R. v. Barnhart, 2023 ONCJ 345

ONTARIO COURT OF JUSTICE CITATION: R. v.

Barnhart , 2023 ONCJ 345 DATE: 2023 07 28 COURT FILE No.: 19-190582 BETWEEN: HIS MAJESTY THE KING Respondent — AND — TIMOTHY BARNHART Applicant Before Justice Peter Jeffrey Wright Heard on July 28, 2023 Ruling on Crown’s motion to dismiss Defence’s Constitutional Application Meaghan Lalande............................................................................... counsel for the Crown Stephen Ford………………………………. counsel for the accused, Timothy Barnhart WRIGHT, Peter Jeffrey: HISTORY [ 1 ] Timothy James Barnhart was charged that between the 10 th day of April and the 24 th day of July 2018, at 17 Cedar Glen Road at Tyendinaga, Mohawk Territory of the Province of Ontario in the said region Mohawk Territory: Count 1: Did carry on work, an undertaking or activity that resulted in serious harm to fish, that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, contrary to s. 35(1) of The Fisheries Act , R.S.C. 1985, c.

F-14 , thereby committing an offence under s. 40(1) of The Fisheries Act . Count 2 : Did fail to comply with the whole or any part of a direction of an Inspector or a fishery officer under s. 38(7.1) of The Fisheries Act , R.S.C. 1985, c. F-14 , contrary to s. 40(3) (

g) of The Fisheries Act , thereby committing an offence under s. 40(3) (

g) of The Fisheries Act . [ 2 ] The Constitution Act of Canada provides under s. 35(1) in part that the existing aboriginal and treaty rights of all aboriginal people of Canada are hereby recognized and affirmed.

[ 3 ] The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. The Constitution Act s. 52(1) The Defence Applications 1 – Jurisdiction Issue [ 4 ] Timothy Barnhart challenged the jurisdiction of the Ontario Court of Justice to preside over his trial in relation to the two (2) charges against him under The Fisheries Act .

On December 3 rd , 2020, and following submissions from counsel, the Ontario Court of Justice dismissed the Defendant’s Jurisdictional Challenge. 2 – Constitutional Issue [ 5 ] Timothy Barnhart is an Aboriginal person. He asked the Court for a Declaration that his treaty rights under Simcoe Deed (Treaty 3 ½), as affirmed under s. 35(1) of the Constitution Act were infringed by s. 35 and following and s. 40 and following of The Fisheries Act . 3 – Trial procedures – The Fisheries Act [ 6 ] As a result of a trial management meeting on January 15, 2021, involving Mr.

Stephen Ford as counsel for Timothy Barnhart, and Ms. Carol Sheppard as Federal Crown, the Court settled trial procedure. The Constitutional Challenge raised by Timothy Barnhart would proceed after The Fisheries Act trial and only if Timothy Barnhart were found guilty. THE TRIAL – FISHERIES ACT [ 7 ] The trial regarding the charges under The Fisheries Act against Timothy Barnhart proceeded over a several days in April and May 2021.

Evidence was tendered and submissions were made by counsel at the conclusion of the evidence. [ 8 ] On June 17 th , 2021, this Court delivered oral reasons in which the Applicant was found guilty that: On count 1 between the 10 th day of April and the 24 th day of July, 2018, at 17 Cedar Glen Road, Tyendinaga, Mohawk Territory in the Province of Ontario, count one (1): did carry on work, an undertaking or activity that resulted in serious harm to fish, that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, contrary to s. 35(1) of The Fisheries Act, R.S.C. 1985, c.

F-14 , thereby committing an offence under s. 40(1) of The Fisheries Act and: On count two (2) did fail to comply with the whole or any part of a direction of an inspector or a fishery officer under s. 38(7) of The Fisheries Act, R.S.C. 1985, c. F-14 , contrary to s. 40(3) of The Fisheries Act , thereby committing an offence under s. 40(3) (

g) of The Fisheries Act . The Notice and Amended Notice of Application and Constitutional Issue [ 9 ] Timothy Barnhart proceeded with his Application and Constitutional Issue, following the trial under The Fisheries Act . Timothy Barnhart requested a Declaration of Invalidity of s. 35 and following of The Fisheries Act as it applied against him, pursuant to s. 35 and s. 52 of The Constitution Act (Canada) .

The Notice and amended Notice of Application, willsays of five (5) witnesses – including two (2) persons advanced as experts – together with the Applicant’s materials were filed by the Applicant in support of his Application and constitutional issue – “Constitutional Application”. [ 10 ] The Crown sought an immediate dismissal of the Defendant’s Constitutional Application in which the Applicant requested a Declaration of Invalidity of s. 35(1) and following of The Fisheries Act . [ 11 ] The Crown maintained its motion for dismissal of the Constitutional Application on the basis that the Notice, amended Notice, the facts and the “willsay” statement of the witnesses and the purported expert witnesses – provided no basis upon which the relief sought by Timothy Barnhart under The Constitution Act could be granted. [ 12 ] The Crown relied upon the Supreme Court of Canada in R. v.

Cody [2011] 1 S.C.R. 659 , that a trial court should summarily dismiss an application where the applicant has failed to clearly provide the basis upon which the Constitutional Application can be granted. [ 13 ] Detailed submissions followed by both Crown and Defence – orally and in writing – supporting their respective positions.

This Court ruled that Timothy Barnhart be permitted to present evidence in support of his Constitutional Application for the order he sought under The Constitution Act . [ 14 ] This Court also ordered that the Crown be given time following the presentation of the Constitutional Application evidence in order to prepare for cross-examination of the Applicant’s witnesses and to marshal evidence in reply. [ 15 ] The Applicant proposed to call Veldon Coburn Ph.D. and Lydia Newkirk, Ph.D. as expert witnesses. [ 16 ] Following a lengthy voir dire , this Court ruled that neither Veldon Coburn Ph.D. nor Lydia Newkirk Ph.D. could testify as expert witnesses.

The evidence of Veldon Coburn Ph.D. and Lydia Newkirk Ph.D. was significantly troubled by issues of relevance, qualifications and reliability. The evidence of Veldon Coburn Ph.D. was further troubled by the issue of bias. These troubling features

worked against both Veldon Coburn and Lydia Newkirk in determining that they were not acceptable as expert witnesses to adduceopinion evidence. [17] This Court relied upon the principles set out in the cases of: White, Burgess, Langille et al, 2015 SCC 23. R. v. Mohan (SCC), [1994] 2 S.C.R. 9 R. v. Abbey, 2009 ONCA 624 (Abbey 1) R. v. Abbey, 2017 ONCA 640 (Abbey 2) R. v. Bingley, 2017 SCC 12 ANALYSIS [18] The Applicant was found guilty of two offences pursuant to section 35(1) and section 40(1) of The Fisheries Act.

