1. Introduction

On May 9, 2013, the Supreme Court of Canada rendered its judgement in Behn v. Moulton Contracting Limited, dismissing the appeal.

  1. Facts

The Government of British Columbia granted logging permits to Moulton, a logging company, in two areas within the territory of the Fort Nelson First Nation, a signatory of Treaty No. 8. Individual members of the First Nation, erected a camp that blocked the company’s access to the logging sites. The company brought an action in damages against the Behns. The individuals argued in their defence that the permits were illegal because they had been issued in breach of the constitutional duty to consult and because they violated their treaty rights. The company moved to strike these allegations of the individual members. The Crown supported the company, and argued further that the individuals lacked standing to raise a breach of the duty to consult or of treaty rights, as only the First Nation had such standing.

  1. Decisions below

The British Columbia Supreme Court and Court of Appeal held that the individuals, as members of the First Nation, lacked standing to raise the defences pertaining to the duty to consult and treaty rights. They stated that Aboriginal and treaty rights are collective in nature. These collective rights may be asserted by individuals only if authorized to do so by the collective. In the present case, the First Nation had not authorized the individuals to assert these rights. The Courts also found that the defence raised by the individuals constituted an “abuse of process”, as they should have challenged the validity of the permits earlier by way of judicial review.

  1. Issues

The Supreme Court of Canada addressed three main issues in this appeal:

  1. Can individual members of an Aboriginal community assert a breach of the duty to consult?
  2. Can treaty rights be invoked by individual members of an Aboriginal community?
  3. Did the defences raised by the Behns constitute an abuse of process because the Behns failed to take legal proceedings to challenge the permits when they were first issued, although they objected to their validity at the time?

4.1 Duty to consult

The Supreme Court, citing Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, held that the duty to consult exists to protect the collective rights of Aboriginal peoples set out in section 35 of the Constitution Act, 1982. For this reason, it is owed to the Aboriginal group that holds the section 35 rights, which are collective in nature. But an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its section 35 rights.

In this case, it did not appear from the pleadings that the First Nation had authorized the Behns to represent it for the purpose of contesting the validity of the permits. The Court held that, given the absence of an allegation of an authorization from the First Nation, in the circumstances of this case, the individuals could not assert a breach of the duty to consult on their own, as that duty was owed to the Aboriginal community.

4.2 Aboriginal or Treaty rights

The individuals also challenged the legality of the permits on the basis that they breached their rights to hunt and trap under Treaty No. 8. The Court chose not to decide definitively whether or not the individual members of the First Nation could assert these treaty rights.

The Court rejected as too narrow the Crown’s argument that claims in relation to treaty rights must be brought by, or on behalf of, the Aboriginal community. The Court affirmed the long-standing principle that Aboriginal and treaty rights are collective in nature. At the same time, the Court indicated that such rights have both collective and individual aspects. The Court declined to define broad categories of Aboriginal and treaty rights. However, it acknowledged that, despite the critical importance of the collective aspect of Aboriginal and treaty rights, these rights may sometimes be exercised by individual members and give rise to individual entitlements.

The Court noted that the individual members acknowledged that the treaty right to hunt and trap is held by the First Nation. However, the individuals asserted that the logging permits were issued for specific tracts traditionally assigned to them and that this gave them a greater interest in protecting their right to hunt and trap than other members of the First Nation. The Court found it unnecessary to make a final decision on this issue of standing, since it dismissed the appeal on the grounds of abuse of process.

4.3 Abuse of process

The Court found that the individuals’ assertion of breach of the duty to consult and of treaty rights in defence against the Company’s claim amounted to an abuse of process. They chose not to contest by legal proceedings the validity of the permits when first issued, nor did they raise their concerns with Moulton. Instead, they waited until after the permits were issued and without any warning, set up a camp that blocked access to the logging sites assigned to Moulton. The Court held that to allow the individuals 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. This would constitute an abuse of process.

  1. Decision

The Court dismissed the appeal with costs to Moulton.