Aboriginal Law Update:

Introduction

On May 9, 2013, the Supreme Court of Canada (SCC) released its reasons in Behn v. Moulton Contracting Ltd.,¹ unanimously dismissing the appeal of the appellants, individuals who were members of the Fort Nelson First Nation (FNFN). Moulton Contracting Ltd. (Moulton), a logging company, commenced a tort action against the appellants for damages resulting from the appellants' road blockade, which prevented access to Moulton's timber harvesting sites. The SCC held that the appellants could not raise the defences that the Crown had breached its duty to consult in respect of the issuance of the logging licences or that the licences violated their treaty rights.

The SCC held that in the circumstances, the individual members of the FNFN did not have standing to allege a breach of the duty to consult without the authorization of the FNFN, as they had not been authorized by the FNFN. Further, the defences constituted an abuse of process because the appellants had previously failed to challenge the licences themselves through the appropriate legal means. Notably, the SCC also emphasized the prejudice to Moulton that would result if the appellants were entitled to raise such defences.

Background

This case arose from a decision of the British Columbia Ministry of Forests (Ministry) to grant licences and a road permit (Authorizations) to Moulton to harvest timber in two areas located within the Treaty 8 traditional territory of the FNFN and the trapline area of members of the Behn family (Behns). The Behns were notified by the Ministry of proposed new harvesting blocks in their trapline area, however they did not raise any concerns with the Ministry until after the Authorizations were granted. Moulton was not advised of any problems until after it had moved its equipment onto a site and had made commitments to deliver timber from the site to a mill. The Behns erected a camp on the access road leading to the harvesting sites, blocking Moulton's access to the logging sites.

Moulton filed a tort action in the Supreme Court of British Columbia (BCSC) against the Behns, the Chief of the FNFN on behalf of herself and the FNFN, and the Crown, and claimed damages for interference with contractual relations. In defence, the Behns argued that the Authorizations were illegal and void, by alleging (i) that the Crown had failed to fulfil its duty to consult in issuing the Authorizations and (ii) that the licences infringed their Treaty 8 hunting and trapping rights. Moulton applied to strike those defences on the basis that it was plain and obvious that they did not disclose a reasonable defence or that the relief sought was an abuse of process. The Crown agreed and also submitted that the Behns lacked standing to raise an allegation of breach of the duty to consult.

Decisions of the Lower Courts

Both the BCSC and the British Columbia Court of Appeal (BCCA) held that the Behns did not have standing to assert the collective rights of the FNFN in their defence, as they were not authorized to do so (although Saunders J.A. of the BCCA noted that she was not suggesting that collective rights could never provide a defence to individual members of an Aboriginal community). The courts further held that such a challenge to the validity of the Authorizations amounted to a collateral attack, or abuse of process, since the Behns had failed to challenge the validity of the Authorizations earlier, through proper legal channels.

SCC Decision

On appeal, writing for the unanimous court, Lebel J. considered the following issues:

Whether the Behns, as individual members of an Aboriginal community, have standing to assert on their own (a) a breach of the duty to consult, or (b) Aboriginal or treaty rights.
Whether it amounts to an abuse of process for the Behns to challenge the validity of the Authorizations in defence of Moulton's action, after having failed to take legal action when the Authorizations were first issued.

1. Standing to allege breach of the duty to consult

After reviewing the principles of the duty to consult set out in earlier SCC case law, Lebel J. noted that the purpose of the Crown's duty to consult is to protect the section 35 rights of Aboriginal peoples, which are collective in nature.² Therefore, the duty is owed to the Aboriginal group that holds such rights. However, he noted that an Aboriginal group can authorize an individual or organization to represent it for the purpose of asserting its section 35 rights.³

Lebel J. held that even if such a claim by individuals were possible, in this case there was no allegation in the pleadings that the FNFN had authorized the Behns to represent it to oppose the validity of the Authorizations and to assert a breach of the duty to consult on their own.⁴

2. Standing to allege breach of Aboriginal or treaty rights

Lebel J. stated that, while Aboriginal and treaty rights are collective in nature, certain rights are exercised by individuals and may also have individual aspects. He stated that "it may well be that, in appropriate circumstances, individual members can assert certain Aboriginal or treaty rights.⁵ ... In a broad sense, it could be said that these rights might belong to them or that they have individual aspects regardless of their collective nature."⁶

However, in the circumstances, Lebel J. held that he could not make a definitive pronouncement on whether the Behns can raise a breach of their Treaty 8 rights on their own, and further, that a final decision on the issue of standing was not necessary in the appeal, because the issue of abuse of process was determinative.⁷

