In Moulton Contracting Ltd. v. British Columbia, 2013
BCSC 2348, a BC Supreme Court found that a private company could
rely on permits to claim damages from the Crown when members of a
First Nation blockaded a road and prevented the company's
access to timber lots covered by the permits. In light of the case,
those relying on permits to develop resources on lands affected by
claims of Aboriginal rights and title should review negotiate the
terms of pending permits with attention to issues flowing from the
duty to consult.
Justice Saunders found the Province of British Columbia
liable for $1.75 million in damages to Moulton Contracting Ltd.
("Moulton") for breach of both an implied contractual
term and an implied representation associated with Timber Sale
Licences ("TSLs") the Ministry of Forests
("MoF") had issued to Moulton. Moulton had lost the
opportunity to secure other logging contracts when George Behn and
members of his family (the "Behns"), members of the Fort
Nelson First Nation ("FNFN"), blockaded access to
Moulton's cut blocks.
Justice Saunders found that given the Crown must know that
conflict could arise if consultation was not sufficient, for
business efficacy, the TSLs must have contained two implied
That the Province had engaged in all necessary consultation
with affected First Nations, and had discharged its duty to
That the Province was not aware of any First Nations expressing
dissatisfaction with the consultation undertaken by the Province,
save as the Province had disclosed to Moulton Contracting (para.
Justice Saunders found that FNFN's lack of capacity meant
consultation was not meaningful and MoF owed a duty to delay both
the Amendment and the TSLs until the FNFN's concerns had been
However, there was not a sufficient causal connection between
the insufficient consultation and the Behn's blockade. Mr.
Behn's August 31, 2006 letter to MoF could be read as
opposition to all industrial activity in the area. On the balance
of probabilities, Mr. Behn was unlikely to have been satisfied by
any level of consultation and Moulton's losses did not flow
from the inadequate consultation. Moreover, the Blockade Exemption
relieved the Province of liability even if the Province was at
Justice Saunders did find that the Province had breached the
implied term that it was not aware of any First Nations expressing
dissatisfaction with its consultation. MoF did not inform Moulton
of Mr. Behn's threat at a critical time when Moulton could have
pursued other contracts. The Province was concurrently liable in
negligence, based on an implied continuing representation.
The court found no liability on the part of either the Behns or
Following this decision, it is likely that Crown agencies will
draft permits to exclude liability for inadequate consultation and
the failure to warn. Proponents negotiating permits should pay
particular attention to these clauses.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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