The Supreme Court of Canada confirmed in this decision rendered on May 9, 2013, that failure to raise in a timely manner a breach of the duty to consult is opposable to its beneficiaries (Behn v. Moulton Contracting Ltd., 2013 SCC 26).

The Behn family, whose members are members of the Fort Nelson First Nation (FNFN), in British Columbia, hunted and trapped on a territory covered by both treaties and certain ancestral right claims.

In June 2006, after various exchanges with FNFN representatives, the Ministry of Forests granted permits to Moulton Contracting (“Moulton), a logging company, to harvest wood on some parcels of land located within the Behn family trapline.

The Behn family reacted in October 2006 by blocking the access road leading to the parcels of land to which the permits applied, thus preventing Moulton from exercising its harvesting rights.

Moulton then instituted damages proceedings against the Behn family.

When the Behn family raised in defence the invalidity of Moulton’s permits on the basis of a breach of the duty to consult the FNFN, Moulton asked the Court to strike out this allegation on the basis that neither the Behn family nor the FNFN had contested in due course the validity of the permits. Moulton was successful both in the first instance and in appeal.

The Supreme Court of Canada also concluded that the Behn family members were wrong in taking the law into their own hands by blocking access to the harvesting areas and that its members could not raise in defence the invalidity of Moulton’s permits as they had not attempted to contest the validity thereof in due time. The Court was of the view that such a tactic constituted an abuse of process which may bring the administration of justice into disrepute.

COMMENT

This very interesting decision deals with a procedural aspect, that is, the absence of capacity of the Behn family to raise the issue of collective rights benefiting the FNFN.

On the other hand, it is interesting to note that it is through the inherent power of the courts to prevent abuse of process that the allegation respecting the invalidity of Moulton’s permits was kept out of the debate.

Lastly, members of the First Nations will have to take note of the fact that they are not allowed to take the law into their own hands. They must seize the courts if they are of the view that the Crown’s duty to consult has been breached.