Timothy Barnhart, having been found guilty of Fisheries Act offences, brought a constitutional application seeking a declaration that sections 35 and 40 of the Fisheries Act infringed his Aboriginal and treaty rights, specifically a right to clean drinking water and a right to modify his land without interference.
The Crown moved to dismiss this constitutional application.
The Ontario Court of Justice dismissed Barnhart's application, finding that he failed to provide sufficient evidentiary basis to establish the existence of the claimed treaty or Aboriginal rights under the Simcoe Deed (Treaty 3 ½) or to demonstrate a prima facie breach of such rights.
The court emphasized the need for cogent evidence regarding pre-contact practices for Aboriginal rights and common intention for treaty rights, and noted the conflict between the individual's actions and the community's interests.
