Ahousaht Indian Band and Nation v. Canada (Attorney General), 2013 BCCA 30, Supreme Court of Canada (Leave Application) (McLachlin, Cromwell, and Wagner) 30 January 2014
Decision available here.
The Court summarized this leave application as follows:
Aboriginal law — Constitutional law — Aboriginal rights — Fishing — Commercial fishing right — Continuity of practice — Whether a Court can declare a constitutionally protected Aboriginal right without first determining whether claimed modern right has reasonable degree of continuity with pre contact practice relied upon to support that right — Whether the Court of Appeal erred in its delineation of the scope of the aboriginal commercial fishing right — Whether the Court of Appeal erred in permitting pre-contact practices of giftgiving, tribute and feasting to support a modern Aboriginal right to sell fish in commercial marketplace — Constitution Act, 1982, s. 35
The respondents are five B.C. Aboriginal bands who claimed an Aboriginal right to fish on a commercial basis. They claimed that their ancestors fished and traded fish and that these practices were integral aspects of their culture, that the practices have continuity with modern activities, translating them into a modern commercial fishing right, and that Canada’s fisheries regime unjustifiably infringes this right.
The applicant Attorney General of Canada (“Canada”) opposed these claims on the basis that no Aboriginal right to harvest any fisheries resources or to sell any species on any commercial basis exists. Canada further argued that there had been no infringement of any rights.
Both the trial and appeal courts granted the respondents an aboriginal right to fish on a commercial basis. In 2012, this Court remanded this case to the British Columbia Court of Appeal to be reconsidered in accordance with Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56,  3 S.C.R. 535. The Court of Appeal upheld its earlier decision. Canada seeks leave to appeal anew.
Decision available here.
FACTS Moulton Contracting Ltd. v. British Columbia, 2013 BCSC 2348, BC Supreme Court, (Saunders J), 23 December 2013 The British Columbia Supreme Court found the Province of British Columbia (the “Province”) liable for $1.75 million in damages to a small logging firm for failure to disclose to the firm that a member of a First Nation was dissatisfied with the consultation that the Province had conducted. Moulton Contracting Ltd. (“Moulton”) was a small logging company operating in north eastern British Columbia. On 27 June 2006, it entered into two Timber Sale Licences (“TSLs”) with the Ministry of Forests (“MoF”) to harvest timber in certain cut blocks (the “Cut Blocks”) near Fort Nelson, British Columbia. MoF had issued the TSLs pursuant to a 2004 amendment to its Forest Development Plan for the region (the “Amendment”). MoF officials had consulted with the Fort Nelson First Nation (“FNFN”) concerning the Amendment, and had reported that tentative agreement had been reached concerning the FNFN’s concerns. The Amendment was subsequently approved, although the FNFN was not informed of the approval for some time. The FNFN had been unhappy with the Province’s consultation efforts in relation to forestry for some time. Prior to the Amendment, the Treaty 8 First Nations, of which FNFN was one, had put forward a written policy covering all aspects of consultation for treaty and Aboriginal rights. This policy was reviewed, but not endorsed or adopted by MoF. To express dissatisfaction with MoF’s consultation practices, members of the FNFN had issued a unilateral moratorium on logging in their traditional lands. With respect to the Amendment, the FNFN had expressed dissatisfaction with MoF’s consultation on a number of grounds. The Band stated that it had insufficient technical capacity to evaluate MoF’s proposals; and that the Province was not providing capacity funding to allow them to acquire that expertise and deal with the large volume of consultations they were required to engage in. The FNFN also complained about unreasonably short and inflexible deadlines, and insufficient attempts to understand its concerns. The FNFN requested MoF to delay the Amendment and stop timber harvesting until cultural and habitat impacts were assessed. MoF informed the FNFN that until site-specific impacts were identified, harvesting would proceed. The MoF and the FNFN also disagreed on whether there was a requirement to consult about individual TSLs in addition to the Amendment.3 Attempting to respond to some of the FNFN’s concerns, MoF arranged a helicopter tour of the proposed logging areas by trapper members of the First Nation, and agreed to provide Archaeological Impact Assessments (“AIAs”) for two areas related to the Amendment. It did not agree to a habitat impact assessment, because such assessments were the responsibility of the Ministry of Water, Land and Air Protection, which was no longer responding to MoF’s Forest Development Plan referrals. Despite written confirmation that the AIAs would be conducted, MoF approved the Amendment prior to completion of the AIAs and without documenting all of the FNFN’s concerns in the consultation record. However, the FNFN did not attempt to challenge either the Amendment or the TSLs in the Courts. The day following the granting of the TSLs to Moulton, the MoF wrote to George Behn, a member of the FNFN who held a licenced trapline in the area including the Cut Blocks, to inform him that logging would soon commence, and advising him to contact Moulton directly in order to avoid any