Judge Rules Indigenous Peoples Cannot Bypass Fisheries Act

Rich Lake, Ont. in a file photo. Indigenous peoples have no automatic treaty right to disturb fish habitat, an Ontario judge has ruled. AP Photo/Mary Esch

An Ontario judge has ruled that indigenous Canadians do not have an inherent treaty right to disrupt fish habitat, with the focus of the decision centred on a contentious clause of the Fisheries Act, according to Blacklock’s Reporter.

“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 the 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 of Tyendinaga, Ont., was found guilty of dumping infill into the Bay of Quinte, an activity prohibited by the Fisheries Act. Section 35 states: “No person shall carry on any work or activity that results in the harmful alteration, disruption or destruction of fish habitat.”

Mr. Barnhart contended that as a member of the Mohawk indigenous peoples, he was exempt from the Fisheries Act and possessed the “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,” Justice Wright wrote.

Mr. Barnhart had no right under the Constitution to “modify his land as he chooses” for “his enjoyment of it,” the court said, nor did “his land” extend into the Bay of Quinte.

‘Cumbersome’

Objections by landowners and environmental groups have resulted in Parliament rewriting Section 35 twice during the last 10 years. In 2012, the previous Conservative cabinet tightened up restrictions to work that presented “serious harm to fish.”

In 2019, Prime Minister Justin Trudeau’s Liberal government expanded Section 35 to its present definition and in doing so dismissed a Senate amendment that would have defined protected habitat as “water frequented by fish.”

During testimony at the Commons fisheries committee in 2018, farm groups expressed concern about the extent of the ban, stating that it was so burdensome it even applied to activities like culvert work or bridge repairs over waterways where no fish were present.

“The devil is always in the details,” testified Ron Bonnett, then president of the Canadian Federation of Agriculture, as reported by Blacklock’s. “The Fisheries Act was cumbersome and created major delays for farmers seeking to do minor work.”

Ray Orb, the president of the Saskatchewan Association of Rural Municipalities, said the blanket ban “applied to all waterways regardless of whether they actually supported fish habitat” and that the law “placed unnecessary regulatory and administrative burdens on municipalities.”