[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:

[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)

[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.

[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.

[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.

[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:

[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 adduce opinion evidence.

[17]      This Court relied upon the principles set out in the cases of:

[18]      The Applicant was found guilty of two offences pursuant to section 35(1) and section 40(1) of The Fisheries Act. The Applicant has 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:

[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 prohibited activity that formed the subject matter of the two (2) offences under The Fisheries Act, upon which the Applicant was tried and found guilty.

[22]      On June 17, 2021, this Court delivered oral reasons finding the Applicant Timothy Barnhart guilty of both charges against him under The Fisheries Act.

[23]      The Applicant had infilled the Bay of Quinte, causing harm to a fishery that is important to his Indigenous community, the Mohawks 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 very constitutional 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 aboriginal rights 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 the community, when in fact, the activity which he undertook by infilling the Bay of Quinte for his own purposes had a harmful impact on that very community.

[27]      There is a problematic nature in the Applicant’s position, at every juncture of the analysis to be applied. The evidence tendered by the Applicant falls well short of demonstrating any prima facie breach of the rights which he claims.

[28]      The Applicant’s position is threefold:

[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 they are distinct legal concepts.

[31]      The evaluation of a claimed treaty right is conducted through the application of the principles of treaty interpretation. The fundamental question to be asked in the consideration of a potential treaty right is: what was the common intention of the parties at the time 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 to confuse these two separate categories of rights, the two rights contain common features. Both avenues of analysis drive at an understanding of the history behind the modern iteration of a particular activity, with the goal of promoting protections that reflect important 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 right exists. Treaty rights are determined in relation to a specific treaty. The evaluation is to be conducted on a case by cases basis. Aboriginal rights are defined in relation to a specific Indigenous group. They are not universal. They too are to be determined on a case-by-case basis. The rights claimed by the Applicant as part of this particular indigenous group and this particular treaty, have not yet been recognized by any Court. There is no previous authority that is determinative of the issue. This Court must decide whether the Applicant has met his onus in establishing the existence of any of the three (3) rights that he claims.

[33]      Given the application of stare decisis at this level of Court, the summary conviction appeal decision in R. v. Miracle, is binding on the Ontario Court of Justice. The Crown submitted that this Court assume for the purposes of deciding this Application, that the Simcoe Deed (Treaty 3 ½) is a Treaty.

[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.

[35]      In order to decide which rights are included in a given Treaty, this Court must engage in Treaty interpretation. The issue is: what was the common intention of the parties at the time the treaty was signed? The assessment of the common intention of the parties is conducted by considering both the words of the Treaty itself and also the historical and cultural context behind the Treaty.

[36]      The analysis is to be guided by principles of Treaty interpretation, which are summarized below:

[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.

[38]      While efforts at reconciliation are an important component of the analysis, treaty rights cannot be determined in a vacuum. The rights asserted by the Applicant here must issue from the treaty itself and must have been created by the treaty. Absent a body of evidence capable of satisfying the Court of this, the Applicant must fail.

[39]      In this case, the Applicant alleges two treaty rights: a right to modify the land by the landowner and a right to clean drinking water.

[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 clean drinking water. The Applicant is in essence asking the Court to draw an inference that the language used in the Simcoe Deed (Treaty 3 ½) 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 in any meaningful analysis of a “common intention” to do so. The evidence does not rise to the level that satisfies this Court on a balance of probabilities 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 3 ½) 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 to treaty interpretation.

[44]      Chief R. Donald Maracle provided evidence as to the history of the issues the community has faced in relation to clean drinking water but did not provide any evidence to substantiate that it related to the Simcoe Deed (Treaty 3 ½). Chief R. Donald Maracle made a bald assertion that his people understood the Simcoe Deed (Treaty 3 ½) to include a right to clean drinking water. This single generalized assertion 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:

[46]      In R. v. Marshall; R. v. Bernard 2005 SCC 43 (CanLII), [2005] 3 C.N.L.R. 214 (Marshall 3), the Supreme Court of Canada engaged in treaty interpretation in the consideration of logging rights to be afforded to the Mi’kmaq people of Nova Scotia. The Honourable Chief Justice McLachlin, writing for the majority, upheld the decisions of both trial judges dismissing the respective applications, because the evidence did not support the expansive interpretation of rights as argued for by the appellants. Moreover, the evidence did not support a finding that the commercial logging that formed the basis of the charges against the respondents was a logical evolution of the traditional trading activity protected by the treaties in question.