damage that might otherwise be done to his traps and caches. Behn did not respond directly, but the FNFN wrote to MoF on 6 July 2006 with a letter asserting that consultation had been insufficient. On 17 July 2006, Jason Smith, a staff member of British Columbia Timber Sales (“BCTS”), the branch of the MoF responsible for issuing TSLs, again wrote to Behn, reminding him that he should contact Moulton before logging commenced on or about 1 August of that year. This letter, for the first time, attached maps showing the Cut Blocks’ boundaries, but did not provide details about other previous forestry activity, the trap lines, culturally significant sites or hunting or trapping activities. Behn did not contact Moulton, but on 31 July telephoned Smith, to say that he was opposed to the logging and threatened to go “out to stop it”, without specifying what measures he might take to that end. Smith understood this statement to mean that Behn would seek an injunction or start an information campaign to stop the logging. He ascertained that Behn had been one of the trappers that had participated in the helicopter tour during the consultations on the Amendment, and entered into a dialogue with him concerning how the consultation might have been improved. Behn suggested that there should be direct personal consultation using maps and air photos at the development phase, on site and on the ground visits, and that copies of the archaeological assessments should have been provided to him. Smith agreed to do all of these, but did not agree with the trapper’s suggestion that there should be a moratorium on all timber harvesting within 100 miles in all directions from Fort Nelson. The MoF then entered into further discussions with Behn and the FNFN. On the same day as Behn’s phone call, Laura Montour, an FNFN official, also telephoned Smith to complain again about the MoF’s failure to provide capacity funding for consultations. She followed up with a letter that suggested that the Province needed to either bring its consultation policies into line with legal requirements, or “they can rationalize non-consultation all they want, and bear the consequences which cost more in the long run”. On 31 August Behn wrote to the Regional Executive Director of MoF, copied to Smith, about “Cancelling BC Timber Sales A66572 and A66573”. In the letter Behn demanded that before any logging took place complete and detailed assessments needed to be conducted on the cumulative impacts of all previous industrial activities and the impacts of the TSLs. He warned that unless and until these assessments were completed, his family was in a position to obtain an injunction against any logging in order to prevent infringement of their Aboriginal and Treaty rights.4 ABORIGINAL NEWSLETTER | 3 FEBRUARY 2014 The MoF did not inform Moulton of any of these communications with Behn and the FNFN, even though there were exchanges of correspondence and two face-to-face meetings between Smith and Moulton during this period. Moulton moved its equipment on to the Cut Blocks commencing on 19 September 2006 and commenced timber harvesting on 22 September. On 28 September Smith and other officials of the MoF met with Behn and Montour in the FNFN offices. At the meeting, Behn announced that he was going to blockade the logging of the Cut Blocks. Smith talked him into another meeting on site two days later. On 29 September, Smith advised Moulton that there was a potential problem with a trapper, and requested that logging be suspended until 1 October. Moulton agreed. On 30 September, Smith met with Behn and Montour on one of the Cut Blocks. Behn identified the location of his traps, two trails, and a sacred rock that had previously been moved, possibly by earlier road builders. Smith offered to implement mitigation requirements, including a buffer zone around a trail, and the cancellation of another TSL that had not been awarded to Moulton. Behn said he would accept nothing less than the immediate cancellation of Moulton’s TSLs and the complete cessation of all activities pending an Environmental Impact Assessment. By 2 October 2006 the Behn family (the “Behns) had erected a roadblock on the Canfor Road, which provided the only access route to the Cut Blocks. The blockade was peaceful and Moulton did not cross it except to retrieve its equipment and the logs it had harvested before 29 September, both of which the Behns consented to on the condition that no further harvesting would take place. Moulton’s resources had been entirely committed to the TSLs. It was forced to default on its contract to sell the timber from the Cut Blocks to Canfor, and was unable to find alternative forestry contracts. Its logging equipment was either re-possessed or sold in an attempt to meet its obligations. The MoF ultimately returned the deposit Moulton had paid on one of the TSLs where it had not done any harvesting, and waived any penalties that might have been assessed against the company for failing to fulfil its obligations under the TSLs. On 23 November 2006, Moulton brought suit against Behn and the FNFN for: • intentional interference with Moulton’s contractual rights and business interests, • wilful obstruction, interruption or interference with Moulton’s lawful use of the Canfor Road such as to constitute criminal mischief, and • conspiracy with intent to commit mischief and intentional interference with economic relations. In the same action it sued the Province for: • breach of contractforfailing to provide access to the TSLs, • breach of contract for