The forestry company Moulton Contracting obtained licences from the British Columbia government to harvest timber on two tracts of land in the territory of the Fort Nelson First Nation (FNFN), which was a signatory of Treaty No. 8 in 1899. The Behn family, who are members of FNFN, erected a camp blocking Moulton’s access to the logging sites. The Behns alleged that, according to the FNFN system of territorial management, hunting and trapping rights are exercised on tracts of land that are associated with different extended families, each of which is headed by a headman. The forestry company filed a tort claim against the Behns. In their defence, the Behns alleged that the licences were invalid because they were awarded in breach of the duty to consult and infringed Treaty No. 8 rights.
The issues before the Supreme Court were:
- whether individual members of an Aboriginal community can invoke a breach of the Crown’s duty to consult;
- whether such individuals can invoke treaty rights; and
- whether the Behns committed an abuse of process by challenging the validity of the licences after Moulton had filed its statement of claim, although they had not taken any action when the licences were first issued.
The first two issues related to the Behns’ standing.
The Supreme Court1 decided that the duty to consult is an obligation owed to the Aboriginal community that holds the rights covered by s 35 of the Constitution Act, 1982, because those rights are inherently collective. However, such a community can authorize an individual or a body to represent it in order to challenge the validity of licences. In this case, the Court considered that the FNFN had not given any such authorization and therefore the Behns could not assert a breach of the duty to consult.
On the second issue, the Court explained that a definitive pronouncement as to whether the licences infringed the hunting and trapping rights set out in Treaty No. 8 was not possible in the circumstances of this case. However, it rejected the argument that applications based on treaty rights have to be made by the Aboriginal community or in its name, considering such an interpretation to be too narrow. The Court envisaged that although the community holds the rights, they might be exercised by individuals or assigned to them. Such rights thus have both collective and individual aspects. Moreover, the Court expressed its interest in the classification of various types of Aboriginal and treaty rights that was proposed by some of the interveners: a) rights that are exclusively collective; b) rights that are mixed and c) rights that are predominantly individual.
The Supreme Court refused to make a pronouncement on this issue, but while recollecting the crucial importance of the collective aspect of the rights protected by s 35 of the Constitution Act, 1982, it explained that such rights may sometimes be assigned to or exercised by individuals or created in their favour. The Court added that the connection asserted by the Behns between their hunting and trapping rights and a specific geographic location within the FNFN territory lends some support to the argument that the Behns had standing to claim a breach of their personal rights in defence to the claim in tort brought by Moulton. However, the Court believed that it was not necessary to rule on the matter of standing given that the issue of abuse of process was determinative.
On the third issue, the Court considered that the Behns committed an abuse of process in raising as a defence a breach of the duty to consult and an infringement of Treaty No. 8 rights. They should have raised this matter at the appropriate time by challenging the licences before the courts when they were granted by the province, either by applying for judicial review or an injunction. To make matters worse, the Behns did not inform Moulton of their concerns after the authorizations were issued and, without notice, erected a camp blocking Moulton’s access to the logging areas, thus leaving the company only two options: abandon their logging operations or turn to the courts. The Court added that if the Behns were allowed to assert a defence based on a breach of the duty to consult, that 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 duty to consult.
The Supreme Court of Canada has thus clearly ruled that the duty to consult exists to protect the collective rights of Aboriginal Peoples and that this duty is owed to the community that holds the rights. However, it also acknowledged that such rights have both collective and individual aspects, so that in certain circumstances, the members of a community may have standing to contest before the courts authorizations granted by the Crown that could jeopardize their rights.
Clearly, this raises many questions, including the possibility that members of a community could successfully challenge a development project even if their political leaders have declared their satisfaction with the consultation process established by the Crown. This decision of the Supreme Court opens the door to complex discussions about how the Crown and developers should handle the concerns of Aboriginal communities and those of individual members of such communities.