An Ontario judge has ruled indigenous Canadians do not have an automatic treaty right to disturb fish habitat. .According to Blacklock’s Reporter, the ruling focused on a clause in the Fisheries Act that has been a subject of long-standing dispute..“To find the existence of a treaty right, is to bestow upon a particular activity the highest form of recognition and protection available in Canadian law,” wrote Justice Peter Wright of Ontario Provincial Court. .“Such a finding ought to be made on an appropriate evidentiary foundation. A treaty right cannot be inferred out of a simple desire for it to be so.”.On June 17, 2022, Timothy Barnhart from Tyendinaga, ON, was found guilty of violating the Fisheries Act by illegally dumping infill into the Bay of Quinte..Section 35 of the Fisheries Act states, “No person shall carry on any work or activity that results in the harmful alteration, disruption or destruction of fish habitat.”.Barnhart argued that, as a Mohawk with treaty rights, he was exempt from section 35 and had “a treaty right to modify his land without interference despite the Fisheries Act.”.The Court disagreed..“Even if the evidentiary record supported a finding as to the existence of the claimed treaty rights, which it does not, there is no evidence capable of satisfying the Court that the infilling activity that forms the basis of the charges against the applicant is a logical evolution of a traditional activity protected by the claimed rights,” wrote Justice Wright..Barnhart had no constitutional right to “modify his land as he chooses” for “his enjoyment of it,” wrote the Court. Nor did “his land” extend into the Bay of Quinte, added Justice Wright..Protests by landowners and environmental groups have led Parliament to revise Section 35 twice in the last 11 years..In 2012, the former Conservative cabinet reduced the restrictions to only apply to work that posed “serious harm to fish.”.In 2019, the current Liberal cabinet expanded the ban's scope to its present definition. The Liberals turned down a Senate amendment that would have safeguarded habitats as “water frequented by fish.”.In 2018, farm groups testified at the Commons Fisheries committee, expressing their concerns about the broad ban. .They mentioned the ban was very strict, even applying to simple tasks such as culvert work or bridge repairs over waterways without fish..“The devil is always in the details,” testified Ron Bonnett, then-president of the Canadian Federation of Agriculture. .“The Fisheries Act was cumbersome and created major delays for farmers seeking to do minor work.”.Ray Orb, president of the Saskatchewan Association of Rural Municipalities, complained the blanket ban “applied to all waterways regardless of whether they actually supported fish habitat.” .The law “placed unnecessary regulatory and administrative burdens on municipalities,” testified Orb.
