A new factsheet aims to clarify any misunderstandings around Aboriginal and Treaty Rights within the Security from Trespass and Protecting Food Safety Act, 2020 (SFTPFSA).
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“The factsheets were developed as part of the consultation process,” said Scott Duff, director of economic development policy with the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA).
“We heard from First Nation organizations some strong concerns over what they saw were the potential for conflicts with Aboriginal and Treaty Rights.”
Why it matters: The act is meant to limit access by activists and the curious to barns and other facilities where biosecurity is important.
OMAFRA held a webinar earlier this month to review the factsheet, which focuses on increasing understanding of the Act and exemptions around individuals lawfully exercising their Aboriginal and Treaty rights to ensure the safety of indigenous harvesters.
“In Ontario, we have more than 40 treaties and agreements that affect land resources and our nations,” said Duff.
The treaties entered into with the British and later the Canadian government have specific rights embedded within to protect First Nation rights to hunt, fish, and trap.
“(Required)” indicates required fields
This includes the new trespass act, which was fully proclaimed on Dec. 5, 2020, to protect farmers, the agri-food sector and livestock transport drivers from the impacts of trespassing and interference with animals.
“What that means is Indigenous people lawfully exercising Aboriginal or treaty rights may enter an animal protection zone without first obtaining prior consent of the owner on the farm,” explained Duff.
The Act does not cover areas of a farm where animals are never or rarely present, like crop fields and woodlots, where Aboriginal and Treaty Rights are more likely to be exercised.
For example, an Indigenous person could legally cross an animal protection zone – a farmer’s field where cattle may graze – to access a nearby area to hunt without arrest.
“It isn’t a new power created under the Act,” Duff said. “But it is an exemption that is allowed.”
Bethanee Jensen, Christian Farmers Federation of Ontario director and sheep producer, sought clarification when those actions became trespass.
“Do they have to have a reason to or prove they’re hunting, trapping and fishing to enter my barn, or is that trespassing for anybody?” Jensen asked.
Kristopher Crawford-Dickinson, OMAFRA legal counsel, suggested justifying entering private buildings would be difficult.
“Aboriginal rights have to be exercised in a manner compatible with the land use,” he said. “If you are near someone’s barn, you’re not going to be taking shots because that’s not compatible with the land use.”
Consent is required to enter animal enclosures, including barns and fully fenced pastures, (Type B) animal protection zones areas meeting the Minister’s regulation requirements and marked with signs by a landowner or occupier and areas where farm animals are displayed, such as auction yards, fall fairs, etc.
Type B areas require sign demarcation, but farming organizations have strongly encouraged implementing signage everywhere as a precaution. Farm and Food Care sells signs meeting the Act specification for five dollars, as do several agricultural associations, said Danie Glanc, Ontario Federation of Agriculture (OFA) farm policy analyst.
Police enforce the Act by issuing a warning, ticket, or a court summons. Unlike the Trespass to Property Act which caps fines at $10,000, the new trespass act relating to livestock has escalating penalties of up to $15,000 for a first offence and up to $25,000 for subsequent violations.
“The Act also allows the court to order restitution for injury, loss or damage suffered as a result of the fence of the offence,” said Duff. This includes livestock loss caused by stress and disease due to failure of adherence to safety protocols and trespass resulting in potential contamination.
Police knowledge lacking
To his knowledge, Duff said there are no convictions under the Act, nor could he comment on any enforcement actions undertaken by police as part of the Act. However, he suggested individual law enforcement agencies would have that information.
Shelagh Finn, a sheep producer in the Nottawasaga OPP coverage area, described a lack of response or priority for animal harassment on her farm.
“The snowmobiles chase the sheep in the pasture, causing harassment,” she said. “I get zero response, or maybe a week or two weeks later, somebody from the detachment may drop by to say trespassing is minor on our list of things.”
Finn installed cameras but said they were pulled down and removed by someone and are too expensive to purchase and replace.
She asked Duff how to improve OPP’s response to trespassing and harassment of her livestock.
The OPP sent an all-chiefs memo to law enforcement agencies, including Indigenous forces, explaining the Act and its powers when it came into power in December 2020.
However, Glanc said the OFA’s outreach to municipalities and OPP uncovered a general lack of knowledge about the Act.
“Whether it’s (not knowing) the details and the information contained therein or . . . they’ve never heard of it,” said Glanc. “(The) all-chiefs memo does go out, and from our discussions, it’s up to the individual departments to relay that information to their officers and down the chain of command.”
Glanc inquired if OMAFRA had a formal information or education plan to provide to police on the Act because “it feels like it’s one of these things they don’t know about using until it’s too late.”
OMAFRA developed a training module for the Ontario Police College for new and veteran officers’ ongoing training programs, encompassing regulations within the Act, said Duff.
