SUPREME
COURT OF CANADA
Between:
Sally
Behn, Susan Behn, Richard Behn, Greg Behn, Rupert Behn,
Lovey
Behn, Mary Behn, George Behn
Appellants
and
Moulton
Contracting Ltd. and Her Majesty the Queen in
Right
of the Province of British Columbia
Respondents
- and -
Attorney
General of Canada, Chief Liz Logan, on behalf of herself and all
other
members of the Fort Nelson First Nation and the said Fort Nelson
First
Nation, Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority,
Chief
Sally Sam, Maiyoo Keyoh Society, Council of Forest Industries,
Alberta
Forest Products Association and Moose Cree First Nation
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell,
Moldaver, Karakatsanis and Wagner JJ.
Reasons
for Judgment:
(paras. 1 to 43)
|
LeBel J. (McLachlin C.J. and Fish,
Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
concurring)
|
Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2
S.C.R. 227
Sally Behn, Susan Behn, Richard Behn,
Greg Behn,
Rupert Behn,
Lovey Behn, Mary Behn and George Behn Appellants
v.
Moulton Contracting Ltd. and Her Majesty
The Queen
in Right of
the Province of British Columbia Respondents
and
Attorney General of Canada, Chief Liz
Logan, on behalf of
herself and all other members of the
Fort Nelson First Nation
and the said Fort Nelson First Nation,
Grand Council of the
Crees (Eeyou Istchee)/Cree Regional
Authority, Chief Sally Sam,
Maiyoo Keyoh Society, Council of Forest
Industries, Alberta
Forest
Products Association and Moose Cree First Nation Interveners
Indexed as: Behn v. Moulton Contracting Ltd.
2013 SCC 26
File No.: 34404.
2012: December 11; 2013: May 9.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein,
Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for british columbia
Civil procedure — Standing — Aboriginal law —
Treaty rights — Duty to consult
— Individual members of Aboriginal community
asserting in defence to tort action against them that issuance of logging
licences breached duty to consult and treaty rights — Whether individual members have standing to assert collective rights
in defence.
Civil procedure — Abuse of process — Motion to strike
pleadings — Members of Aboriginal community
blocking access to logging site and subsequently asserting in defence to tort
action against them that issuance of logging licences breached duty to consult
and treaty rights — Whether raising defences
constituted abuse of process.
After
the Crown had granted licences to a logging company to harvest timber in two
areas on the territory of the Fort Nelson First Nation in British Columbia, a
number of individuals from that First Nation erected a camp that, in effect,
blocked the company’s access to the logging sites. The company brought a tort
action against the members of the Aboriginal community, who argued in their
defences that the licences were void because they had been issued in breach of
the constitutional duty to consult and because they violated their treaty
rights. The logging company filed a motion to strike these defences. The
courts below held that the individual members of the Aboriginal community did
not have standing to assert collective rights in their defence; only the
community could invoke such rights. They also concluded that such a challenge
to the validity of the licences amounted to a collateral attack or an abuse of
process, as the members of the community had failed to challenge the validity
of the licences when they were issued.
Held:
The appeal should be dismissed.
The
duty to consult exists to protect the collective rights of Aboriginal peoples
and is owed to the Aboriginal group that holds them. While an Aboriginal group
can authorize an individual or an organization to represent it for the purpose
of asserting its Aboriginal or treaty rights, here, it does not appear from the
pleadings that the First Nation authorized the community members to represent
it for the purpose of contesting the legality of the licences. Given the
absence of an allegation of authorization, the members cannot assert a breach
of the duty to consult on their own.
Certain
Aboriginal and treaty rights may have both collective and individual aspects,
and it may well be that in appropriate circumstances, individual members can
assert them. Here, it might be argued that because of a connection between the
rights at issue and a specific geographic location within the First Nation’s
territory, the community members have a greater interest in the protection of
the rights on their traditional family territory than do other members of the
First Nation, and that this connection gives them a certain standing to raise the
violation of their particular rights as a defence to the tort claim. However,
a definitive pronouncement in this regard cannot be made in the circumstances
of this case.