The Applicanthas brought this Application challenging the constitutionality of those provisions of The Fisheries Act pursuant to The Constitution Act, s.35 and s. 52. [19] The Applicant asserts that he has:

a) an Aboriginal right to clean drinking water;

b) a treaty right to clean drinking water; and

c) a treaty right to modify his land without interference.

It is the Applicant’s position that s. 35(1) and following and s. 40(1) and following of The Fisheries Act breach his constitutional rights,thereby rendering them unconstitutional. [20] It is the Crown’s position that the Application should be dismissed. [21] The assessment of the Applicant’s claim is driven by the specific facts of this case, focusing on the Applicant’s prohibitedactivity that formed the subject matter of the two (2) offences under The Fisheries Act, upon which the Applicant was tried and foundguilty. [22] On June 17, 2021, this Court delivered oral reasons finding the Applicant Timothy Barnhart guilty of both charges against himunder The Fisheries Act. [23] The Applicant had infilled the Bay of Quinte, causing harm to a fishery that is important to his Indigenous community, theMohawks of the Bay of Quinte. [24] The Applicant did so to the detriment of his community and is now seeking refuge through the Application of the veryconstitutional provisions that are intended to protect that community.

The Applicant did what he wanted to do. [25]

Section 35 of The Constitution Act aims to protect Indigenous communities as a whole, and as such, treaty rights and aboriginalrights should be understood as collective rights, belonging to an Indigenous community, rather than to any one individual. [26] There is an inherent conflict in the Applicant claiming that his activity was undertaken in the name of a right belonging to thecommunity, when in fact, the activity which he undertook by infilling the Bay of Quinte for his own purposes had a harmful impact onthat very community. [27] There is a problematic nature in the Applicant’s position, at every juncture of the analysis to be applied.

The evidence tenderedby the Applicant falls well short of demonstrating any prima facie breach of the rights which he claims. 1 – The Law Generally [28] The Applicant’s position is threefold:

(1) That clean drinking water is an Aboriginal right,

(2) That clean drinking water is treaty right, and the incidental to that, he has a right to protect the water source,

(3) That modification of land by the Applicant as a landowner is a treaty right, and, that the Bay of Quinte forms part of theApplicant’s land. The Applicant submits that the impugned provisions of The Fisheries Act s. 35 and following and s. 40 and following, infringe theabove-mentioned rights and therefore are unconstitutional pursuant to s. 35 of The Constitution Act. [29]

Section 35 of The Constitution Act does not create rights. It recognizes existing rights. [30] Both Aboriginal rights and treaty rights are afforded constitutional protection pursuant to s. 35 of The Constitution Act but theyare distinct legal concepts.

[31] The evaluation of a claimed treaty right is conducted through the application of the principles of treaty

interpretation. Thefundamental question to be asked in the consideration of a potential treaty right is: what was the common intention of the parties at thetime of signing of the treaty? The fundamental question to be asked in the consideration of a potential Aboriginal right is: was it a pre-contact-based practice, custom or tradition that was integral to the distinctive culture of the Aboriginal group? While it is important not toconfuse these two separate categories of rights, the two rights contain common features.

Both avenues of analysis drive at anunderstanding of the history behind the modern iteration of a particular activity, with the goal of promoting protections that reflectimportant historical components of an indigenous groups’ way of life. [32] Prior to determining whether there has been a prima facie breach of a right, the Court must necessarily find that such a rightexists. Treaty rights are determined in relation to a specific treaty. The evaluation is to be conducted on a case by cases basis. Aboriginalrights are defined in relation to a specific Indigenous group. They are not universal.

They too are to be determined on a case-by-casebasis. The rights claimed by the Applicant as part of this particular indigenous group and this particular treaty, have not yet beenrecognized by any Court. There is no previous authority that is determinative of the issue. This Court must decide whether the Applicanthas met his onus in establishing the existence of any of the three (3) rights that he claims. 2 – Treaty Rights – The Law [33] Given the application of stare decisis at this level of Court, the

summary conviction appeal decision in R. v. Miracle, is bindingon the Ontario Court of Justice. The Crown submitted that this Court assume for the purposes of deciding this Application, that theSimcoe Deed (Treaty 3 ½) is a Treaty. R. v. Comeau, [2018] S.C.J.

No. 15 at paras. 23-35. [34] The Crown has made its submissions in this case, that the Simcoe Deed be assumed to be a treaty based solely on stare decisis,despite the fact that the Applicant’s own evidence, specifically in respect of the Simcoe Deed (Treaty 3 ½) is that it is not a Treaty.Nevertheless, the Court must still engage in the exercise of analysing each of the specific Treaty rights claimed by the Applicant. Evidence of Seth Lefort, June 13th, 2022 [35] In order to decide which rights are included in a given Treaty, this Court must engage in Treaty

interpretation. The issue is: whatwas the common intention of the parties at the time the treaty was signed? The assessment of the common intention of the parties isconducted by considering both the words of the Treaty itself and also the historical and cultural context behind the Treaty. R. v. Marshall, (SCC), [1999] 3 S.C.R. 456 at paras. 82.83. Restoule v. Canada (Attorney General), [2021] O.J. No. 6228 at para. 108 [36] The analysis is to be guided by principles of Treaty

interpretation, which are summarized below:

a) Aboriginal treaties constitute a unique type of agreement and attract special principles of

interpretation.

b) Treaties should be liberally construed, and ambiguities or doubtful expressions should be resolved in favour of the Aboriginalsignatories.

c) The goal of treaty

interpretation is to choose from among the various possible

interpretations of common intention the one which bestreconciles the interests of both parties, namely the Aboriginal peoples and the Crown at the time the treaty was signed.

d) In searching for the common intention of the parties, the integrity and honour of the Crown is presumed.

e) In determining the signatories’ respective understanding and intentions, the Court must be sensitive to the unique cultural andlinguistic differences between the parties.

f) The words of the treaty must be given the sense which they would naturally have held for the parties at the time.

g) A technical or contractual

interpretation of treaty wording should be avoided.

h) While construing the language generously, Courts cannot alter the terms of the treaty by exceeding what “is possible on thelanguage” or realistic.

i) Treaty rights of Aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. Theinterpreting Court must update treaty rights to provide for their modern exercise. This involves determining what modern practices arereasonably incidental to the core treaty right in its modern context.