3. Abuse of process

Lebel J. made several observations regarding the doctrine of abuse of process, namely that an abuse of process is the bringing of proceedings that are oppressive, vexatious, or that violate the principles of justice.⁸ He noted that a judge has the "inherent and residual discretion to prevent abuse of the court's process" and that the doctrine of abuse of process is characterized by its flexibility, is unencumbered by specific requirements⁹ and exists to ensure that the administration of justice is not brought into disrepute.¹⁰

Lebel J. held that in the circumstances, "raising a breach of the duty to consult and of treaty rights as a defence was an abuse of process." He noted that neither the Behns nor the FNFN had made any attempt to legally challenge the Authorizations when they were granted by the Ministry, through judicial review, by seeking injunctive relief or otherwise, and that they did not raise any concerns with Moulton. Lebel J. further noted that if the Behns had sought to resolve the issue of standing and had raised the issue at the appropriate time, "Moulton would not then have been led to believe that it was free to plan and start its logging operations."¹¹

Lebel J. concluded that by blocking access to the logging sites:

... the Behns put Moulton in the position of having either to go to court or to forgo harvesting timber pursuant to the Authorizations it had received after having incurred substantial costs to start its operations. To allow the Behns to raise their defence based on treaty rights and 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. 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 Nation.¹²

For these reasons, the SCC held that the Behns should not be entitled to raise a breach of their treaty rights and of the duty to consult, and dismissed the appeal.

Discussion

1. Collective versus individual rights

The SCC commented that, while Aboriginal and treaty rights are collective in nature, certain rights may be exercised by individual members of a First Nation and may have individual aspects. The SCC commented that in appropriate circumstances, individual members may assert certain Aboriginal and treaty rights.¹³ In our view, this is correct and is not a new proposition at law. Many Aboriginal rights cases have involved the assertion of Aboriginal and treaty rights by individuals, including raising such rights in their defence to regulatory or criminal charges.

However, the SCC declined to go further and attempt to classify or develop categories of Aboriginal and treaty rights or to distinguish collective versus individual rights. The SCC held that, on this appeal, it was not necessary to do so, and confined its conclusions to what was needed to determine the issues at hand; it held that the issue of abuse of process was determinative. Whether there may be any value in creating categories of collective versus individual rights in future cases remains to be seen.

2. Individuals' rights to assert the duty to consult

The more crucial point from the SCC in this decision is that an individual can only allege a breach of the duty to consult if the individual has been authorized to do so by the Aboriginal group that holds the Aboriginal or treaty rights. In this sense, this decision confirms previous pronouncements from the SCC that the duty to consult is owed to an Aboriginal group, and not to individual members of such group.

We also note that, in making this determination, the SCC focussed on the importance of pleadings in determining Aboriginal issues in court. The SCC found that the pleadings provided no basis to support the suggestion that the FNFN authorized the Behns to represent the FNFN for the purpose of contesting the legality of the Authorizations, either expressly or implicitly. This focus on the importance of pleadings is a common thread in recent Aboriginal and treaty rights jurisprudence. For example, the SCC's decision in Lax Kw'alaams Indian Band v. Canada (A.G.)¹⁴ and the BCCA's decision in William v. British Columbia¹⁵confirm that in Aboriginal and treaty rights cases, the pleadings will define the issues to be determined at trial, including the characterization of the right, following the same rules of civil procedure as any other case.

3. Rights of third parties

It is notable that, in determining that the defences raised by the Behns were an abuse of process, a significant factor for the SCC was the unfairness and significant prejudice that would be caused to the third party, Moulton, if the defences were allowed to stand. This is consistent with other SCC rulings on the duty to consult in which the SCC has stressed the importance of balancing the rights and interests of Aboriginal peoples and non-Aboriginal peoples, and that reconciliation involves the rights and interests of both. The SCC also commented on the mutual duty of good faith on the part of both the Crown and Aboriginal peoples in dealing with these issues.

Footnotes

1 2013 SCC 26 (Moulton).

2 Moulton, at para. 30.

3 Ibid.

4 Ibid. at para. 31.

5 Ibid. at para. 33.

6 Ibid. at paras. 34 – 35.

7 Ibid. at para. 36.

8 Ibid. at para. 39.

9 Ibid. at para. 40.

10 Ibid. at para. 41.

11 Ibid. at para. 38.

12 Ibid. at para. 42.

13 Ibid. at para. 33.

14 2011 SCC 56, at paras. 40 – 47.

15 2012 BCCA 285, at para. 287.

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Canada: Aboriginal Law Update: "Behn v. Moulton Contracting Ltd.", 2013 SCC 26