Raising
a breach of the duty to consult and of treaty rights as a defence was an abuse
of process in the circumstances of this case. Neither the First Nation nor the
community members had made any attempt to legally challenge the licences when
the Crown granted them. Had they done so, the logging company would not have
been led to believe that it was free to plan and start its operations. Furthermore,
by blocking access to the logging sites, the community members put the logging
company in the position of having either to go to court or to forego harvesting
timber after having incurred substantial costs. To allow the members 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. It would also amount to a
repudiation of the duty of mutual good faith that animates the discharge of the
Crown’s constitutional duty to consult First Nations.
Cases Cited
Referred
to: Garland v.
Consumers’ Gas Co., 2004
SCC 25, [2004] 1 S.C.R. 629; Haida Nation v. British Columbia (Minister of
Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Mikisew Cree First Nation v.
Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Beckman
v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; R. v. Kapp,
2008 SCC 41, [2008] 2 S.C.R. 483; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; R. v.
Van der Peet, [1996] 2 S.C.R. 507; Taku River Tlingit First Nation v.
British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3
S.C.R. 550; Komoyue Heritage Society v. British Columbia (Attorney General),
2006 BCSC 1517, 55 Admin. L.R. (4th) 236; R. v. Sparrow, [1990] 1 S.C.R.
1075; R. v. Sundown, [1999] 1 S.C.R. 393; R. v. Marshall, [1999]
3 S.C.R. 533; R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686; Toronto
(City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; R. v. Power,
[1994] 1 S.C.R. 601; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Scott,
[1990] 3 S.C.R. 979; Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d)
481, rev’d 2002 SCC 63, [2002] 3 S.C.R. 307; Blencoe v. British Columbia
(Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307.
Statutes and Regulations Cited
Constitution Act, 1982, s. 35 .
Forest Act, R.S.B.C. 1996, c. 157.
Indian Act, R.S.C. 1985, c. I‑5 .
Supreme Court Civil Rules, B.C. Reg.
168/2009, r. 9‑5(1).
Supreme Court Rules, B.C. Reg. 221/90
[rep.], r. 19(24).
Treaties and Agreements
Treaty No. 8 (1899).
Authors Cited
Newman, Dwight G. The Duty to Consult: New Relationships
with Aboriginal Peoples. Saskatoon: Purich, 2009.
Perell, Paul M. “A Survey of Abuse of Process”, in Todd L.
Archibald and Randall Scott Echlin, eds., Annual Review of Civil Litigation
2007. Toronto: Thomson Carswell, 2007, 243.
Woodward, Jack. Native Law, vol. 1. Toronto:
Carswell, 1994 (loose‑leaf updated 2012, release 5).
APPEAL
from a judgment of the British Columbia Court of Appeal (Saunders, Chiasson and
Frankel JJ.A.), 2011 BCCA 311, 20 B.C.L.R. (5th) 35, 309 B.C.A.C. 15, 523
W.A.C. 15, [2011] 3 C.N.L.R. 271, 335 D.L.R. (4th) 330, [2011] B.C.J. No. 1271
(QL), 2011 CarswellBC 1693, affirming a decision of Hinkson J., 2010 BCSC
506, [2010] 4 C.N.L.R. 132, [2010] B.C.J. No. 665 (QL), 2010 CarswellBC
889. Appeal dismissed.
Robert J. M. Janes and Karey M. Brooks, for the appellants.
Charles F. Willms and Bridget Gilbride, for the respondent Moulton Contracting
Ltd.
Keith J. Phillips and Joel Oliphant, for the respondent Her Majesty the Queen
in Right of the Province of British Columbia.
Brian McLaughlin,
for the intervener the Attorney General of Canada.
Allisun Rana and Julie
Tannahill, for the interveners Chief Liz Logan, on behalf of herself and
all other members of the Fort Nelson First Nation and the said Fort Nelson
First Nation.
John Hurley and
François Dandonneau, for the interveners the Grand Council of the Crees
(Eeyou Istchee)/Cree Regional Authority.
Christopher G. Devlin and John W. Gailus, for the interveners Chief Sally Sam
and the Maiyoo Keyoh Society.
John J. L. Hunter, Q.C., Mark S. Oulton and Stephanie McHugh,
for the interveners the Council of Forest Industries and the Alberta Forest
Products Association.
Jean Teillet and Nuri G.
Frame, for the intervener the Moose Cree First Nation.