j) The Treaties must be interpreted in their historical context. Extrinsic evidence may be used as an aid to

interpretation.

k) Evidence of the historical and cultural context of a treaty may be received even absent any ambiguity on the face of the treaty.

l) When there is evidence about how the parties understood the terms of the treaty, either before or after the treaty, that evidence mayhelp in giving context to the treaty terms. The post-treaty conduct of the parties may therefore assist in the determination of intent. R. v. Marshall, (SCC), [1999] 3 S. C.R. at 456 at para. 78 Saugeen First Nation v. Canada (Attorney General), [2021] OJ. No. 4201 at paras. 623-624. [37] These principles are well settled. The facts of any particular case will make some more salient than others. The principles work

to underscore the constitutional principle of the honour of the Crown in the service of the reconciliation of Aboriginal and non-Aboriginal Canadians. Restoule v. Canada (Attorney General), [2021] O.J. No. 6228 at para. 106 [38] While efforts at reconciliation are an important component of the analysis, treaty rights cannot be determined in a vacuum. Therights asserted by the Applicant here must issue from the treaty itself and must have been created by the treaty. Absent a body ofevidence capable of satisfying the Court of this, the Applicant must fail. R. v.

Vincent (1993), (ON CA), 12 O.R. (3d) 427. 3 – Treaty Rights – Application of the Law [39] In this case, the Applicant alleges two treaty rights: a right to modify the land by the landowner and a right to clean drinkingwater. [40] There is no express language in the Simcoe Deed (Treaty 3 ½) as to either of these rights to modify the land or a right to cleandrinking water.

The Applicant is in essence asking the Court to draw an inference that the language used in the Simcoe Deed (Treaty 3½) was intended to include these rights. [41] The limited evidentiary record put forward by the Applicant in support of this position, has not allowed this Court to engage inany meaningful analysis of a “common intention” to do so. The evidence does not rise to the level that satisfies this Court on a balance ofprobabilities as to a common intention in relation to the rights claimed by the Applicant. [42] The Applicant’s evidence in support of the claims consisted of two (2) witnesses: Mr.

Seth Lefort and Chief R. Donald Maracle.Both witnesses provided “general evidence” only as to the origins of their people at the Bay of Quinte. The Applicant has failed,however, to tender any evidence through either witness as to the particular cultural and historical context of the Simcoe Deed (Treaty 3½) that could assist the Court in determining the common intention of the parties at the time the treaty was signed. [43] Mr. Seth Lefort testified that the Simcoe Deed (Treaty 3 ½) was not in fact a treaty, and as such his evidence was not relevant totreaty

interpretation. Evidence of Mr. Lefort, June 13th, 2022. [44] Chief R. Donald Maracle provided evidence as to the history of the issues the community has faced in relation to clean drinkingwater but did not provide any evidence to substantiate that it related to the Simcoe Deed (Treaty 3 ½). Chief R. Donald Maracle made abald assertion that his people understood the Simcoe Deed (Treaty 3 ½) to include a right to clean drinking water.

This single generalizedassertion is to no assistance to the Court. [45] The Applicant failed to call evidence on the following to assist the Court’s determination of the issue: • The historical events leading up to the signing of the Simcoe Deed (Treaty 3 ½). • The conduct of the parties after the signing of the Simcoe Deed (Treaty 3 ½), in particular as it pertains to the claimed rights atissue. • Cultural evidence as to the respective parties understanding of the specifics of the agreement. • The languages used to communicate in relation to the Simcoe Deed (3 ½). • The historical practices of the Mohawk in relation to drinking water, or land modifications that may have informed theirunderstanding of any agreement. • What would have been the purpose behind protecting the claimed rights if they were in fact intended to be included and whatactivities or practices did they relate to. • What were the larger goals of the Simcoe Deed (Treaty 3 ½) as a whole and does this proposed

interpretation align with thosegoals. • The competing

interpretations of the language used in the Simcoe Deed. • A comparative analysis of other similarly situated agreements. • Whether the British Crown delineated similar rights in other analogous situations. • How to reconcile the claimed individual rights to modify one’s land with the obvious ways in which that right could come intoconflict with potential communal rights. • If the Mohawks of the Bay of Quinte understood there to be some right to water included in the Simcoe Deed (Treaty 3 ½), whatwas the extent of such a right? Was it specific to clean drinking water?

What was the course of the drinking water targeted by the rightat the time (the Bay of Quinte or perhaps some other body of water such as creeks, ponds on the land)? • If the Mohawks of the Bay of Quinte understood there to be some right to clean drinking water included in the Simcoe Deed

(Treaty 3 ½), how was it included in the Simcoe Deed (Treaty 3 ½)? Were there promises made in discussions prior to the treaty beingdrafted? • What activities did the Mohawks of the Bay of Quinte undertake at the time the Simcoe Deed (Treaty 3 ½) was signed in relationto protecting water sources and/or modifying land? [46] In R. v. Marshall; R. v. Bernard 2005 SCC 43 , [2005] 3 C.N.L.R. 214 (Marshall 3), the Supreme Court of Canadaengaged in treaty

interpretation in the consideration of logging rights to be afforded to the Mi’kmaq people of Nova Scotia. TheHonourable Chief Justice McLachlin, writing for the majority, upheld the decisions of both trial judges dismissing the respectiveapplications, because the evidence did not support the expansive

interpretation of rights as argued for by the appellants. Moreover, theevidence did not support a finding that the commercial logging that formed the basis of the charges against the respondents was a logicalevolution of the traditional trading activity protected by the treaties in question. R. v. Marshall; R. v. Bernard, [2005] 2 C.N. L. R. 214 at para. 35 [47] This Constitutional Application by Mr. Timothy Barnhart suffers from the same limitation as existed in R. v. Marshall and R. v.Bernard.

There is simply no evidence from which this Court can ground a conclusion that the Simcoe Deed (Treaty 3 ½) includes therights claimed by the Applicant, namely, a treaty right to clean drinking water and a treaty right to modify his land without interference. [48] Even if the evidentiary record supported a finding as to the existence of the claimed treaty rights, which it does not, there is noevidence capable of satisfying the Court that the infilling activity that forms the basis of the charges against the Applicant is a logicalevolution of a traditional activity protected by the claimed rights. Neither Mr.