failing to consult with the FNFN in respect of the grant of the TSLs, and • negligent continuing misrepresentation that access would be granted to the Cut Blocks, and that consultation with Aboriginal groups had taken place.5 The Crown denied that it had contracted to provide access to the Cut Blocks, or that it had failed to consult with the FNFN.It also alleged that Moulton was contributorily negligent and had failed to mitigate its damages because it had not sought an injunction against the blockade. Behn denied the claim against him, and asserted in defence that the TSLs were invalid because they breached his Treaty rights and had been issued without proper consultation. Moulton successfully moved to strike the Crown’s defences of failure to mitigate and contributory negligence (Moulton Contracting v. The Queen, 2009 BCSC 913). It also moved to strike Behn’s defences of breach of Treaty rights and failure to consult as an abuse of process, because they were a collateral attack upon authorizations that could have been challenged by way of judicial review. It was also successful on that application (Moulton Contracting Ltd. V. British Columbia, 2010 BCSC 506, aff’d 2011 BCCA 311; aff’d 2013 SCC 26). THE COURT’S FINDINGS: THE BEHNS Moulton’s claims of intentional interference with economic relations and unlawful conspiracy were founded on two types of unlawful acts: (1) criminal mischief under s. 430 of the Criminal Code, R.S.C. 1985, c. C-46; or (2) an unlawful act in creating and maintaining a blockade across a forestry road. Mr. Justice Saunders found that the Behns had not committed criminal mischief because s. 430 of the Criminal Code requires damage, interference with the lawful use, enjoyment or operation of corporeal property. The TSLs and an associated road permit did not give Moulton a right to exclusive possession of land, and therefore interference with the rights conferred by those instruments could not constitute mischief:  I find that the blockade’s obstruction, interruption or interference with whatever rights the plaintiff had under the TSLs to use or to enjoy the use of the Cutting Authority Areas and the Canfor Road were in respect of incorporeal property rights only, and did not give rise to the offence of mischief. In this sense, the blockade was not unlawful. The Court also rejected a last minute argument that the blockade involved interference with Moulton’s use of its equipment which was clearly corporeal property. Saunders J. held that such an argument would have required an amendment to the pleadings and he declined to exercise his discretion to grant leave for such an amendment during final argument. He also observed that in any event the actions of the Behns in relation to the equipment were too indirect to constitute mischief, because there was no showing of any impeding of physical access to the equipment or direct obstruction of its physical use. With respect to the claim of an unlawful blockade, the Court found that the Behns had positioned their roadblock on a portion of the Canfor Road where Moulton’s use was not “implicitly guaranteed or even permitted through the TSLs or RP (road permit)” (para. 213). The Canfor Road was not a public highway or a forest service road. Instead it was a road to which s. 22.1 of the Forest and Range Practices Act, SBC, 2002, c. 69 applied. Under that section Moulton was required to give Canfor five 6 ABORIGINAL NEWSLETTER | 3 FEBRUARY 2014 clear days notice of its intention to begin using the road. Moulton did not give such notice: … throughout the entire period of time when access was being blockaded – at least up until early January 2007, when Mr. Moulton reached an agreement with Mr. Behn allowing for the removal of harvested timber – Moulton Contracting’s use of the Canfor Road was contrary to the provisions of the Forest and Range Practices Act. The Court considered whether this lack of compliance was a mere irregularity. However, based upon a review of related statutory provisions it concluded that: …Moulton Contracting’s violation of the notice requirement makes the use of the Canfor Road by Moulton Contracting in 2006 unlawful. With respect to the lawfulness of the Behns use of the Canfor Road as a site for a camp and a roadblock, Mr. Justice Saunders came to a different conclusion. He found that while the Forest and Range Practices Act regulated the use of such roads for forestry purposes, it did not regulate other uses: … the rule is, “that which is not expressly forbidden is permitted”. No use by the blockade participants of the Crown land on which the road is situated that was expressly forbidden by law has been proven as pleaded. With respect to the claim of tortious civil conspiracy, Mr. Justice Saunders pointed out that while such a claim was maintainable in circumstances where the defendants did not use unlawful means, the law required that the predominant purpose of the defendants in employing those means had to be to cause injury to the Plaintiffs. He concluded: … On the evidence, the predominant purpose of the blockade participants was to protest the lack of consultation, and the infringement of aboriginal rights. Although economic harm to Moulton Contracting would foreseeably result, I find such harm was not the participants’ predominant purpose. Mr. Justice Saunders conceded that if he was wrong on the question of liability for erecting the blockade, he would have found George Behn and three of his children liable, but not other family members or other persons who had merely been present at the blockade for short intervals, including Chief Logan of the FNFN. THE COURT’S FINDINGS: THE FNFN The role of the FNFN in the blockade was a contentious issue. Behn met with the FNFN Band Council on the day that the Canfor Road was blockaded, and there was evidence that the FNFN had endorsed Behn’s actions. Chief Logan visited the blockade site on 3 October, and Montour was subsequently observed with the blockaders on at least one occasion. Montour also authored e-mails which suggested that she had the Band Council’s approval to assist the Behns in stopping logging. 