The judgment of the Court was
delivered by
LeBel J. —
I. Introduction — Overview
[1]
This appeal raises issues of standing and abuse
of process in the context of relations between members of an Aboriginal
community, a logging company, and a provincial government. After the Crown had
granted licences to a logging company to harvest timber in two areas on the
territory of the Fort Nelson First Nation (“FNFN”) in British Columbia, a
number of individuals from that First Nation erected a camp that, in effect,
blocked the company’s access to the logging sites. The company brought a tort
action against these members of the Aboriginal community, who argued in their
defence that the licences were void because they had been issued in breach of
the constitutional duty to consult and because they violated the community
members’ treaty rights.
[2]
The logging company filed a motion to strike
these defences. The courts below held that the individual members of the
Aboriginal community (the “Behns”) did not have standing to assert collective
rights in their defence; only the community could raise such rights. The
courts below also concluded that such a challenge to the validity of the
licences amounted to a collateral attack or an abuse of process, as the Behns
had failed to challenge the validity of the licences when they were issued.
[3]
The Court is asked to consider in this appeal
whether an individual member or group of members of an Aboriginal community can
raise a breach of Aboriginal and treaty rights as a defence to a tort action
and, if so, in what circumstances. But, as this question of standing is not
determinative for the purposes of this appeal, the Court must also decide
whether the doctrine of abuse of process applies in this case.
[4]
For the reasons that follow, I would dismiss the
appeal.
II. Facts
[5]
As this is an appeal from a decision on a motion
to strike pleadings, the following facts are taken from the pleadings. The
Behns are, with one exception, members of the FNFN, a “band” within the meaning
of the Indian Act, R.S.C. 1985, c. I-5 . The FNFN is a party to Treaty
No. 8 of 1899, which covers an area comprising parts of Alberta, British
Columbia, Saskatchewan and the Northwest Territories. The Behns allege that
they have traditionally hunted and trapped on a part of the FNFN’s territory
that has historically been allocated to their family.
[6]
Moulton Contracting Ltd. (“Moulton”) is a
company incorporated pursuant to the laws of British Columbia. On June 27,
2006, the British Columbia Ministry of Forests (“MOF”) granted Moulton two
timber sale licences and a road permit (the “Authorizations”) pursuant to the Forest
Act, R.S.B.C. 1996, c. 157. These Authorizations entitled Moulton to
harvest timber on two parcels of land within the FNFN’s territory, both of
which are within the Behn family trapline. The Behns stated in their Amended
Statement of Defence that the FNFN manages its territory by allocating parts of
it (called traplines) to specific families:
While the rights provided for in the Treaty
# 8 extended throughout the tract described in the treaty, most of the
aboriginal people comprising the Fort Nelson First Nation traditionally ordered
themselves so that the rights to hunt and trap set out in Treaty 8 were
exercised in tracts of land associated with different extended families. These
extended families were headed by a headman. [A.R., at p. 89]
[7]
Before granting the Authorizations, the MOF had
contacted representatives of the FNFN and individual trappers, including George
Behn, the headman of the Behn family, in developing and amending its forest
development plan (“FDP”). The MOF contacted the FNFN in August 2004 and
individual trappers, including Mr. Behn, in September 2004 to notify them that
additional harvesting blocks were being proposed. The trappers it contacted
were invited to advise it of any concerns they had or provide it with comments
by October 20, 2004. MOF officials met a representative of the FNFN in
November 2004 to discuss consultation on the proposed amendment to the FDP.
The issue of funding to enable the FNFN to provide information to the MOF was
discussed at that meeting. Funding was ultimately refused. On January 31,
2005, the MOF wrote to the FNFN to advise it that archaeological impact
assessments would be conducted for certain areas proposed for harvesting in the
amendment to the FDP. Two archaeological impact assessments were completed in
August 2005, and copies of them were delivered to the FNFN. The MOF and the
FNFN met again on September 21, 2005 to discuss the proposed amendment further.
[8]
The MOF approved the amendment to the FDP. On
June 2, 2006, it put the two timber sale licences relevant to this appeal up
for sale. After granting the Authorizations to Moulton, the MOF wrote to
George Behn on June 28, 2006, to advise him that Moulton had been awarded
licences to harvest timber within his trapping area. In that letter, George
Behn was advised to contact Moulton directly to confirm the date its harvesting
operations were to commence. The MOF again wrote to Mr. Behn on July 17,
2006, to advise him that the operations would begin on August 1, 2006. On
August 31, 2006, George Behn wrote to the MOF, requesting that the
Authorizations granted to Moulton be cancelled and seeking consultation. No
copy of this letter was sent to Moulton.