Seth Lefort nor Chief R. Donald Maracle testified as tohistorical activities undertaken by the Mohawks of the Bay of Quinte in relation to clean drinking water or land modification, nor didthey provide any evidence as to how those activities would be connected to the illegal infilling that was undertaken by Mr. TimothyBarnhart. [49] To find the existence of a treaty right, is to bestow upon a particular activity the highest form of recognition and protectionavailable in Canadian law. Such a finding ought to be made on an appropriate evidentiary foundation.

A treaty right cannot be inferredout of a simple desire for it to be so. A treaty right must be solidly grounded in the evidentiary record upon which it was considered tosatisfy the Court on a balance of probabilities as to its existence. No such evidentiary record exists in this case and without an evidentiaryfoundation, no constitutional protection exists. The Court is limited to the admissible evidence it receives.

Here the evidentiary recordfalls well short of what is necessary to support the findings the Applicant claims. [50] In the words of Justice Binnie, writing for the Court in Marshall 1, “generous rules of

interpretation should not be confused witha vague sense of after-the fact largesse”. R. v. Marshall, (SCC), [1999] 3 S.C.R. 456 at para. 14. [51] The Applicant has failed to meet his onus on a balance of probabilities as to the existence of the claimed treaty rights. A Brief Comment on Private Ownership of Submerged Lands [52] The Applicant submits that he has a treaty right to “make modifications to the lands including the beds of watercourses that formpart of the tract to ensure that enjoyment”.

The Applicant claims a right to modify his land as he chooses to ensure his enjoyment of itand claims that “his land” extends into the middle of the Bay of Quinte, as a result of the common law principle of “ad medium filumaquae”. (See count 1) Applicant’s Factum at paras. 17-18. [53] The Applicant has not established the existence of the claimed treaty right to modify one’s land without limit. The issue of whatland is the Applicant’s land, need not be determined.

Expressed otherwise, on the evidentiary record before his Court, private ownershipof the Bay of Quinte is not a live issue. [54] Any consideration to the principle of ‘ad medium filum aquae’ should be approached with significant caution. “Ad medium filumaquae’ is a common law concept, which finds its roots in eighteenth century English law. Its application in Ontario has largely beennegated by statute: Bed of Navigable Waters Act S.O. 1911, c. 6, which made the “ad medium filum aquae” presumption inapplicable tonavigable waters in Ontario.

There is no issue that the Bay of Quinte is navigable. [55] The Application of “ad medium filum aquae” was considered and rejected by the Supreme Court of Canada in both R. v. Mikal, (SCC), [1996] 1 S.C.R. 1013, and R. v. Lewis (SCC), [1996] 1 S.C.R. 921. While both cases involvedan analysis that related to western Canada, the factors negating its application in that region of the country are equally true for thenavigable waters in Ontario. [56] In Saugeen First Nation v. Canada (Attorney General), [2021] O.J.

No. 4201, Justice Matheson of the Superior Court of Justice,considered a similar claim in relation to Saugeen First Nation’s ownership to a large portion of the lake bed for Lake Huron. For thereasons submitted above, Justice Matheson rejected the application of this English common law principle. Saugeen First Nation v. Canada (Attorney General), [2021] O.J. No. 4201 at paras. 254-273.

A Brief Comment on Incidental Rights to Protect Clean Drinking Water [57] The Applicant submits that he has a treaty right to clean drinking water, and that incidental to that treaty right exists the right toprotect his clean water source from contamination.

Applicant’s Factum at paras. 24-25. [58] The Applicant has failed to call the necessary evidence to establish a clean drinking water right. [59] The assessment of incidental activities as outlined in the Defence factum must be approached with great caution. While the Courtagrees that it is a ‘reasonable man’ test, the analysis places significant importance on historical context. In R. v.

Sundown, (SCC), [1999] 1 S.C.R. 393, in which the Supreme Court of Canada wrote: In order to determine what is reasonably incidental to a treaty right to hunt, the reasonable person must examine the historical andcontemporary practice of that specific treaty right by the aboriginal group in question to see how the treaty right has been and continuesto be exercised. That which is reasonably incidental is something which allows the claimant to exercise the right in the manner that his orher ancestors did, taking into account acceptable modern developments or unforeseen alterations in the right.

The question is whether theactivity asserted as being treaty right to hunt. The inquiry is largely a factual and historical one. Its focus is not upon the abstract questionof whether a particular activity is “essential” in order for hunting to be possible but rather upon the concrete question of whether theactivity was understood in the past and is understood today as significantly connected to hunting.

Incidental activities are not only thosewhich are essential, or integral, but include, more broadly, activities which are meaningfully related or linked. [60] There is no evidence called by the Applicant in relation to what is “largely a factual and historical” inquiry. 4 – Aboriginal Rights – The Law [61] The analytical approach relating to the consideration of an Aboriginal right is different from that to be used in relation to theconsideration of a treaty right. An Aboriginal right is to be considered with the use of the test laid out, in R. v. Van der Peet, [1996] 2S.C.R. 50.

In the most recent application of the Van der Peet test, the Supreme Court identified the steps of the analysis as follows:

a) Characterize the right claimed in light of the pleadings and evidence.

b) Determine whether the claimant has proven that a relevant pre-contact practice, tradition or custom existed and was integral to thedistinctive culture of the pre-contact society.

c) Determine whether the claimed modern right is “demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice”. R. v. Desautel, [2021] S.C.J. No. 17 at para 51. [62] In order to assess a claim to an Aboriginal right, this Court must first identify the nature of the right being claimed.

To properlyidentify the precise nature of the claim, this court must take into account such factors as the nature of the action said to have been taken,pursuant to an Aboriginal right, the government regulation argued to infringe the right and the practice custom or tradition relied upon toestablish the right. At this stage, Courts are to determine what an Applicant will have to demonstrate to be an aboriginal right in order forthe activities they were engaged in to be encompassed in s. 35(1).

Expressed otherwise, at this stage of the analysis, the Court’s inquiryis tailored to the actual activity undertaken by the Applicant. R. v. Gladstone, (SCC), [1996] S.C.J. No. 79 at paras. 22-23. Lax Kw’alaams Indian Band v. Canada (Attorney General), [2021] 3 S.C.R. 535 at paras. 40-46. [63] The Court must then determine whether the practice, custom or tradition claimed to be an aboriginal right was prior contact withEuropeans which is an integral part of the distinctive Aboriginal society of the particular Aboriginal people in question.

Expressedotherwise, was the practice at issue prior to contact, a defining feature of the distinctive culture of that Aboriginal group? R. v. Gladstone, (SCC), [1996] S.C.J. No. 79 at paras 22-23. Lax Kw’alaams Indian Band v. Canada (Attorney General), [2021] 3 S.C.R. 535 at paras. 40-46. R. v. Desautel, [2021] S.C.J. No. 17 at para 51. [64] The relevant time period to which the Courts must look in identifying Aboriginal rights is “the period prior to contact betweenAboriginal and European societies”.

