Supreme Court

Aboriginal Peoples

Raising breach of duty to consult and of treaty rights was abuse of process

Crown granted plaintiff company timber sale licences and road permit to log certain land. Defendants, members of family and members of Fort Nelson First Nation (FNFN), were licensed to trap in area within territory of FNFN. Land covered by licences was within defendants’ trapping territory. Defendants impeded company’s access to logging areas. Company brought action against defendants, Crown and FNFN. Defendants maintained they erected lawful camp on family territory pursuant to treaty rights, claiming that licences and road permit granted in breach of Crown’s duty to consult. Company successfully applied to strike out certain paragraphs of statement of defence on grounds that individual members of FNFN did not have standing to advance legal positions because rights asserted were collective rights of aboriginal community and that challenge to instruments constituted impermissible collateral attack. Defendants’ appeal dismissed. Crown has duty to consult aboriginal peoples in context of treaty rights. Duty to consult exists to protect collective rights of Aboriginal peoples and owed to aboriginal group that holds s. 35 Constitution Act, 1982 rights, which are collective in nature. Aboriginal group can authorize individual or organization to represent it for purpose of asserting s. 35 rights but FNFN did not authorize defendants to represent it for purpose of contesting legality of impugned instruments. Defendants not entitled to assert breach of duty to consult on their own as duty owed to aboriginal community. Raising breach of duty to consult and of treaty rights as defence in circumstances was abuse of process. Neither defendants nor FNFN made any attempt to legally challenge instruments when granted. By blocking access to logging sites, defendants put company in position of having to go to court or to forgo harvesting timber pursuant to licences it received after incurring substantial start-up costs. To allow defendants to raise defence based on treaty rights and on breach of duty to consult at this stage would amount to repudiation of duty of mutual good faith and constitute abuse of process.

Moulton Contracting Ltd. v. British Columbia (May. 9, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34404) Decision at 203 A.C.W.S. (3d) 684 was affirmed.  226 A.C.W.S. (3d) 612.

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