[9]
Between September 19 and September 22, 2006,
Moulton started moving its equipment to one of the two sites to which the
Authorizations applied. On September 25, 2006, the MOF notified Moulton that
there was a potential problem with George Behn. The MOF requested that Moulton
move its operations to the second site. Moulton replied that it could not do
so because it had commitments to a mill to deliver timber from the first site.
[10]
In early October 2006, the Behns erected a camp
on the access road leading to the parcels of land to which the Authorizations
applied. The camp blocked access to the land where Moulton was authorized to
harvest timber.
[11]
On November 23, 2006, Moulton filed a statement
of claim in the British Columbia Supreme Court against the Behns, Chief Logan
on behalf of herself and the FNFN, and the Crown. Moulton claimed damages from
the Behns for interference with contractual relations. In their statement of
defence, the Behns denied that their conduct was unlawful. They alleged that
the Authorizations were illegal for two reasons. First, the Crown had failed
to fulfil its duty to consult in issuing the Authorizations. Second, the
Authorizations infringed their hunting and trapping rights under Treaty No. 8.
[12]
Moulton applied under Rule 19(24) of the Supreme
Court Rules, B.C. Reg. 221/90 [repealed] (now Rule 9-5(1), Supreme Court
Civil Rules, B.C. Reg. 168/2009), to have a number of paragraphs struck out
of the Behns’ statement of defence on the ground (1) that it was plain and
obvious that they did not disclose a reasonable defence, or (2) that the relief
being sought in them constituted an abuse of process. In substance, the
paragraphs Moulton sought to have struck related to the Behns’ allegations that
the Authorizations were invalid because they had been issued in breach of the
Crown’s duty to consult and because they violated the Behns’ treaty rights, and
to their allegations that their acts were neither illegal nor tortious. The
Crown supported Moulton’s application and further submitted that the Behns
lacked standing to raise a breach of the duty to consult or of treaty rights,
as only the FNFN had such standing.
III. Judicial History
A. British Columbia Supreme Court, 2010
BCSC 506, [2010] 4 C.N.L.R. 132
[13]
Hinkson J. held that the Behns lacked standing
to raise the defences pertaining to the duty to consult and treaty rights. He
stated that although Aboriginal and treaty rights are exercised by individuals,
they are collective in nature. As a result, they are not possessed by nor do
they reside with individuals. He mentioned that collective rights can be
asserted by individuals only if the individuals are authorized to do so by the
collective. Hinkson J. found that the FNFN had not authorized the Behns to assert
these rights.
[14]
Hinkson J. also held that the impugned
paragraphs in which the Behns submitted that the Authorizations were invalid
had to be struck out as an abuse of process under Rule 19(24) of the Supreme
Court Rules. He reasoned that the Behns could not be permitted to
introduce the subject matter of the invalidity of the Authorizations now in
their statement of defence, as they should instead have applied for judicial
review.
[15]
It should be noted that the trial then proceeded
from September to November 2011 in the British Columbia Supreme Court on the
basis of the paragraphs that had survived the motion to strike. The trial
judge has reserved his judgment until this Court disposes of this appeal.
B. British Columbia Court of Appeal, 2011 BCCA 311, 20
B.C.L.R. (5th) 35
[16]
Saunders J.A., writing for the Court of Appeal,
agreed with Hinkson J. that the Behns lacked standing to assert that the duty
to consult owed to the FNFN had not been met and that collective rights had
been infringed by the issuance of the Authorizations. She said, at para. 39,
that “an attack on a non-Aboriginal party’s rights, on the basis of treaty or
constitutional propositions, requires authorization by the collective in whom
the treaty and constitutional rights inhere”. In this case, the Behns had
received no such authorization by the FNFN. Saunders J.A. was careful to point
out that she was not suggesting that collective rights could never provide a
defence to individual members of an Aboriginal community.
[17]
Saunders J.A. also concluded that the defences
raised by the Behns constituted an impermissible collateral attack upon the
Authorizations granted to Moulton. She added that this conclusion was not
incompatible with the proper administration of justice, since the FNFN, as a
collective, had the capacity to challenge the Authorizations through a number
of legal avenues. She therefore upheld Hinkson J.’s conclusion that the
impugned defences constituted an abuse of process.