The doctrine of Aboriginal rights exists, and is recognized and affirmed by s. 35(1), because whenEuropeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating indistinctive cultures, as they had done for centuries. The goal for the Courts is to determine how the claimed right relates to pre-contactculture or way of life of an aboriginal society. R. v. Sappier; R. v. Gray, 2006 SCC 54 , [2006] S.C.J. No. 54 at para. 22. [65] Evidence as to the relevant pre-contact practice is critical to the success of such an Application. R. v. Sappier; R. v.

Gray, theSupreme Court of Canada identified the importance of such evidence with the following passage: The importance of leading evidence about the pre-contact practice upon which the claimed right is based should not be understated. Inthe absence of such evidence, Court will find it difficult to relate the claimed right to the pre-contact way of life of the specific aboriginalpeople, so as to trigger s. 35 protection.

R. v. Sappier; R. v. Gray, 2006 SCC 54 , [2006] S.C.J. No. 54 at para. 22. [66] In R. v. Desautel, [2021] S.C.J. No. 17, once the Court has found that a relevant pre-contact practice, tradition or custom existedand was integral to the distinctive culture of the pre-contact society, the Court must determine whether the claimed modern right is“demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice”. This nexus between the pre-contactpractice custom or tradition, and the modern claimed right is integral to the success of a given claim. R. v. Desautel, [2021] S.C.J.

No. 17 at para. 51. Mitchell v. Canada (Minister of National Revenue), 2001 SCC 33 , [2001] 1 S.C.R. 911 at para. 13. [67] Courts have identified various guiding principles to be applied. These principles are summarized as follows: • The Applicant must do more than establish that the practice was part of the Aboriginal society, they must instead demonstrate thatthe practice was one of the things that made the culture of the society distinctive, that it was one of the things that truly made the societywhat it was.

One must ask, was it a defining feature of the society? • While the relevant time period is pre-contact, the Aboriginal group claiming the right must not be expected to accomplish the nearimpossible task of producing conclusive evidence from pre-contact times about the practices, customs and traditions of their community.The evidence relied upon may relate to Aboriginal practices post contact, but it must be directed at demonstrating which aspects of theAboriginal community and society have their origins in pre-contact.

It is those practices that can be rooted in the pre-contact origins ofthe Aboriginal community in question that will constitute Aboriginal rights.

This has been described as the continuity requirement – therequirement that a practice which is integral to the community now be shown to have continuity with practices which existed prior tocontact. • In determining whether the Applicant has produced sufficient evidence to demonstrate that his activity is an aspect of a practiceintegral to a distinctive Aboriginal culture, the Courts should approach the rules of evidence, and interpret the evidence that exists, with aconsciousness of the special nature of Aboriginal claims, and of the evidentiary difficulties in proving a right which originates in timeswhere there were no written records. • The consideration of a claim must focus specifically in the practices of a particular Aboriginal group. • Courts must ensure that the practice relied upon in a particular case is independently significant to the aboriginal communityclaiming the right.

The practice cannot exist simple as an incident to another practice. • There is a difference between a distinct cultural practice, meaning that it is a practice unique to that group, and a distinctivepractice, meaning that the practice makes the culture what it is, quite apart from whether any other group also engages the same practice.An Applicant need only demonstrate that a practice is distinctive to their culture, not that it is unique to their culture. • The Court should also consider how that practice may have evolved to its present-day form.

It has long been recognized thataboriginal rights are not frozen in their pre-contact form, and that an ancestral right may find a modern expression. • What is meant by culture is really an inquiry into the pre-contact way of life of a particular aboriginal community, including theirmeans of survival, their socialization methods, their legal systems, and potentially their trading habits.

The use of the word “distinctive”as a qualifier is meant to incorporate an element of Aboriginal specificity. • While there is no such thing as Aboriginal right to sustenance, traditional means of sustenance, meaning pre-contact practicesrelied upon for survival, can in some cases, be considered integral to the distinctive nature of the culture of the particular Aboriginalpeople • Aboriginal rights are not universal, their scope and content must be considered on a case-by-case basis. • The practice relied upon in a particular case is independently significant to the Aboriginal community claiming the right.

Thepractice cannot simply exist as an incident to another practice but must rather be itself integral to the Aboriginal society. Where twocustoms exist and one is merely incidental to the other, the custom which is integral to the Aboriginal community in question will qualifyas an Aboriginal right, but the custom that is merely incidental will not. • Specifically, in the identification of the relevant pre-contact practice is necessary. In R. v. Pamajewon, (SCC),[1996] 2 S.C.R. 821 the appellants themselves would have the Court characterize their claim as “a broad right to manage the use of theirreserve lands”.

To do characterize the appellant’s claim would be to cast the Court’s inquiry at a level of excessive generality. Aboriginalrights, including any asserted right to self-government, must be looked at in light of the specific circumstances of each case and, inparticular, in light of the specific history and culture of the aboriginal group claiming the right. • An Aboriginal right cannot be characterized as a right to a particular resource because to do so would be to treat it as akin to acommon law property right.

The Supreme Court of Canada has rejected the application of traditional common law property concepts tosuch rights. R. v. Van der Peet, [1996] 2 S.C.R. 50 at paras. 52-71 R. v. Sappier; R. v. Gray, 2006 SCC 54 , [2006] S.C.J. No. 54 at paras 21-48. R. v. Gladstone, (ON SC), [1996] O.J. NO. 79 at para. 28. 5 – Aboriginal Right – Application of the Van der Peet test

[68] The first step of the Van der Peet test requires the Court to clearly define the claim at issue. The Court must consider such factorsas:

a) The nature of the action said to have been taken pursuant to an Aboriginal right,

b) The government regulation argued to infringe the right, and

c) The practice, custom or tradition relied upon to establish the right. [69] In order to be characterized as an Aboriginal right pursuant to s. 35 of The Constitution Act, an activity must be an element of apractice, custom or tradition. An Aboriginal right must be an activity undertaken by the Aboriginal group. An Aboriginal right, pursuantto s. 35 of The Constitution Act, cannot be characterized as a right to a particular resource, because to do so, would be to treat it as akin toa common law property right.

