On May 9, 2013, the Supreme Court of Canada (SCC) released its latest decision concerning the duty of the Crown to consult with Aboriginal Peoples in connection with resource development in Behn v. Moulton Contracting Ltd. The SCC confirmed that aboriginal and treaty rights are communal rights which may only be raised by representatives of the community that holds the rights, not individuals acting without community authority. Further, aboriginal individuals are not entitled to assert aboriginal or treaty rights to justify a blockade or other interference with private parties' exercise of government-issued licences or other rights to develop natural resources. First Nations and other Aboriginal Peoples who wish to challenge regulatory permits must do so in court. This is consistent with the duty of mutual good faith inherent in Crown–aboriginal relations.

Legal Backdrop and Implications

Since the SCC's 2004 decision in the case of Haida Nation v. B.C., Canadian courts have consistently upheld and developed the duty of the federal and provincial Crown to consult with Aboriginal Peoples before making any decisions that may impact claimed or existing aboriginal or treaty rights. The Behn decision answers two questions regarding the duty to consult, which have been at issue in a number of other cases: who speaks for the nation; and how and when aboriginal and treaty rights can be raised.

The first question arises from the communal nature, but individual exercise, of aboriginal and treaty rights. These rights are uniquely protected by section 35 of the Constitution Act, 1982, and belong to "aboriginal peoples". However, in most cases individuals exercise the rights, for example, by going hunting, fishing, trapping or gathering. In those circumstances, there has been some question as to who should raise the rights. While it is no longer the case that only the chief of a First Nation can do so, the Behn decision makes clear that individuals who act without authority from the nation cannot raise aboriginal or treaty rights as a means to challenge regulatory rights granted to commercial parties. This will be a relief to proponents and the Crown who have been faced with requests for consultation from unauthorized individuals and groups within a nation.

The second question, concerning how and when aboriginal rights can be raised, arises because even after a Crown decision to permit resource development, individuals within an aboriginal community may express concerns. The Behn decision affirms that in such circumstances the individuals are not entitled to take "self-help" remedies to physically block the developer's exercise of its regulatory rights. Rather, if the nation wishes to contest the validity of the regulatory decision, it can follow the proper legal steps to do so, typically through judicial review. Unless and until a developer's regulatory permit is set aside by a court, the permit is valid and the developer is entitled to exercise the rights granted by the permit.

Facts and Analysis in the Behn case

The respondent Moulton Contracting Ltd. is a forestry company that obtained permits and licences from the B.C. Ministry of Forests to harvest timber in the territory of the Fort Nelson First Nation, within the Treaty 8 area of northeastern B.C. The First Nation did not contest the validity of the permits, either by commencing judicial review of the permits, or in the subsequent legal proceedings. The Behns, members of the nation who claim aboriginal and treaty rights within the area proposed for logging, erected a camp that effectively blocked the company's access to its logging sites. The company brought a legal action against the Behns. The Behns asserted their aboriginal and treaty rights in defence, arguing that Moulton's permits were invalid because the Ministry of Forests had failed to adequately consult them before issuing the permits. The company sought to strike the defence as improper, given that (a) the First Nation expressly did not authorize the individuals to assert the community's rights in this manner; and (b) no one had challenged the licences when they were issued, so the defence amounted to an improper collateral attack and an abuse of process.

The SCC confirmed that aboriginal and treaty rights are communal rights. The duty to consult is owed by the Crown to the community which holds the rights. Anyone asserting the rights, and claiming a right to be consulted, must have the community's authority to do so. In this case, the First Nation had not authorized the Behns to assert a breach of the community's rights. As such, they had no "standing" or right to do so.

While this decision is relatively clear, in other cases, the question of "who speaks for the nation" may not be so easily resolved. For example, some First Nations form tribal councils which may assert the right to be consulted. Some First Nations have parallel governance structures involving both elected and hereditary systems. Other First Nations devolve the right to be consulted to smaller family groups in connection with particular areas within the First Nation's broader claimed territory. In all such circumstances, third parties and the Crown will need to continue to be careful to ensure that they are dealing with the appropriate representatives of the Aboriginal Peoples that hold the rights.

The SCC also confirmed that it is inappropriate for aboriginal individuals or nations to physically prevent third parties from exercising rights granted by the Crown to develop natural resources. In this case, neither the Behns nor the First Nation had challenged Moulton's licences when they were issued. No one had sought judicial relief such as an injunction. The permits were therefore valid, and Moulton was entitled to rely on them. By blockading Moulton's access to its logging sites and then justifying their actions by contesting the validity of the permits, the Behns engaged in an impermissible collateral attack and an abuse of process. The proper time and method to challenge the licences was shortly after they were issued, through legal proceedings. By waiting until Moulton acted on its rights, the SCC held that the Behns did not fulfil Aboriginal Peoples' responsibility to act in good faith in their dealings with the Crown and third parties concerning aboriginal and treaty rights.

Conclusion

The Behn decision is another development in the evolving law concerning Aboriginal Peoples' rights to be consulted by the Crown concerning proposed resource development in aboriginal territory. The decision adds certainty in two areas. First, the government's duty – often delegated by the Crown to third parties – to consult Aboriginal Peoples does not require consultation of individuals and groups within those communities who have no communal authorization. While it is often prudent for proponents to broadly engage aboriginal communities that may be affected by a project, only those people who can demonstrate that they speak for the nation are required to be consulted. Second, once the government issues a licence or permit, the permit holder is entitled to act on it. The only proper means to contest the permit is via legal proceedings. The SCC has expressed that after the fact non-legal actions to prevent the permittee from exercising its rights are contrary to Aboriginal Peoples' obligation to act promptly and in good faith when asserting their constitutional rights.