On May 9, 2013, the Supreme Court of Canada released reasons in Behn v. Moulton Contracting Ltd., 2013 SCC 26, ruling that resorting to self-help remedies such as blockades is an abuse of process. The Court also found that the duty to consult is owed to Aboriginal groups, and can be asserted by individuals only with authorization from the collective.
In 2006, Moulton Contracting Ltd. (“Moulton”), a small logging company, was granted two Timber Sale Licences (“TSLs”) and a road permit within Treaty 8 territory from the Province. Moulton claims that when it attempted to mobilize its equipment to harvest the TSLs, its access to the area was blocked by the individual defendants (the “Behn Defendants”). The Behn Defendants are members of the Behn family and, with one exception, are also members of the Fort Nelson First Nation (“FNFN”), a signatory to Treaty 8.
As Moulton was unable to harvest the TSLs, Moulton began this action for damages for intentional interference with contractual relations and conspiracy against the Behn Defendants. Moulton also seeks damages from the FNFN, its Chief, and the Province. The Behn Defendants claimed they were not liable for preventing Moulton from harvesting because the Provincial Crown failed to consult them prior to granting the TSLs and road permit, and because the TSLs infringed their rights under Treaty 8. Therefore, the Behn Defendants say that, due to the lack of adequate consultation and the treaty infringement, the provincial authorizations were invalid.
Lower Court Decisions
Moulton applied to strike those portions of the Behn Defendants’ Statement of Defence alleging inadequate consultation and treaty rights infringement on the basis that the defences advanced were a collateral attack on the authorizations and should have been addressed through proper legal channels at the time they were granted such as judicial review. The Province supported Moulton’s application further submitting that consultation and treaty rights are collective rights, and the Behn Defendants did not have standing to raise them, particularly as the FNFN was a party to the action and did not itself raise these defences.
The BC Supreme Court (2010 BCSC 506) and BC Court of Appeal (2011 BCCA 311) agreed with Moulton and struck the defences, finding the validity of the authorizations should be challenged through proper legal avenues, as opposed to “self-help remedies”. Both the BC Supreme Court and Court of Appeal also found the Behn Defendants lacked standing to raise the treaty rights and consultation defences as those are collective rights and can only be advanced by a proper representative of the community. There was no evidence that the Behn Defendants were charged with the authority from the FNFN to raise these collective claims.
Supreme Court of Canada Decision
The Supreme Court of Canada agreed with the lower courts and dismissed the appeal. The Court concluded the Behn Defendants lacked standing to raise the defences and furthermore, allowing the defences to proceed would be an abuse of process.
The Court divided this issue into two questions: to whom does the Crown owe the duty to consult, and can treaty rights be invoked by individual members of an Aboriginal community?
The Court observed that the duty to consult exists to protect collective rights of Aboriginal peoples, and therefore is owed to the Aboriginal group holding the section 35 rights. However, an Aboriginal group can authorize an individual or organization to represent it for the purpose of asserting those rights. In this case, there was no allegation of authorization from the FNFN, a party to the action and an intervener before the Supreme Court of Canada.
The Court refused to answer the second question related to treaty rights. Certain rights, despite being held by an Aboriginal community, are exercised by individual members. They therefore have both collective and individual aspects, and it may be that, in appropriate circumstances, individual members can assert Aboriginal or treaty rights. The Court refused to delve into this issue further, given its decision on abuse of process.
Abuse of Process
The Court called this the key issue in this appeal and concluded that raising a breach of duty to consult and treaty rights as a defence in the tort claim was an abuse of process. Neither the FNFN or the Behn Defendants made any attempt to legally challenge the authorizations when the Crown granted them. Instead, the Behn Defendants, without warning, set up a camp and blocked Moulton’s access to its logging sites, putting Moulton in the position to forego harvesting timber or to go to court after already having incurred substantial costs to start its operations. The Court said:
 … To allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute. It 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. The doctrine of abuse of process applies, and the appellants cannot raise a breach of their treaty rights and of the duty to consult as a defence.