In recent years, proponents in the natural resource industry have become more comfortable with fulfilling the duty to consult with Aboriginal communities and Aboriginal and treaty rights. However, one of the issues that continues to create uncertainty is whether treaty rights reside with First Nation members individually or collectively, and, if collectively, whether individuals can assert that these rights have been infringed without authorization of the collective. In the recent decision of Behn v Moultan Contracting Ltd, the Supreme Court of Canada appears to have further muddied the waters.

Background

In October 2006, members of the Behn family, a community of the Fort Nelson First Nation (FNFN), camped along a lumber road in northern British Columbia to prevent Moulin Contracting Ltd. (Moulin) from harvesting wood on FNFN territory. Moulin had been granted licenses by the British Columbia Ministry of Forestry (MOF) earlier that year to carry out wood harvesting operations on tracts of land on FNFN territory. These licenses were only granted once the MOF had invited members of the FNFN, which is a party to Treaty No. 8 of 1899, to comment on the proposed forest development plan. The plan was adjusted in response to several of the FNFN’s concerns.

Before Moulin had begun operations, the head of the Behn family advised the MOF that he opposed the licenses and requested further consultation. Note that the FNFN allocated a part of the territory subject to the licenses to the Behn family to manage. Moulin was not notified of the Behn’s opposition until operations were underway and refused to postpone operations citing commitments to deliver lumber from that site. To prevent Moulin from accessing the licensed land, the Behns obstructed the access road by erecting a camp.

In defence to an action brought by Moulin for interfering with contractual relations, the Behns argued that their actions were lawful. The licenses, they claimed, were invalid on two bases: first, in granting the authorizations, the Crown was in breach of their duty to consult and, second, that they violated the Behn’s hunting and fishing rights. The matter at issue was whether the Behns, in their individual capacity and not as representative of the FNFN, had standing to assert either of these defence or, conversely, whether these defences constituted an abuse of process.

The Supreme Court’s Decision

Justice Lebel, writing for a unanimous court, upheld both the British Columbia Superior Court and Appeal Court’s decisions to strike the Behan’s defences on the ground that they constituted an abuse of process.

The Court held that the licenses’ constitutionality should have been challenged when granted and through the proper formal legal channels, such as judicial review. No attempt was made to legally challenge the Crown grants, and Moulin was led to believe that it was free to commence operations. Moreover, Justice Lebel remarked that permitting the assertion of treaty rights and breach of duty to consult as a defence would amount to condoning self-help remedies, which would bring the administration of justice into disrepute.

While the appeal was disposed of on that basis, Justice Lebel went onto discuss the nature of Aboriginal and treaty rights. He definitively affirmed that the duty to consult is owed to a First Nation’s band collectively. Because of its collective nature, an alleged breach of the duty to consult may be asserted by an individual or organization only where they are authorized to represent the interests of the band as a whole.

However, Justice Lebel was much more equivocal in respect of whether Aboriginal and treaty rights can be asserted by persons or groups in their individual capacity and not as agents of a band. Although prefacing with the caveat that “a definite pronouncement in this regard cannot be made in the circumstance”, he rejected approaching Aboriginal and treaty rights, in a binary, categorized manner (i.e. as either individual or collective). Instead, he remarked, Aboriginal and treaty rights, “have both collective and individual aspects…[and] may sometimes be assigned to or exercised by individual members of Aboriginal communities…in a broad sense, it could be said that these rights might belong to them or that they have an individual aspect regardless of their collective nature”.

Therefore, it appears that individuals or communities within a band may have standing apart from the band collectively to assert breaches of Aboriginal and treaty rights. This arises where an individual or community has a greater interest than other members of the band in protecting specific rights in relation to a particular territory.

Impact of the Decision

In some respects, the Court’s decision is helpful in clarifying some key principles; namely:

  • Aboriginals cannot exercise self-held remedies against apparent treaty right infringements or failures to discharge the duty to consult. The appropriate means of resolving a dispute is through formal legal channels.
  • The duty to consult is enjoyed by aboriginals collectively and alleged breaches may be asserted only by the band collectively or by an individual or organization that is authorized to represent the collective interests of the band.
  • Individual members or groups within a First Nation may have standing apart from the band to assert aboriginal or treaty right breaches where they have a greater interest in protecting the infringed rights in respect of a particular territory. Exactly how the comparative strengths of interests between individual members and the band will be evaluated is uncertain, however.

However, the Court’s decision has also left a number of questions unanswered. How exactly individual communities relative interests in respect of a given right and particular territory are to be evaluated is unclear. For instance, it is uncertain whether collective rights will be individually enforceable only where rights have been assigned to individual members, such as where a band’s territory is managed by individual families, or if other factors such as proximity to a particular territory or traditional exercise of a particular right will suffice.

Also, it is unclear what entitlements are conferred on individual groups within a band, both relative to the band as a whole and outside actors, such as industry or the Crown. Might individual groups who have a greater interest in the rights at stake have greater say in the decision-making process? Will individual groups within a band have recourse to assert a deprivation of their treaty rights even where a particular Crown decision has been approved by the band? It will be interesting to observe how these outstanding issues are addressed.

From the perspective of Aboriginal groups, this decision seems to afford a certain amount of increased protection to minority interests within a band by presenting the opportunity for individuals or communities to protect constitutional rights to which they have a special or unique interest apart from the band to which they belong.