On May 9th 2013, the Supreme Court of Canada released its decision in Behn v Moulton Contracting Ltd, 2013 SCC 26. The decision provides important commentary on the Crown’s duty to consult Aboriginal people.
Moulton Contracting Ltd., a forestry company, was granted two timber sale licences and a road permit (the “Authorizations”) by the British Columbia Ministry of Forests. These Authorizations entitled Moulton to harvest timber on two parcels of land within the Fort Nelson First Nation’s territory, both of which are within the Behn family trapline. The Behns are individual members of the Fort Nelson First Nation. No legal challenge was brought challenging the validity of the Authorizations. However, when Moulton attempted to access one of the sites, the Behns erected a camp that, in effect, blocked the company’s access to the logging sites. Moulton commenced a court action. As a defence to that action, the Behns argued that the Authorizations were void because they were issued in breach of the Crown’s duty to consult and because they violated the Behns’ hunting and trapping rights under Treaty No. 8.
The decision addressed three issues:
- First, can the Behns, as individual members of an Aboriginal community, assert a breach of the duty to consult? This issue raises the question to whom the Crown owes a duty to consult.
- Second, can treaty rights be invoked by individual members of an Aboriginal community?
- Third, does it amount to an abuse of process for the Behns to challenge the validity of the Authorizations now that they are being sued by Moulton after having failed to take legal action when the Authorizations were first issued even though they objected to their validity at the time?
In addressing the first issue, the Court confirmed that the duty to consult exists to protect the collective rights of Aboriginal peoples and is owed to the Aboriginal group that holds them. While an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its Aboriginal or treaty rights, no such authorization was given in this case.
In addressing the second issue, the Court noted that certain Aboriginal and treaty rights may have both collective and individual aspects, and it may well be that in appropriate circumstances, individual members can assert them. However, the Court found it unnecessary (given its conclusion on the third issue) to make any definitive pronouncement in this regard in the circumstances of this case.
In addressing the third issue, the Court found that raising a breach of the duty to consult and of treaty rights as a defence was an abuse of process in the circumstances of this case. Neither the First Nation nor the community members had made any attempt to legally challenge the licences when the Crown granted them and, in such circumstances, to allow the Behns to argue a defence based on treaty rights and on a breach of the duty to consult would be tantamount to condoning self-help remedies, and would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown’s constitutional duty to consult First Nations.
Many project proponents (and Crown decision-makers) have struggled in attempting to discern “who speaks for the Nation” in a consultation process. Many observers had hoped that this decision would provide greater certainty regarding to whom the Crown owes a duty to consult. The Court’s conclusion that the duty “is owed to the Aboriginal group that holds the s. 35 rights, which are collective in nature” provides some clarification. However, there remains some legal uncertainty around identifying the Aboriginal group that holds s. 35 rights. Other cases are pending before the Supreme Court of Canada that may provide further clarity on that issue.
The decision more clearly underscores the need for Aboriginal communities to follow proper procedures when challenging project authorizations based on a breach of the duty to consult or an assertion of treaty rights. Here, although the Behns did object to the validity of the Authorizations, they did not initiate legal proceedings to challenge them—instead opting to erect a camp blocking access to the logging operations. This decision makes it clear that the Court will not condone such self-help remedies. This aspect of the decision should provide some comfort to the holder of an authorization (that is not subject to a legal challenge) that it should be entitled to rely on (and act on) that authorization.