7 The FNFN attempted to withhold clearly relevant evidence concerning its actions and position in relation to the blockade, and the Court found “a pattern of evasion, approaching deception” involving, among other things an “untruthful assertion” and an “improper and unsustainable claim of privilege”. Mr. Justice Saunders expressly doubted Chief Logan’s evidence on several key points, noting a number of unexplained contradictions between it and contemporaneously made written records. Nevertheless, Mr. Justice Saunders concluded that the FNFN had not gone beyond expressing moral support for the Behns’ actions, stopping short of actual participation in the blockade. He based his conclusion on the Chief’s brief aide-memoire to obtain legal advice on the question, and Behn’s evidence that he did not request the Band Council’s support. Accordingly, the Court found that even if it had been wrong in determining that no tort liability had arisen from the blockade, the FNFN would not share in that liability. THE COURT’S FINDINGS: THE CROWN Moulton claimed that the Crown was in breach of contract for failing to provide access to the TSL lands and for continuing negligent representations that access would be granted to the TSL lands (the “Access Promise”) and was also in breach of an express or implied term of the TSLs that the Crown had sufficiently consulted with all relevant Aboriginal groups (the “Consultation Promise”). With respect to the alleged Access Promise, Justice Saunders found: 275] In my view, these particular clauses, and the TSLs and the [Road Permit] as a whole, did nothing more than permit or authorize access to the Cutting Authority Areas for the purpose of timber harvesting, and permit or authorize construction of a road within the Cutting Authority Area of one of the TSLs, for that purpose. There is no ambiguity in the documents. The TSLs were a license, permitting entry onto the property for a specific use. There is nothing like a guarantee or a promise that access could be achieved, and nothing like an undertaking to assist the plaintiff in achieving access. To the contrary, the wording of clause 9.01 of the TSLs, the TSL Aboriginal Right Clause – under which the Province reserved the right to suspend a TSL in the event of, among other things, an interim or final injunction being granted on account of infringement of aboriginal rights – and clause 14.01, the TSL Blockade Exemption – under which the Province clearly exempted itself from liability for losses arising out of interference with the licensee’s operations by road blocks or other means – are, I find, completely inconsistent with any notion of access being guaranteed. On the issue of the Consultation Promise, the Crown did not dispute that it had a duty to consult the FNFN, 1 but argued that the duty had been at the lower end of the spectrum and had been fulfilled. Mr. Justice Saunders disagreed:  On the totality of the evidence, I cannot find that the Province consulted with 1 At paragraph 292 the Court might be interpreted as suggesting that the Crown did not take issue with Moulton’s contention that a representation that it had fulfilled its consultation duties to FNFN was an implied term of the TSL contracts. We understand the Court to be saying that although the Crown did not agree that there was any implied term in the TSLs relating to consultation, it did not stress that point, but concentrated on its position that it had fulfiled any consultation duty that it might have owed to the FNFN.8 ABORIGINAL NEWSLETTER | 3 FEBRUARY 2014 FNFN in a manner sufficient to maintain the honour of the Crown. The FNFN Lands Department operated with substantially limited capacity. To the knowledge of BCTS and MOF, it had no real ability to undertake meaningful evaluation of forestry proposals. That is not to say, by any means, that the Province was under an obligation to provide funding for improved capacity. But, knowing of the limitations facing the Lands Department, BCTS could have done much more than it did. It could have provided the Lands Department with longer time lines to respond to its inquiries, and could have set deadlines and held meetings outside the peak season for oil and gas approvals. It could have explored with FNFN the availability of other Crown resources. It could have arranged an intensive, on-the-ground review of the cutblocks with Mr. Behn.  BCTS could also have refrained from seeking approval of the FDP Amendment, or proceeding with the TSL sales, until habitat information was available to both parties. The Lands Department advised BCTS in November 2004 that wildlife habitat was a potential concern. The proposed clear cutting of 240 hectares of forest must have been anticipated to have a substantial effect on wildlife within those 240 hectares; the potential for wildlife to be impacted in surrounding areas, beyond the boundaries of the TSLs, must have been recognized as well. BCTS’ reaction was to explain that habitat was the responsibility of a different Ministry, one which was not responsive to BCTS’ own requests. While BCTS’ position was understandable, this did nothing to discharge the consultation obligation, which was owed by the Province as a whole. The failure of the Province to provide any information regarding wildlife habitat was a clear breach of its consultation obligation.  