IV. Analysis
A. Issues
[18]
Three issues must be addressed in this appeal.
First, can the Behns, as individual members of an Aboriginal community, assert
a breach of the duty to consult? This issue raises the question to whom the
Crown owes a duty to consult. Second, can treaty rights be invoked by
individual members of an Aboriginal community? These two issues relate to
standing.
[19]
The third issue relates to abuse of process.
Does it amount to an abuse of process for the Behns to challenge the validity
of the Authorizations now that they are being sued by Moulton after having
failed to take legal action when the Authorizations were first issued even
though they objected to their validity at the time?
B. Positions
of the Parties
(1) Behns
[20]
The Behns submit that the Court of Appeal erred
in holding that they lacked standing to assert defences based on treaty rights
and that challenging the validity of the Authorizations constituted an
impermissible collateral attack. The Behns contend that the principles related
to standing apply to the assertion of a claim, not of a defence. As a result,
they do not apply in this case, since the Behns are simply defending against an
action. In the alternative, the Behns assert that they have standing because,
as members of the FNFN, they have a substantial and direct interest in their
rights under Treaty No. 8.
[21]
On the collateral attack issue, the Behns argue,
relying on Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R.
629, that the defences they assert do not constitute a collateral attack, since
they are not parties to the Authorizations. Alternatively, they submit that,
if the impugned paragraphs do constitute a collateral attack, the attack is
permissible, because the legislature did not intend that any attempt to
question the lawfulness of the Authorizations could be made only by applying
for judicial review.
[22]
Finally, the Behns submit that the principle of
the rule of law will be violated if they cannot assert their defences. They
contend that whether their conduct was lawful cannot be determined without also
addressing the lawfulness of the Authorizations.
(2) Moulton
[23]
Moulton responds that the Behns have no standing
to raise a defence based on Aboriginal or treaty rights, because only the FNFN,
as the collective, can assert a claim that these rights have been infringed.
Moulton also contends that the Crown’s duty to consult is owed to the
collective, not to individual members of the collective. Responding to the
Behns’ submission that they have standing because they are only seeking the
dismissal of the action, Moulton submits that they are relying on an
affirmative defence that requires an order declaring the Authorizations to be
invalid. Moulton adds that the activity for which the Behns are now being sued
— erecting and participating in a blockade — is not a right protected under
Treaty No. 8. Finally, since the Behns could have challenged the legality
of the Authorizations by applying for judicial review when they were issued,
Moulton submits that it amounts to a collateral attack for the Behns to challenge
their validity now as a defence to a tort claim.
(3) Crown
[24]
According to the Crown, the collective nature of
Aboriginal and treaty rights means that claims in relation to such rights must
be brought by, or on behalf of, the Aboriginal community. Although the Crown
recognizes the Behns’ interest in their treaty rights, it submits that their
position on this issue disregards two factors: (1) the issue arising in the
litigation concerns a defence to a claim related to a blockade, not to the
exercise of hunting or trapping rights; and (2) the FNFN is named as a party to
the proceedings and therefore represents the community in them. The Crown
further submits that having a substantial and direct interest in a treaty right
does not entitle an individual to bring a treaty rights claim or defence.
[25]
On whether the impugned paragraphs constitute an
impermissible collateral attack, the Crown submits that the question is whether
the claimant is content to let the government’s decision stand. In the instant
case, the impugned defences raise an unequivocal challenge to the validity and
legal force of the Authorizations. Furthermore, the Crown submits that the
Behns could have challenged the validity of the Authorizations by applying for
judicial review instead of blockading a road.
C. Standing
(1) Duty
to Consult
[26]
In defence to Moulton’s claim, as I mentioned
above, the Behns argue, inter alia, that their conduct was not illegal,
because the Crown had issued the Authorizations in breach of the duty to
consult and the Authorizations were therefore invalid. The question that
arises with respect to this particular defence is whether the Behns can assert
the duty to consult on their own in the first place.
