Last week, the Supreme Court of Canada released its decision in Behn v. Moulton Contracting Ltd., 2013 SCC 26. The case sets out some important principles that may be relevant for those who engage in operations in areas where Aboriginal or First Nations concerns could give rise to a risk of roadblocks or other obstructive activities.
In Behn, the B.C. Ministry of Forests (MOF) granted authorizations – two timber licenses and a road permit – to Moulton Contracting Ltd. The MOF consulted with the Fort Nelson First Nation (FNFN) and individual FNFN members whose traplines were affected by the authorizations, including George Behn. The MOF sent Mr. Behn several letters providing him with notice of the authorizations as well as notice of the timing of Moulton’s operations. Mr. Behn subsequently wrote the MOF demanding that the authorizations be cancelled and seeking consultation. Moulton then began moving its equipment to the area, and Mr. Behn and his family erected a roadblock shortly thereafter.
Moulton commenced an action against the Behns, the chief of the FNFN, the FNFN, and the Crown claiming damages for interference with contractual relations. The Behns denied that their conduct was unlawful on the basis that the Crown had failed to fulfill its duty to consult and that the authorizations infringed their treaty rights. Moulton applied to strike the Behns’ Statement of Defence as it related to the Crown’s alleged failure to consult and the violation of the Behns’ treaty rights. The B.C. Supreme Court granted the application, holding that the Behns lacked standing to raise the defences pertaining to the duty to consult and treaty rights. The court stated that such rights were collective in nature and could only be asserted by individuals if authorized by the collective, and the FNFN had not authorized the Behns to do so. The B.C. Court of Appeal upheld the decision.
The Supreme Court of Canada dismissed the appeal. Lebel J. agreed with the courts below. He held that the duty to consult existed to protect the collective rights of Aboriginal peoples, and that the pleadings did not disclose that the FNFN had authorized the Behns to contest the authorizations. However, the Court declined to address the issue of whether treaty rights were collective rights, noting that these rights may have both collective and individual aspects. Ultimately, Lebel J. held that the determinative issue on the appeal was that it was an abuse of process for the Behns to raise a breach of the duty to consult and infringement of treaty rights in defence, when neither they nor the FNFN had made any attempt to challenge the authorizations at the time they were granted by the MOF. The Court stated that if it allowed the Behns to raise those defences after Moulton had no choice but to either go to court or forgo its operations and incur substantial costs, it would be condoning “self-help remedies” and would bring the administration of justice into disrepute.
Going forward, the Behn decision may influence the analysis that the court will undertake in considering whether to grant relief prohibiting roadblock activities. The first branch of the three prong test for an injunction as set out in RJR MacDonald Inc. v. Canada,  1 S.C.R. 311 requires an assessment of the strength of the plaintiff's case. Behn may allow the court to factor in any other legal remedies available to the defendants prior to enacting the blockade when assessing the plaintiff's case in support of injunctive relief. That is, if other legal avenues were available to the defendants, then this would weigh in favour of the strength of the plaintiff's case in support of injunctive relief. In addition, if a blockade is enacted by individuals who raise a violation of the duty to consult in defence, this may also weigh in favour of the strength of the plaintiff's case in the absence of any evidence in the pleadings that the collective band authorized an allegation relating to a violation of the duty to consult.