On May 9, 2013, the Supreme Court of Canada issued its decision in Behn v Moulton Contracting Ltd., 2013 SCC 26. Moulton brought an action against several members of the Aboriginal Fort Nelson First Nation (“FNFN”) after said individuals had erected a camp blocking the company’s access to its logging sites. Moulton had received authorization from the Ministry to harvest timber on the FNFN lands. Throughout the licensing process, the Behn family headman had not responded to any of the consultation efforts, and first challenged the Government’s authorizations only after issuance. Neither the FNFN nor the defendant individuals raised concerns with Moulton when the licences were originally granted.

The defendant individuals tried to assert a defence on the basis of breach of treaty rights and breach of duty to consult. The Court held that the duty to consult was owed to the collective, and could only be raised by individuals if said individuals are authorized to represent the collective. As there was no evidence in the pleadings that the FNFN had authorized the Behns to represent the First Nation to contest the legality of the timber sale licences and road access permit. The defendant individuals also asserted a breach of treaty rights to hunt and trap. The Court acknowledged that treaty rights could possibly be collective or individual, but declined to make a final decision on the matter by determining the case on abuse of process.

The Court dismissed the appeal as an abuse of process, as the individuals had failed to raise their concerns with Moulton, setting up a camp blocking Moulton’s access only after the company had incurred substantial costs. According to the Supreme Court, “[t]o 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 [para 42].”