[27]
In Haida Nation v. British Columbia (Minister
of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, this Court confirmed that
the Crown has a duty to consult Aboriginal peoples and explained the scope of
application of that duty in respect of Aboriginal rights, stating that
“consultation and accommodation before final claims resolution, while
challenging, is not impossible, and indeed is an essential corollary to the
honourable process of reconciliation that s. 35 [of the Constitution Act,
1982 ] demands”: para. 38. In Mikisew Cree First Nation v. Canada
(Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, the
Court held that the duty to consult applies in the context of treaty rights:
paras. 32-34. The Crown cannot in a treaty contract out of its duty to
consult Aboriginal peoples, as this duty “applies independently of the
expressed or implied intention of the parties”: Beckman v. Little
Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para.
61.
[28]
The duty to consult is both a legal and a
constitutional duty: Haida Nation, at para. 10; R. v. Kapp, 2008
SCC 41, [2008] 2 S.C.R. 483, at para. 6; see also J. Woodward, Native Law,
vol. 1 (loose-leaf), at p. 5-38. This duty is grounded in the honour of the
Crown: Haida Nation, Beckman, at para. 38; Kapp, at para.
6. As Binnie J. said in Beckman, at para. 44, “[t]he concept of the
duty to consult is a valuable adjunct to the honour of the Crown, but it plays
a supporting role, and should not be viewed independently from its purpose.”
The duty to consult is part of the process for achieving “the reconciliation of
the pre-existence of aboriginal societies with the sovereignty of the Crown”: Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010, at para. 186, quoting R. v.
Van der Peet, [1996] 2 S.C.R. 507, at para. 31; Haida Nation, at
para. 17; see also D. G. Newman, The Duty to Consult: New Relationships with
Aboriginal Peoples (2009).
[29]
The duty to consult is triggered “when the Crown
has knowledge, real or constructive, of the potential existence of the
Aboriginal right or title and contemplates conduct that might adversely affect
it”: Haida Nation, at para. 35. The content of the duty varies
depending on the context, as it lies on a spectrum of different actions to be
taken by the Crown: Haida Nation, at para. 43. An important component
of the duty to consult is a requirement that good faith be shown by both the
Crown and the Aboriginal people in question: Haida Nation, at para. 42.
Both parties must take a reasonable and fair approach in their dealings. The
duty does not require that an agreement be reached, nor does it give Aboriginal
peoples a veto: Taku River Tlingit First Nation v. British Columbia (Project
Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at paras. 2 and 22;
Haida Nation, at para. 48.
[30]
The duty to consult exists to protect the
collective rights of Aboriginal peoples. For this reason, it is owed to the
Aboriginal group that holds the s. 35 rights, which are collective in nature: Beckman,
at para. 35; Woodward, at p. 5-55. But an Aboriginal group can authorize an
individual or an organization to represent it for the purpose of asserting its
s. 35 rights: see, e.g., Komoyue Heritage Society v. British Columbia
(Attorney General), 2006 BCSC 1517, 55 Admin. L.R. (4th) 236.
[31]
In this appeal, it does not appear from the
pleadings that the FNFN authorized George Behn or any other person to represent
it for the purpose of contesting the legality of the Authorizations. I note,
though, that it is alleged in the pleadings of other parties before this Court
that the FNFN had implicitly authorized the Behns to represent it. As a matter
of fact, the FNFN was a party in the proceedings in the courts below, because
Moulton was arguing that it had combined or conspired with others to block
access to Moulton’s logging sites. The FNFN is also an intervener in this
Court. But, given the absence of an allegation of an authorization from the
FNFN, in the circumstances of this case, the Behns cannot assert a breach of
the duty to consult on their own, as that duty is owed to the Aboriginal
community, the FNFN. Even if it were assumed that such a claim by individuals
is possible, the allegations in the pleadings provide no basis for one in the
context of this appeal.
(2) Aboriginal
or Treaty Rights
[32]
The Behns also challenge the legality of the
Authorizations on the basis that they breach their rights to hunt and trap
under Treaty No. 8. This is an important issue, but a definitive pronouncement
in this regard cannot be made in the circumstances of this case. I would
caution against doing so at this stage of the proceedings and of the
development of the law.
[33]
The Crown argues that claims in relation to
treaty rights must be brought by, or on behalf of, the Aboriginal community.
This general proposition is too narrow. It is true that Aboriginal and treaty
rights are collective in nature: see R. v. Sparrow, [1990] 1 S.C.R.
