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Canada’s Supreme Court Requires Aboriginal Groups to Follow Statutory Process

Author(s): Maureen Killoran, KC, Tommy Gelbman, Elizabeth Coyle

May 16, 2013

On May 9, 2013, the Supreme Court of Canada released its decision in Behn v. Moulton Contracting Ltd., 2013 SCC 26, affirming that Aboriginal groups seeking to challenge the validity of permits or authorizations granted to resource developers must follow the legislatively mandated process to do so. An Aboriginal group that chooses to forgo legal remedies will not be permitted to (a) employ “self-help” remedies to challenge the permitted undertaking; or (b) defend against the enforcement of those permits in civil proceedings by challenging the validity of validly issued authorizations. The Supreme Court concluded that allowing these actions would bring the administration of justice into disrepute and amount to a repudiation of the duty of mutual good faith underlying the Crown’s constitutional duty to consult First Nations.

The decision in Moulton Contracting is significant to proponents of industrial projects that trigger environmental assessments and Aboriginal consultation obligations. It provides strong authority that Aboriginal groups and other parties must advance their grievances in the appropriate legal forum. When permits are issued and not formally challenged through a legislatively mandated process, proponents that take steps to act on those permits will be afforded a high degree of protection against self-help remedies, such as blockades, or collateral attacks on the validity of validly issued permits.

Factual Background

The Appellants, the Behn family, are, with one exception, members of the Fort Nelson First Nation (FNFN). FNFN is an Indian Band as defined by the Indian Act1 and a signatory to Treaty 8, a treaty within the meaning of section 35 of the Constitution Act, 1982.

The British Columbia Ministry of Forests (the Ministry) granted Moulton Contracting Ltd., a logging company, two timber sale licences and one road permit (the Authorizations) to harvest timber on parcels of land within FNFN’s territory.

The Authorizations were issued under amendments made by the Ministry to the Small Business Forest Enterprise Program Forest Development Plan for the Fort Nelson Timber Supply Area (the FDP). Prior to making the Authorizations, the Ministry afforded FNFN a number of opportunities to consult on the proposed amendments, including two archaeological impact assessments for potentially affected lands.

Having received the Authorizations, Moulton moved equipment to the harvesting site and committed to deliver timber from that site.

The Behns alleged that they have traditionally hunted and trapped on those lands. They set up a camp on an access road, preventing Moulton from accessing the land designated for harvest.

In response, Moulton brought a claim in the British Columbia Supreme Court against the Behns, among other parties, seeking damages for interference with contractual relations. In their defence, the Behns pleaded that the Authorizations were void because they had been issued in breach of the Crown’s duty to consult and violated their Aboriginal and treaty rights. Moulton brought a motion to strike these defences.


In striking these defences, the Court considered whether (a) the Behns, as individual members of FNFN, had standing to assert FNFN’s collective Aboriginal rights; and (b) it was an abuse of process to plead that the Authorizations were void due to an alleged failure to consult.


The Court affirmed the existing jurisprudence that the Crown’s duty to consult is owed to the Aboriginal group that holds section 35 rights and can only be asserted by individuals when they have been authorized by the group to do so. Since no such authorization was issued by FNFN, the Behns had no standing to assert a breach of the duty to consult.

The Court adopted a different position with Aboriginal or treaty rights. Rejecting the Crown’s submission that claims in relation to treaty rights must be brought by, or on behalf of, the Aboriginal community, the Court held that, in appropriate circumstances, individuals can assert certain Aboriginal or treaty rights, and left for another day the framework for exercising such rights.

Abuse of Process

The Court focused on the Behns’ failure to challenge the validity of the Authorizations in the appropriate forum. Neither the Behns nor FNFN applied for judicial review, injunctive relief or any other form of judicial relief in respect of the Authorizations. Had they done so, the Ministry could have suspended the licences until the dispute was resolved. Such authority was expressly provided for in the Authorizations.

The Behns’ decision to forgo legal challenges to the Authorizations and instead engage in self-help remedies against Moulton was manifestly unfair; in the Court’s words, having relied on the Authorizations, the Behns’ conduct “put Moulton in the position of having either to go to court or to forgo harvesting timber pursuant to the Authorizations it had received after having incurred substantial costs to start its operations.” Allowing the Behns to impugn the Authorizations as a defence in civil proceedings against them constituted an abuse of process that would have brought the administration of justice into dispute.

Significantly, the Court also concluded that to permit such a collateral attack would amount to a repudiation of the duty of mutual good faith underlying the Crown’s constitutional duty to consult First Nations.

1 R.S.C. 1985, c. I-5


Authored by Maureen Killoran Q.C., Thomas D. Gelbman, Elizabeth Coyle