The Supreme Court of Canada has rejected the application of traditional common law property concepts tospecial category of rights. R. v. Sappier; R. v. Gray, 2006 SCC 54 , [2006] S.C.J. No. 54 at para. 21. [70] The Applicant has framed his Application as pertaining to a right to a resource, namely clean drinking water. Applicant’s Factum at paras. 19-21. This approach has been prohibited by the Supreme Court of Canada, and consequently must fail. R. v. Sappier; R. v. Gray, 2006 SCC 54 , [2006] S.C.J.

No. 54 at para. 21. [71] In Sappier and Gray, the Court considered an Aboriginal rights claim centered on the importance of a resource, that beingtimber. The Court sought to grasp the importance of the resource to the particular Aboriginal group, (through evidence presented at trial)by examining the specifics as to how that resource was harvested, extracted and utilized. These practices, the Court stated, “are thenecessary “Aboriginal” component in Aboriginal rights”.

The timber itself cannot form the basis of an Aboriginal rights claim, bur ratherthe analysis is to be focused on the manner in which timber was used by the community in issue, and why those particular practices areimportant (integral) to the distinctive culture of the collective (community). R. v. Sappier; R. v. Gray, 2006 SCC 54 , [2006] S.C.J. No. 54 at para. 21. [72] The Applicant has failed to identify a specific practice upon which he is founding his claim, either in his written materials or inany oral submissions.

The Applicant makes only a singular generalized statement that the “process of harvesting clean water fordomestic and survival use includes the right to take such steps as are reasonably necessary to protect the source of the clean drinkingwater”. Applicant’s Factum at para. 27. [73] While the first stage of the Van der Peet test allows the Court to assist in characterizing the claim, the Court cannot do so withouta basis. A generalized comment such as “to harvest clean water and protecting the source”, absent any detail or evidence is of littleassistance.

In Lax Kw’alaams Indian Band, the Supreme Court considered a trial judge’s role at this stage of the Van der Peet analysisstating: The relevance of evidence is tested by reference to what is in issue. The statement of claim (which here did undergo significantamendment) defines what is in issue. The trial of an action should not resemble a voyage on the Flying Dutchman with a crewcondemned to roam the seas interminably with no set destination and no end in sight. Lax Kw’alaams Indian Band v.

Canada (Attorney General), [2021] 3 S.C.R. 535 at paras. 40-46. [74] Given the absence of evidence, it is difficult to ascertain how the Court can define the claim of the Applicant properly at the firststage of the Van der Peet test. Expressed otherwise, what is the pre-contact practice, tradition or custom that was integral to thedistinctive culture of the pre-contact society practice?

What is the connection between that pre-contact unknown practice and theclaimed modern right? [75] In most cases, there is a direct connection between the prohibited activity, the historical practice at issue, and the claimed right.For example, where a person selling fish, is charged in relation to a

section prohibiting the sale of fish, the historical practice is the pre-contact custom of selling fish, which was integral to the distinctive culture of the community at issue, and the claimed right is the abilityto sell fish in the modern context. In this case, the nexus is entirely unclear, particularly given that the activity that forms the subjectmatter of the charges faced by the Applicant (infilling) is unlikely to have existed in pre-contact world in any form. Nor has any evidencebeen adduced as to how infilling is related to clean drinking water.

There are significant evidentiary gaps in the Application that aremissing. [76] It is not for the Court to put together a report on what Aboriginal rights might be. Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 , [2011] 3 S.C.R. 535 at para. 11.

[77] Even if the Court were able to define the claim pursuant to a practice, it must be based on evidence. The Applicant’s failure to doso means that the Application fails at the next stage of the Van der Peet test. There is no evidentiary record, that would allow this Courtto determine whether the activity was an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginalgroup of which the Applicant claims to be a member. [78] Mr. Seth Lefort and Chief R. Donald Maracle provided “general information” only as to the history of the Mohawk of the Bay ofQuinte in broad strokes.

Neither witness provided any evidence as historical practice custom or tradition relating to clean drinking water,nor any evidence as to the continuity of that practice prior to contact with Europeans at the Bay of Quinte. [79] The Simcoe Deed (Treaty 3 ½) itself notes that the presence of the Mohawks of the Bay of Quinte at Tyendinaga arose post-contact. The land was purchased from the Mississaugas by the Crown and then provided to the predecessors of the Mohawks of the Bayof Quinte. [80] The Court is left with an absence of evidence as to all of the following:

a) How did the Mohawks of the Bay of Quinte harvest water (i.e., what is the practice)? Did they engage more than one practice to doso?

b) Did the Mohawks of the Bay of Quinte rely on the Bay of Quinte as a water source, or another source?

c) Did the Mohawks of the Bay of Quinte face challenges in relation to their drinking water being “clean”?

d) What evidence is there in terms of continuity of the practice, so as to establish a connection to Aboriginal group pre-Europeancontact?

e) Given the focus of the analysis is pre-European contact, how does the Applicant reconcile this with the fact that the Mohawks of theBay of Quinte arrived after the American Revolution?

f) How and why the practice is integral to the distinctive culture of the group?

g) What did the practice look like historically as compared to its modern iteration?

h) Is the practice communal – relating to the group, rather than just to Mr. Timothy Barnhart as an individual?

i) Did previous versions of this practice cause potential harm to fish and fish habitat?

j) If so, what was the interplay between the importance of fishing and the harvesting water practices? [81] In Van der Peet, the Supreme Court dismissed the appeal, finding that the appellant failed to call the necessary evidence so as todemonstrate that the exchange of fish was an integral part of the distinctive society prior to contact. As a result of the appellant’s failureto establish the existence of the claimed right, the Court did not engage in any further analysis (as to a breach of that right). R. v.

Van der Peet, [1996] 2 S.C.R. 50 at paras. 91-92. [82] In Lax Kw’alaams Indian Band, the Court dismissed the Band’s appeal as to Aboriginal right to harvest and sell fish on acommercial scale. The trial judge had not been persuaded that the Coast Tsimshian people’s pre-contact customs, practices and traditionssupported such an Aboriginal right. To the limited extent that the Coast Tsimshian traded in fish and fish products, such trade wasspecific to a product derived from a single species, the eulachon.

Trade in fish more generally was not integral to their distinctive societyand thus did not provide a foundation for a s. 35(1) Aboriginal right to a modern wealth-generating “industrial” fishery. The trial judgeconcluded that transformation of the pre-contact eulachon grease trade into a modern commercial fishery would not be “evolution” butthe creation of a different right. On that basis, the claim failed both the integrality and continuity requirements of the Van der Peet test.This conclusion was upheld by both the British Columbia Court of Appeal and the Supreme Court of Canada. Lax Kw’alaams Indian Band v.

