On May 9, 2013, the Supreme Court of Canada issued its decision
in Behn v Moulton Contracting Ltd., 2013 SCC 26.
Moulton brought an action against several members of the Aboriginal
Fort Nelson First Nation (“FNFN”) after said
individuals had erected a camp blocking the company’s access
to its logging sites. Moulton had received authorization from the
Ministry to harvest timber on the FNFN lands. Throughout the
licensing process, the Behn family headman had not responded to any
of the consultation efforts, and first challenged the
Government’s authorizations only after issuance. Neither the
FNFN nor the defendant individuals raised concerns with Moulton
when the licences were originally granted.
The defendant individuals tried to assert a defence on the basis
of breach of treaty rights and breach of duty to consult. The Court
held that the duty to consult was owed to the collective, and could
only be raised by individuals if said individuals are authorized to
represent the collective. As there was no evidence in the pleadings
that the FNFN had authorized the Behns to represent the First
Nation to contest the legality of the timber sale licences and road
access permit. The defendant individuals also asserted a breach of
treaty rights to hunt and trap. The Court acknowledged that treaty
rights could possibly be collective or individual, but declined to
make a final decision on the matter by determining the case on
abuse of process.
The Court dismissed the appeal as an abuse of process, as the
individuals had failed to raise their concerns with Moulton,
setting up a camp blocking Moulton’s access only after the
company had incurred substantial costs. According to the Supreme
Court, “[t]o allow the Behns 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 of justice into disrepute [para 42].”
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