1075, at p. 1112; Delgamuukw, at para. 115; R. v. Sundown, [1999]
1 S.C.R. 393, at para. 36; R. v. Marshall, [1999] 3 S.C.R. 533, at
paras. 17 and 37; R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686, at
para. 31; Beckman, at para. 35. However, certain rights, despite being
held by the Aboriginal community, are nonetheless exercised by individual
members or assigned to them. These rights may therefore have both collective
and individual aspects. Individual members of a community may have a vested
interest in the protection of these rights. It may well be that, in appropriate
circumstances, individual members can assert certain Aboriginal or treaty
rights, as some of the interveners have proposed.
[34]
Some interesting suggestions have been made in
respect of the classification of Aboriginal and treaty rights. For example,
the interveners Grand Council of the Crees and Cree Regional Authority propose
in their factum, at para. 14, that a distinction be made between three
types of Aboriginal and treaty rights: (a) rights that are exclusively
collective; (b) rights that are mixed; and (c) rights that are predominantly
individual. These interveners also attempt to classify a variety of rights on
the basis of these three categories.
[35]
These suggestions bear witness to the diversity
of Aboriginal and treaty rights. But I would not, on the occasion of this
appeal and at this stage of the development of the law, try to develop broad
categories for these rights and to slot each right in the appropriate one. It
will suffice to acknowledge that, despite the critical importance of the
collective aspect of Aboriginal and treaty rights, rights may sometimes be
assigned to or exercised by individual members of Aboriginal communities, and
entitlements may sometimes be created in their favour. In a broad sense, it
could be said that these rights might belong to them or that they have an
individual aspect regardless of their collective nature. Nothing more need be
said at this time.
[36]
In this appeal, the Behns assert in their
defence that the Authorizations are illegal because they breach their treaty
rights to hunt and trap. They recognize that these rights have traditionally
been held by the FNFN, which is a party to Treaty No. 8. But they also
allege that specific tracts of land have traditionally been assigned to and
associated with particular family groups. They assert in their pleadings that
the Authorizations granted to Moulton are for logging in specific areas within
the territory traditionally assigned to the Behns, where they have exercised
their rights to hunt and trap. On the basis of an allegation of a connection
between their rights to hunt and trap and a specific geographic location within
the FNFN territory, the Behns assert that they have a greater interest in the
protection of hunting and trapping rights on their traditional family territory
than do other members of the FNFN. It might be argued that this connection
gives them a certain standing to raise the violation of their particular rights
as a defence to Moulton’s tort claim. But a final decision on this issue of
standing is not necessary in this appeal, because another issue will be
determinative, that of abuse of process.
D. Abuse of Process
[37]
The key issue in this appeal is whether the
Behns’ acts constitute an abuse of process. In my opinion, in the
circumstances of this case, raising a breach of the duty to consult and of
treaty rights as a defence was an abuse of process. If the Behns were of the
view that they had standing, themselves or through the FNFN, they should have
raised the issue at the appropriate time. Neither the Behns nor the FNFN had
made any attempt to legally challenge the Authorizations when the British
Columbia government granted them. It is common ground that the Behns did not
apply for judicial review, ask for an injunction or seek any other form of
judicial relief against the province or against Moulton. Nor did the FNFN make
any such move.
[38]
Had the Behns acted when the Authorizations were
granted, clause 9.00 of the timber sale agreements provided that the Timber
Sales Manager had the power to suspend the Authorizations until the legal
issues were resolved: trial judgment, at para. 16. Moulton would not then have
been led to believe that it was free to plan and start its logging operations. Moreover,
legal issues like standing could have been addressed at the proper time and in
the appropriate context.
[39]
In Toronto (City) v. C.U.P.E., Local 79,
2003 SCC 63, [2003] 3 S.C.R. 77, Arbour J. wrote for the majority of this Court
that the doctrine of abuse of process has its roots in a judge’s inherent and
residual discretion to prevent abuse of the court’s process: para. 35; see also
P. M. Perell, “A Survey of Abuse of Process”, in T. L. Archibald and R. S.
Echlin, eds., Annual Review of Civil Litigation 2007 (2007), 243. Abuse
of process was described in R. v. Power, [1994] 1 S.C.R. 601, at p. 616,
as the bringing of proceedings that are “unfair to the point that they are
contrary to the interest of justice”, and in R. v. Conway, [1989] 1
S.C.R. 1659, at p. 1667, as “oppressive treatment”. In addition to
proceedings that are oppressive or vexatious and that violate the principles of
justice, McLachlin J. (as she then was) said in her dissent in R. v. Scott,
[1990] 3 S.C.R. 979, at p. 1007, that the doctrine of abuse of process evokes
the “public interest in a fair and just trial process and the proper
administration of justice”. Arbour J. observed in C.U.P.E. that the
doctrine is not limited to criminal law, but applies in a variety of legal
contexts: para. 36.