Canada (Attorney General), 2011 SCC 56 , [2011] 3 S.C.R. 535 at para. 2 [83] In Mitchell v. Canada, 2001 SCC, the Court reversed findings made by the trial judge, emphasizing the importance of a properevidentiary foundation. This concern is highlighted with the following passage from the decision: As discussed in the previous section, claims must be proven on the basis of cogent existence establishing their validity on the balance ofprobabilities. Sparse, doubtful and equivocal evidence cannot serve as the foundation for a successful claim. With respect, this is exactlywhat has occurred in the present case.

The contradiction between McKeown J’s statement that little direct evidence supports a cross-rivertrading right and his conclusion that such a right exists suggests the application of a very relaxed standard of proof (or, perhaps moreaccurately, an unreasonably generous weighing of tenuous evidence). The Van der Peet approach, while mandating the equal and duetreatment of evidence supporting aboriginal claims, does not bolster or enhance the cogency of this evidence.

The relevant evidence inthis case – a single knife, treaties that make no reference to pre-existing trade, and the mere fact of Mohawk involvement in the fur trade– can only support the conclusion reached by the trial judge if strained beyond the weight they can reasonably hold. Such a result is notcontemplated by Van der Peet or s. 35(1). While appellate Courts grant considerable deference to findings of fact made by trial judges, Iam satisfied that the findings in the present case represent a “palpable and overriding error” warranting the substitution of a differentresult (Delgamuukw, supra at paras. 78-80).

I conclude that the claimant has not established an ancestral practice of transporting goodsacross the St. Lawrence River for the purposes of trade. Mitchell v. Canada 2001 SCC at para. 51

[84] In the present Application, much like the facts of Mitchell, the evidentiary record is extremely thin. The evidence provided byMr. Seth Lefort and Chief R. Donald Maracle, while afforded equal and due treatment as an important perspective reflecting thecommunity’s history, cannot be strained beyond the weight it can reasonably hold.

Their evidence was silent as to a pre-contact practice,custom or tradition integral to the distinctive culture of the community, and such, it is simply not capable of satisfying the Court as to theexistence of an Aboriginal right. 5 – Prima facie Breach or the Sparrow Test – The Law [85] Even if the Court were to disagree with the Crown’s position and be satisfied on a balance of probabilities as to the existence of aclaimed treaty right or Aboriginal right, the analysis must continue, in order to determine whether the Applicant has established a primafacie breach of that right. [86] In R. v.

Sparrow, (SCC), [1990] 1 S.C.R. 1075, the Supreme Court of Canada lays out the test for determiningwhether or not the impugned provisions have infringed the right at issue. The test is the same, whether the right has been identified as atreaty right, or an Aboriginal right. R. v. Marshall, [1993] 3 S.C.R. 456 at para. 64. [87] When evaluating a potential infringement, the first question to be asked is whether the legislation in question has the effect ofinterfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringement of s. 35(1).

Todetermine whether a right has been interfered with so as to constitute a prima facie infringement of s. 35(1), three questions need to beasked:

a) Is the limitation reasonable?

b) Does the regulation impose undue hardship?

c) Does the regulation deny to the holders of the right their preferred means of exercising that right? R. v. Gladstone, (SCC), [1996] S.C.J. No. 79 at para. 39 [88] These answers need not all weigh in favour of the Applicant in order to support a finding that prima facie breach has occurred.Instead, it is a weighing of these that ought to guide the Court in its overall assessment of whether the purpose or effect of the restrictionunnecessarily infringes the interests protected by the right. R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075 R. v. Gladstone, (SCC), [1996] S.C.J.

No. 79 at para 43. [89] The onus of proving a prima facie infringement lies on the individual challenging the legislation. R. v. Gladstone, (SCC), [1996] S.C.J. No. 79 at para. 39 [90] If a prima facie breach of the right is established by the individual challenging the legislation, the onus then shifts to the Crownto justify that infringement. This is the second stage of the Sparrow test. Should the Court disagree with the Crown’s position as to theApplicant’s failure to demonstrate the existence of a right, additional time will be set aside for the parties to move into the next stage ofthe proceedings. R. v.

Gladstone, (SCC), [1996] S.C.J. No. 79 at para. 54. 6 – Sparrow Test – Step 1 – Prima facie Breach – Application of the Law [91] Even if the Court were to disagrees with the Crown’s submissions and find that the claimed rights exist via the Simcoe Deed(treaty 3 ½) or in the alternative as an Aboriginal right, the Application still fails, as the Applicant has not established an evidentiarybased prima facie breach of the claimed rights. [92] The question to be asked at this stage is whether the legislation in question has the effect of interfering with an existingAboriginal or treaty right.

There is no evidence as to how the legislation in question has had the effect of interfering with a claimed right.The impugned provisions of The Fisheries Act prohibit the Applicant from undertaking work that can harm fish or fish habitat. Theactivity in question was an infill in the Bay of Quinte. A claimed right to modify one’s land as one’s sees fit does not relate to theinfilling by the Applicant in the Bay of Quinte.

The Bay of Quinte is not the Applicant’s land. [93] Additionally, there was no evidence presented as to how prohibited infilling impacted the Applicant’s claimed right to cleandrinking water, or how the infilling would have achieved the objective of clean drinking water. [94] Given the significant gaps in the evidentiary record, it is impossible for this Court to ascertain the connection between theprovisions of and the claimed right to clean drinking water, quite apart from any interference with those rights. [95] The factors identified in Sparrow require the Court to consider:

a) Is the limitation reasonable?

b) Does the regulation impose undue hardship?

c) Does the regulation deny to the holders of the right their preferred means of exercising that right? [ 96 ] There is ample evidence to support a finding that any perceived limitation to the right was reasonable, that the impugned provisions of The Fisheries Act and that those impugned provisions did not impose undue hardship, and that those impugned provisions did not deny to holders of the right their preferred means of exercising that right. [ 97 ] Expert witness Bill Glass testified as to the detrimental and significant impact of the infill on fish habitat.

The importance of environmental protections serves to justify the reasonableness of the limitations imposed to by The Fisheries Act on in-water works. This is magnified by the fact that the area in question is an Aboriginal fishery relied upon by the community as a whole. It was, in fact, personnel working for the Mohawks of the Bay of Quinte (Nicole Storms) who originally investigated the complaint and alerted the Department of Fisheries and Oceans as to the occurrence. Notably, the infilling was in breach of Mohawk of the Bay of Quinte community policies as well.