[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 the rights 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 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. Neither Mr. Seth Lefort nor Chief R. Donald Maracle testified as to historical activities undertaken by the Mohawks of the Bay of Quinte in relation to clean drinking water or land modification, nor did they provide any evidence as to how those activities would be connected to the illegal infilling that was undertaken by Mr. Timothy Barnhart.

[49]      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. 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. A treaty right must be solidly grounded in the evidentiary record upon which it was considered to satisfy the Court on a balance of probabilities as to its existence. No such evidentiary record exists in this case and without an evidentiary foundation, no constitutional protection exists. The Court is limited to the admissible evidence it receives. Here the evidentiary record falls 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 with a vague sense of after-the fact largesse”.

[51]      The Applicant has failed to meet his onus on a balance of probabilities as to the existence of the claimed treaty rights.

[52]      The Applicant submits that he has a treaty right to “make modifications to the lands including the beds of watercourses that form part of the tract to ensure that enjoyment”. The Applicant claims a right to modify his land as he chooses to ensure his enjoyment of it and claims that “his land” extends into the middle of the Bay of Quinte, as a result of the common law principle of “ad medium filum aquae”. (See count 1)

[53]      The Applicant has not established the existence of the claimed treaty right to modify one’s land without limit. The issue of what land is the Applicant’s land, need not be determined. Expressed otherwise, on the evidentiary record before his Court, private ownership of 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 filum aquae’ is a common law concept, which finds its roots in eighteenth century English law. Its application in Ontario has largely been negated by statute: Bed of Navigable Waters Act S.O. 1911, c. 6, which made the “ad medium filum aquae” presumption inapplicable to navigable 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, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013, and R. v. Lewis 1996 CanLII 243 (SCC), [1996] 1 S.C.R. 921. While both cases involved an analysis that related to western Canada, the factors negating its application in that region of the country are equally true for the navigable 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 the reasons submitted above, Justice Matheson rejected the application of this English common law principle.

[57]      The Applicant submits that he has a treaty right to clean drinking water, and that incidental to that treaty right exists the right to protect his clean water source from contamination.

[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 Court agrees that it is a ‘reasonable man’ test, the analysis places significant importance on historical context. In R. v. Sundown, 1999 CanLII 673 (SCC), [1999] 1 S.C.R. 393, in which the Supreme Court of Canada wrote:

[60]      There is no evidence called by the Applicant in relation to what is “largely a factual and historical” inquiry.

[61]      The analytical approach relating to the consideration of an Aboriginal right is different from that to be used in relation to the consideration 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] 2 S.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:

[62]      In order to assess a claim to an Aboriginal right, this Court must first identify the nature of the right being claimed. To properly identify 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 to establish the right. At this stage, Courts are to determine what an Applicant will have to demonstrate to be an aboriginal right in order for the activities they were engaged in to be encompassed in s. 35(1). Expressed otherwise, at this stage of the analysis, the Court’s inquiry is tailored to the actual activity undertaken by the Applicant.

[63]      The Court must then determine whether the practice, custom or tradition claimed to be an aboriginal right was prior contact with Europeans which is an integral part of the distinctive Aboriginal society of the particular Aboriginal people in question. Expressed otherwise, was the practice at issue prior to contact, a defining feature of the distinctive culture of that Aboriginal group?

[64]      The relevant time period to which the Courts must look in identifying Aboriginal rights is “the period prior to contact between Aboriginal and European societies”. The doctrine of Aboriginal rights exists, and is recognized and affirmed by s. 35(1), because when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. The goal for the Courts is to determine how the claimed right relates to pre-contact culture or way of life of an aboriginal society.

[65]      Evidence as to the relevant pre-contact practice is critical to the success of such an Application. R. v. Sappier; R. v. Gray, the Supreme Court of Canada identified the importance of such evidence with the following passage:

[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 existed and 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-contact practice custom or tradition, and the modern claimed right is integral to the success of a given claim.

[67]      Courts have identified various guiding principles to be applied. These principles are summarized as follows:

[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 factors as:

[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 a practice, custom or tradition. An Aboriginal right must be an activity undertaken by the Aboriginal group. An Aboriginal right, pursuant to 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 to a common law property right. The Supreme Court of Canada has rejected the application of traditional common law property concepts to special category of rights.

[70]      The Applicant has framed his Application as pertaining to a right to a resource, namely clean drinking water.