Furthermore, the whole process by which the FDP Amendment was approved was fundamentally flawed. The deficiencies in the information provided by BCTS to the MOF District Manager concerning the nature and status of consultation with FNFN are fully described above. To borrow a phrase from the trial judge in Mikisew, the approval process should have embodied “a transparent consideration” of FNFN’s concerns. It did not do so. The Court agreed that the Province’s duty with respect to the Amendment was at the lower end of the spectrum, but held that it went beyond mere notice. It included engaging directly with the FNFN to provide information about the Amendment that addressed what the Province knew to be the Band’s interests and the anticipated adverse impacts of the Amendment on those interests. The Province should have given the FNFN adequate time to respond and then have taken steps to minimize impacts on Aboriginal rights. This duty was enhanced by the Province’s knowledge that the Band lacked the capacity to fully consider the impact of the Amendment. It should have postponed the sale of TSLs until proper consultation could be completed.9 The Court moreover agreed with Moulton that the TSLs contained an implied term that the Province warranted that it had fulfilled its consultation duty to the FNFN, and appeared to go further: 291] I find that in order to give business efficacy to the TSLs, the following terms must be implied therein: a) That the Province had engaged in all necessary consultation with affected First Nations, and had discharged its duty to consult; b) That the Province was not aware of any First Nations expressing dissatisfaction with the consultation undertaken by the Province, save as the Province had disclosed to Moulton Contracting. Saunders J. found that that the Province was in breach of the first of these two implied terms, but that no liability flowed from that breach for two reasons. He was not persuaded that there was “a sufficient causal connection between the lack of the necessary level consultation, and Mr. Behn’s decision to proceed with a blockade”. The judge thought it possible that Behn would have erected his blockade even if there had been proper consultation, because he was opposed to any logging on his family territory. Furthermore, he found that recovery for failure to adequately consult was barred by a provision (the “Blockade Exemption”) in the TSL agreements that stated: 14.01 The government is not liable to the Licensee for injuries, losses, expenses, or costs incurred or suffered by the Licensee as a result, directly or indirectly, of an act or omission of a person who is not a party to this Licence, including but not restricted to an act or omission of a person disrupting, stopping or otherwise interfering with the Licensee’s operations under this Licence by road blocks or other means. Mr. Justice Saunders stated: I find no ambiguity in the language of the TSL Blockade Exemption. The words used are wide enough, in their ordinary meaning, to cover fault on the part of the Province. But, with respect to the second implied term he found: 302] I do, however, find liability on the part of the Province for breach of an implied term of the TSLs that the Province was not aware of any First Nations expressing dissatisfaction with the consultation undertaken by the Province. As I have found, BCTS knew or ought to have known, as of July 31, 2006, that Mr. Behn was threatening to block physical access. At no time over the month that followed did Mr. Behn resile from his threat. BCTS kept the plaintiff in the dark, and did so at a critical point in time, when the plaintiff 10 ABORIGINAL NEWSLETTER | 3 FEBRUARY 2014 would have to be making definite plans – for example, as to whether to attend the Canfor Contractors’ Meeting – for the coming season. I find that the Province was obliged, as a matter of contract, to advise Moulton Contracting of Mr. Behn’s threat, in a timely manner, and that it failed to do so. This finding may also be made on the basis of concurrent liability in negligence based on an implied continuing representation, which the Province learned to be false. Clearly, a duty of care was owed by the Province to Moulton Contracting, arising out of their contractual relationship, to pass on information of fundamental relevance to its ability to avail itself of its rights under the licenses. He further found that had Moulton been advised of Behn’s threat, it would not have committed itself to logging the TSLs, but would have pursued other contract work, and that the Province was liable to Moulton for the loss of those other work opportunities. Although no evidence had been led on the value of lost opportunities, the Court concluded that it could assess them by reviewing the revenues and expenses of Moulton for the three years prior to the blockade. On that basis the Court concluded that the Province’s failure to warn of the impending blockade had cost Moulton losses of $1,750,000 and assessed damages in that amount, plus court order interest from 30 June 2007. COSTS The parties were given liberty to make submissions on costs. APPEALS The Crown and Moulton have both filed notices of appeal. Decision available here.