastoqey Nation in New Brunswick or any successor organization.
The Wolastoqey Nation in New Brunswick (WNNB) gives technical advice and support to the 6 Wolastoqey/Wəlastəkwey Communities in New Brunswick – Matawaskiye (Madawaska), Neqotkuk (Tobique), Wotstak (Woodstock), Bilijk (Kingsclear), Sitansisk (St. Mary’s), and Welamukotuk (Oromocto) – to ensure that the constitutional duty to consult and accommodate owed to the Wolastoqiyik/Wəlastəkwiyik is fulfilled and Wolastoqey/Wəlastəkwey Aboriginal and Treaty Rights are recognized and respected.
This document and the Wolastoqey Rights Matter Project was funded by Canadian Heritage’s Community Support, Multiculturalism, and Anti-Racism Initiatives Program.
