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
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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