The Supreme Court of Canada confirmed in this decision rendered
on May 9, 2013, that failure to raise in a timely manner
a breach of the duty to consult is opposable to its beneficiaries
(Behn v. Moulton
Contracting Ltd., 2013 SCC 26).
The Behn family, whose members are members of the Fort Nelson
First Nation (FNFN), in British Columbia, hunted and trapped on a
territory covered by both treaties and certain ancestral right
In June 2006, after various exchanges with FNFN
representatives, the Ministry of Forests granted permits to Moulton
Contracting ("Moulton), a logging company, to harvest wood on
some parcels of land located within the Behn family trapline.
The Behn family reacted in October 2006 by blocking the
access road leading to the parcels of land to which the permits
applied, thus preventing Moulton from exercising its harvesting
Moulton then instituted damages proceedings against the Behn
When the Behn family raised in defence the invalidity of
Moulton's permits on the basis of a breach of the duty to
consult the FNFN, Moulton asked the Court to strike out this
allegation on the basis that neither the Behn family nor the FNFN
had contested in due course the validity of the permits. Moulton
was successful both in the first instance and in appeal.
The Supreme Court of Canada also concluded that the Behn family
members were wrong in taking the law into their own hands by
blocking access to the harvesting areas and that its members could
not raise in defence the invalidity of Moulton's permits as
they had not attempted to contest the validity thereof in due time.
The Court was of the view that such a tactic constituted an abuse
of process which may bring the administration of justice into
This very interesting decision deals with a procedural
aspect, that is, the absence of capacity of the Behn family to
raise the issue of collective rights benefiting the FNFN.
On the other hand, it is interesting to note that it is through
the inherent power of the courts to prevent abuse of process that
the allegation respecting the invalidity of Moulton's permits
was kept out of the debate.
Lastly, members of the First Nations will have to take note of
the fact that they are not allowed to take the law into their own
hands. They must seize the courts if they are of the view that the
Crown's duty to consult has been breached.
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