Canada: Aboriginal Rights – Whose Rights Are They Anyways?

Last Updated: June 11 2012
Article by Curtis E. Marble

Most Read Contributor in Canada, September 2018

The Supreme Court of Canada recently granted leave to appeal from the judgment of the BC Court of Appeal in Sally Behn et al. v. Moulton Contracting Ltd. et al.. This appeal addresses a critical issue in aboriginal law – do aboriginal rights belong to individuals, or only to communities? Aboriginal communities and commercial interests alike will closely watch this appeal.


The Behns are individual members of the Fort Nelson First Nation (the "First Nation") who allegedly blocked a road required by Moulton Contracting Ltd ("Moulton") to engage in logging activity. The Behns' defence alleged that (i) Moulton did not have valid logging and road rights due to a lack of meaningful consultation with the First Nation, and (ii) there could not be any such rights granted, as they would interfere with Treaty 8 rights.

At the BC Supreme Court, Hinkson J. granted an order striking portions of the Behns' Statement of Defence, thereby curtailing these issues.

In granting the order striking these defences, Hinkson J. determined:

1) that individual members of the First Nation do not have standing to advance these legal positions as the rights asserted are rights belonging to the First Nation collectively;

2) the challenge to the instruments said to give logging and road use rights to Moulton was a collateral attack on those instruments. Accordingly, the challenge was not permissible, and should have been pursued through administrative law means; and

3) the constitutional arguments of federal exclusivity could not succeed in the circumstances.

The Behns appealed each of these three findings. The BC Court of Appeal dismissed the appeal. Leave has been granted to the Supreme Court of Canada.

The First Ground

On the first ground, the Court of Appeal determined that "...[Hinkson J.] was correct in concluding that the Behns lack standing to assert that the duties owed to the Fort Nelson First Nation were not met or that its collective rights were infringed..." In particular, the Court of Appeal found that the duty to consult is not synonymous with a substantive right. Rather, it is a procedural right not to be framed so broadly as to provide a defence to an individual. The Court of Appeal wrote:

The proposition that it does not lie in the mouth of individual members of the Fort Nelson First Nation to attack these Crown granted instruments, whether as an offensive move by starting a claim or as a defensive move in response to a claim [...] It leaves to the First Nation the decision as to when and how to engage in the consultation spoken of in the jurisprudence, when and how to settle issues in the collective's best interests, and when not to settle, making all of these decisions bearing in mind their history, the community's present and future needs, expectations and challenges, and the nature of the issues presented.

Importantly, the Court of Appeal determined that, were individuals permitted to assert collective rights and engage in self-help rather than use the existing legal channels, there could be unexpected consequences. Further, assuming there was a breach of the duty to consult, a range of remedies might be ordered: such a breach does not automatically result in nullification of the instruments already granted. Accordingly, the Court found that the judge was correct in finding that the Behns lacked standing to advance the defences subject to this appeal.

The Second Ground

On the second ground of appeal, abuse of process, the trial judge determined that the defences were an "...impermissible collateral attack upon instruments given to Moulton by the Crown..." The Behns said that the judge erred in this conclusion. The Behns, when arguing that the judge erred, took the position that inter alia,;

...the rule against collateral attack is inapplicable...

and that:

...there have been no proceedings testing the validity of the instruments and until this action there was no lis between them (the Behns) and any other person. Thus, they say the instruments are not "orders" against them, and the doctrine of collateral attack does not apply.

The Behns additionally argued that, even if the claim was a collateral attack, it is not impermissible if a collateral attack is required to adjudicate the matter. It was argued that this was equally true for a defence. The Court of Appeal held that:

Allowing that there will be instances in which a party may be allowed to attack the substance of a decision en route to determining a claim in damages, in my view this is not a case for that approach [...] I agree with the judge that such a pleading is an abuse of process.

In determining whether this would leave the Behns, or individuals like them, without recourse when faced with Crown granted instruments, the Court of Appeal noted that the "[First Nation] had the capacity to challenge the instruments through whatever proper spokespersons or avenues in its wisdom it might use." The Court of Appeal, therefore, determined that a collateral attack was impermissible here, and this ground must fail.

The Third Ground

On the third ground of appeal, inter-jurisdictional immunity, the Behns argued that the there was a reasonable defence based on the limits of the provincial ability to interfere with a core matter within federal jurisdiction. In particular, although Treaty 8 permits the Crown to 'take up' land for lumbering, that ability is not unlimited. Moulton, on the other hand, urged the Court of Appeal to uphold the judge's conclusions on the issue, saying that inter-jurisdictional immunity has no relevance and, even if it did, it is a doctrine of limited application. The Court of Appeal decided that the issue should not be decided on a pleadings motion.

The Court of appeal declined to consider inter-jurisdictional immunity, determining that it should not be decided on a pleadings motion. Having rejected the first two grounds for appeal, and refusing to consider the third, the Court of Appeal dismissed the appeal.

Significance of the Appeal to the Supreme Court of Canada

The issue of whether aboriginal rights belong to particular Aboriginal communities or to individuals is of key importance in this area of the law. If the Supreme Court determines Aboriginal rights belong to individuals then – as observed by the British Columbia Court of Appeal – there may be significant unexpected consequences. In particular, such a finding will open the door to individual members of particular Aboriginal communities to assert, without necessarily having the support of their community, that their rights were not respected. Where there is disagreement within an aboriginal community over, for example, consultation regarding a resource extraction operation, this could result in significant controversy within a community, and difficult legal challenges for those companies impacted.

On the other hand, if the Supreme Court determines that the rights in question belong to the community – not to the individual – there will be a significant impact on the ability of individuals to assert important rights, such as the right to consult. If Aboriginal rights are rights that can only be asserted by a community, there may be little recourse for those who feel their community has ignored their voice. In an era of increasing resource pressures, in particular in forestry and oil and gas development, such voices may only get louder.

Case Information

Sally Behn et al. v. Moulton Contracting Ltd. et al.

SCC Docket No: 34404

Leave to Appeal Granted: April 5, 2012

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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