[40]
The doctrine of abuse of process is
characterized by its flexibility. Unlike the concepts of res judicata
and issue estoppel, abuse of process is unencumbered by specific requirements.
In Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.),
Goudge J.A., who was dissenting, but whose reasons this Court subsequently
approved (2002 SCC 63, [2002] 3 S.C.R. 307), stated at paras. 55-56 that the
doctrine of abuse of process
engages the inherent power of
the court to prevent the misuse of its procedure, in a way that would be
manifestly unfair to a party to the litigation before it or would in some other
way bring the administration of justice into disrepute. It is a flexible
doctrine unencumbered by the specific requirements of concepts such as issue
estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R.
347 [(C.A.)], at p. 358 . . . .
One
circumstance in which abuse of process has been applied is where the litigation
before the court is found to be in essence an attempt to relitigate a claim
which the court has already determined. See Solomon v. Smith, supra.
It is on that basis that Nordheimer J. found that this third party claim ought
to be terminated as an abuse of process. [Emphasis added.]
[41]
As can be seen from the case law, the
administration of justice and fairness are at the heart of the doctrine of abuse
of process. In Canam Enterprises and in C.U.P.E., the doctrine
was used to preclude relitigation of an issue in circumstances in which the
requirements for issue estoppel were not met. But it is not limited to
preventing relitigation. For example, in Blencoe v. British Columbia (Human
Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, the Court held that
an unreasonable delay that causes serious prejudice could amount to an abuse of
process (paras. 101-21). The doctrine of abuse of process is flexible, and it
exists to ensure that the administration of justice is not brought into
disrepute.
[42]
In my opinion, the Behns’ acts amount to an
abuse of process. The Behns clearly objected to the validity of the
Authorizations on the grounds that the Authorizations infringed their treaty
rights and that the Crown had breached its duty to consult. On the face of the
record, whereas they now claim to have standing to raise these issues, the
Behns did not seek to resolve the issue of standing, nor did they contest the
validity of the Authorizations by legal means when they were issued. They did
not raise their concerns with Moulton after the Authorizations were issued.
Instead, without any warning, they set up a camp that blocked access to the
logging sites assigned to Moulton. By doing so, the Behns 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. To 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. It would also amount to a repudiation of the duty
of mutual good faith that animates the discharge of the Crown’s constitutional
duty to consult First Nations. The doctrine of abuse of process applies, and
the appellants cannot raise a breach of their treaty rights and of the duty to
consult as a defence.
V. Conclusion
[43]
For these reasons, I would dismiss the appeal
with costs to the respondent Moulton.
Appeal
dismissed with costs.
Solicitors
for the appellants: Janes Freedman Kyle Law Corporation, Vancouver.
Solicitors
for the respondent Moulton Contracting Ltd.: Fasken Martineau
DuMoulin, Vancouver.
Solicitor
for the respondent Her Majesty the Queen in Right of the Province of
British Columbia: Attorney General of British Columbia,
Victoria.
Solicitor
for the intervener the Attorney General of Canada: Attorney General
of Canada, Vancouver.
Solicitors
for the interveners Chief Liz Logan, on behalf of herself and all other members
of the Fort Nelson First Nation and the said Fort Nelson First
Nation: Rana Law, Calgary.
Solicitors
for the interveners the Grand Council of the Crees (Eeyou Istchee)/Cree
Regional Authority: Gowling Lafleur Henderson, Montréal.
Solicitors
for the interveners Chief Sally Sam and the Maiyoo Keyoh Society: Devlin
Gailus, Victoria.
Solicitors
for the interveners the Council of Forest Industries and the Alberta Forest
Products Association: Hunter Litigation Chambers Law Corporation,
Vancouver.
Solicitors for the
intervener the Moose Cree First Nation: Pape Salter Teillet,
Toronto.