Reasons for Judgment, issued June 17 th , 2021 Expert Report of Bill Glass, Trial Exhibit # 5 Transcript, Testimony of Bill Glass, February 7 th , 2021 Transcript, Testimony of Nicole Storms, April 6 th , 2021 [ 98 ] Mr. Glass also testified as to the process that Mr. Timothy Barnhart could have engaged, wherein Fisheries would have reviewed his proposal for an in-water work and could have made suggested changes and modifications to the project that may have resulted in its approval and limited the harm to the fish habitat in question. The process itself was not burdensome, yet Mr.

Timothy Barnhart made no attempt to engage it. Mr. Glass provided concrete examples of suggested modifications, like the timing of the work (to avoid spawning season), or the installation of a proper sediment curtain to limit the harmful spread of sediment during construction, that would likely have been suggested had Mr. Timothy Barnhart submitted his proposals. These modifications would have served to limit the damage caused to fish habitat.

Transcript, Testimony of Bill Glass, April 8 th , 2021, at p. 5-14. [ 99 ] Additionally, this Court heard evidence as to other means to protect the shoreline that would not have impacted the fish habitat in question. Fishery officer Phil Curtis testified to other options such as building a retaining wall upward, (as opposed to infilling outward), or raising the tiles on the well. These are reasonable alternatives, that may have allowed Mr. Timothy Barnhart to achieve his intended goal. Mr. Timothy Barnhart chose not to do so.

Transcript, Testimony of Phil Curtis, April 7 th , 2021 [ 100 ] The Applicant has failed to establish a prima facie breach of the right on a balance of probabilities. There is no evidence as to exactly how the provisions interfere with a right to clean water or a right to modify one’s land. Moreover, what evidence is before the Court, lends itself to a conclusion that any perceived limitation is reasonable, and that the accused has suffered no undue hardship. 7 – Conclusion [ 101 ] The assessment of rights is to be determined on a case-by-case basis.

The analysis is driven by the facts in evidence, Treaty rights and Aboriginal rights which are communal in nature, belonging to an Indigenous group. On the facts of this case, it is impossible to ascertain how the impugned activity could be a modern expression of a communal right. [ 102 ] Mr. Timothy Barnhart undertook an activity that caused harm to a fishery that is an important communal resource. The evidentiary record presented at trial supports a conclusion that Mr. Timothy Barnhart’s actions were to his benefit and to the detriment of the community. The Application is entirely focussed on Mr.

Timothy Barnhart as an individual. There was no evidence presented by the Applicant as to how the Mohawks of the Bay of Quinte might understand the claimed rights.

There is an inherent conflict by which Timothy Barnhart is claiming an activity was undertaken in the name of a right belonging to the community, when Timothy Barnhart’s activity had a harmful impact on that very community. [ 103 ] Putting aside the internal conflict in the Applicant’s position, the lack of evidence called by the Applicant does not allow for the validity of his claims on a balance of probabilities. [ 104 ] In Mitchell , the Supreme Court of Canada emphasized the need for a persuasive body of the evidence to support a finding as to the existence of right which will be afforded constitutional protection with the following passage: There is a boundary that must be crossed between a sensitive application and a complete abandonment of the rules of evidence.

As Binnie J. observed in the context of treaty rights, “[g] enerous rules of

interpretation should not be confused with a vague sense of after- the-fact largesse” ( R. v. Marshall , [199] 3 S.C.R. 456, at para. 14 ). In particular, the Van der Peet approach does not operate to amplify the cogency of evidence adduced in support of an aboriginal claim. Evidence advanced in support of aboriginal claims, like the evidence offered in any case, can turn the gamut of cogency from the highly compelling to the highly dubious. Claims must still be established on the basis of persuasive evidence demonstrating their validity on the balance of probabilities .

Placing “due weight” on the aboriginal perspective or ensuring its supporting evidence an “equal footing” with more familiar forms of evidence, means precisely what these phrases suggest: equal and due treatment. While the evidence presented by aboriginal claimants should not be undervalued “simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tors case” ( Van der Peet, supra , at para 68), neither should it be artificially strained to carry more weight than it can reasonably support. If

this is an obvious proposition, it must nonetheless be stated. [ 105 ] In R. v. Marshall; R. v. Bernard , Justice LeBel noted the challenges inherent to the adjudication of Aboriginal rights issues at the criminal trial level: Although many of the aboriginal rights cases that have made their way to this Court began by way of

summary conviction proceedings, it is clear to me that we should re-think the appropriateness of litigating aboriginal treaty, rights and title issues in the context of criminal trials. The issues that are determined in the context of these cases have little to do with the criminality of the accused’s conduct; rather, the claims would properly be the subject of civil actions for declarations. Procedural and evidentiary difficulties inherent in adjudicating aboriginal claims arise not only out of the rules of evidence, the

interpretation of evidence and the impact of the relevant evidentiary burdens but also out of the scope of appellate review of the trial judge’s findings of fact. These claims may also impact on the competing rights and interests of a number of parties who may have a right to be heard at all stages of the process. In addition, special difficulties come up when dealing with broad title and treaty rights claims that involve geographic areas extending beyond the specific sites relating to the criminal charges.

There is little doubt that the legal issues to be determined in the context of aboriginal rights claims are much larger than the criminal charge itself and that the criminal process is inadequate and inappropriate for dealing with such claims. [ 106 ] The concurrence written by LeBel, J. is picked up again by the majority in Desautel , wherein the passage above is reproduced by the Court in identifying that “criminal and regulatory proceedings have inherent limits proper to their nature.” R. v. Desautel , [2021] S.C.J.

No. 17 at para. 90 [ 107 ] While there can be no doubt that issues surrounding access to clean drinking water are of considerable importance, it is likely that that issue will be considered in other contexts and on a more fulsome body of evidence that lends itself to a meaningful and thorough review that is necessary. The Court can only consider the evidence put before it on the record in this case and is limited to an assessment of the actual facts in this case. A finding of this significance, to be afforded the highest protections in Canadian law, cannot be inferred from an absence of evidence.

Much like in Mitchell , what little evidence has been presented here cannot be “artificially strained” to carry more weight than it can reasonably support. 8 – Order [ 108 ] The evidence presented by Timothy Barnhart does not support his Application for a Declaration of Invalidity of s. 35 and following of The Fisheries Act pursuant to ss. 35 and 52 of The Constitution Act. Timothy Barnhart’s Application for a Declaration of Invalidity is dismissed. Released: July 28, 2023 Signed: Justice Peter Jeffrey Wright