[71]      In Sappier and Gray, the Court considered an Aboriginal rights claim centered on the importance of a resource, that being timber. 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 the necessary “Aboriginal” component in Aboriginal rights”. The timber itself cannot form the basis of an Aboriginal rights claim, bur rather the analysis is to be focused on the manner in which timber was used by the community in issue, and why those particular practices are important (integral) to the distinctive culture of the collective (community).

[72]      The Applicant has failed to identify a specific practice upon which he is founding his claim, either in his written materials or in any oral submissions. The Applicant makes only a singular generalized statement that the “process of harvesting clean water for domestic and survival use includes the right to take such steps as are reasonably necessary to protect the source of the clean drinking water”.

[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 without a basis. A generalized comment such as “to harvest clean water and protecting the source”, absent any detail or evidence is of little assistance. In Lax Kw’alaams Indian Band, the Supreme Court considered a trial judge’s role at this stage of the Van der Peet analysis stating:

[74]      Given the absence of evidence, it is difficult to ascertain how the Court can define the claim of the Applicant properly at the first stage of the Van der Peet test. Expressed otherwise, what is the pre-contact practice, tradition or custom that was integral to the distinctive culture of the pre-contact society practice? What is the connection between that pre-contact unknown practice and the claimed 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 ability to sell fish in the modern context. In this case, the nexus is entirely unclear, particularly given that the activity that forms the subject matter of the charges faced by the Applicant (infilling) is unlikely to have existed in pre-contact world in any form. Nor has any evidence been adduced as to how infilling is related to clean drinking water. There are significant evidentiary gaps in the Application that are missing.

[76]      It is not for the Court to put together a report on what Aboriginal rights might be.

[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 do so means that the Application fails at the next stage of the Van der Peet test. There is no evidentiary record, that would allow this Court to determine whether the activity was an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group 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 of Quinte 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 Bay of Quinte.

[80]      The Court is left with an absence of evidence as to all of the following:

[81]      In Van der Peet, the Supreme Court dismissed the appeal, finding that the appellant failed to call the necessary evidence so as to demonstrate that the exchange of fish was an integral part of the distinctive society prior to contact. As a result of the appellant’s failure to establish the existence of the claimed right, the Court did not engage in any further analysis (as to a breach of that right).

[82]      In Lax Kw’alaams Indian Band, the Court dismissed the Band’s appeal as to Aboriginal right to harvest and sell fish on a commercial scale. The trial judge had not been persuaded that the Coast Tsimshian people’s pre-contact customs, practices and traditions supported such an Aboriginal right. To the limited extent that the Coast Tsimshian traded in fish and fish products, such trade was specific to a product derived from a single species, the eulachon. Trade in fish more generally was not integral to their distinctive society and thus did not provide a foundation for a s. 35(1) Aboriginal right to a modern wealth-generating “industrial” fishery. The trial judge concluded that transformation of the pre-contact eulachon grease trade into a modern commercial fishery would not be “evolution” but the 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.

[83]      In Mitchell v. Canada, 2001 SCC, the Court reversed findings made by the trial judge, emphasizing the importance of a proper evidentiary foundation. This concern is highlighted with the following passage from the decision:

[84]      In the present Application, much like the facts of Mitchell, the evidentiary record is extremely thin. The evidence provided by Mr. Seth Lefort and Chief R. Donald Maracle, while afforded equal and due treatment as an important perspective reflecting the community’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 the existence of an Aboriginal right.

[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 a claimed treaty right or Aboriginal right, the analysis must continue, in order to determine whether the Applicant has established a prima facie breach of that right.

[86]      In R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, the Supreme Court of Canada lays out the test for determining whether or not the impugned provisions have infringed the right at issue. The test is the same, whether the right has been identified as a treaty right, or an Aboriginal right.

[87]      When evaluating a potential infringement, the first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringement of s. 35(1). To determine whether a right has been interfered with so as to constitute a prima facie infringement of s. 35(1), three questions need to be asked:

[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 restriction unnecessarily infringes the interests protected by the right.

[89]      The onus of proving a prima facie infringement lies on the individual challenging the legislation.

[90]      If a prima facie breach of the right is established by the individual challenging the legislation, the onus then shifts to the Crown to justify that infringement. This is the second stage of the Sparrow test. Should the Court disagree with the Crown’s position as to the Applicant’s failure to demonstrate the existence of a right, additional time will be set aside for the parties to move into the next stage of the proceedings.

[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 evidentiary based  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 existing Aboriginal 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. The activity 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 the infilling 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 clean drinking 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 the provisions 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:

[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.

[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.

[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.

[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.

[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:

[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:

[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.”

[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.

[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.