A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP
The Supreme Court of Canada issued one decision of interest to Canadian businesses and professions this week.
In Behn v. Moulton Contracting Ltd., 2013 SCC 26, the Court affirmed the B.C. Court of Appeal's finding that the Behns, as individual members of an Aboriginal community, did not have standing to assert collective rights in their defence, as only the community could raise such rights.
The Crown granted logging licences to a forest company to harvest timber in two areas on the territory of the Fort Nelson First Nation in British Columbia. The licences were opposed by George Behn and individual family members, who set up a blockade camp on the road leading to the area allocated for harvest.
The company brought a tort action against the individuals, who argued in their defences that the timber licences were void because they had been issued in breach of the constitutional duty to consult and because they violated their rights under Treaty 8. The logging company filed a motion to strike these defences.
The court below held that the individual members of the Aboriginal community did not have standing to assert collective rights in their defence; only the community could invoke such rights. The appeal court also concluded that such a challenge to the validity of the licences amounted to a collateral attack or an abuse of process, as the members of the community had failed to challenge the validity of the licences when they were issued. For further discussion of the decision of the Court of Appeal, see the previous blog entry here.
The Supreme Court dismissed the appeal, holding that the duty to consult exists to protect the collective rights of Aboriginal peoples and is owed to the Aboriginal group that holds them. The Court acknowledged that an Aboriginal group could authorize an individual or an organization to represent it for the purpose of asserting its Aboriginal or treaty rights, but that that was not the case here.
The Court also acknowledged that certain Aboriginal and treaty rights may have both collective and individual aspects, and it may well be that in appropriate circumstances, individual members could assert such rights. It was suggested that where there was a connection between the rights at issue and a specific geographic location within the First Nation's territory, individual community members could have a greater interest in the protection of the rights on their traditional family territory than do other members of the First Nation, and that this connection may give them a certain standing to raise the violation of their particular rights as a defence to a tort claim. However, the Court declined to issue a definitive pronouncement in this regard and left the door open for a future case.
Regarding the allegation of abuse of process, the Court found that neither the First Nation nor the community members had made any attempt to legally challenge the licences when the Crown granted them. In the Court's view, to now allow the members 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 into disrepute. It would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown's constitutional duty to consult First Nations.
The facta of the parties may be found here, and a webcast of the oral argument is available here.
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