Aboriginal Law Update: "Behn v. Moulton Contracting Ltd.", 2013 SCC 26

Introduction

On May 9, 2013, the Supreme Court of Canada (SCC) released its reasons in Behn v. Moulton Contracting Ltd.,¹ unanimously dismissing the appeal of the appellants, individuals who were members of the Fort Nelson First Nation (FNFN). Moulton Contracting Ltd. (Moulton), a logging company, commenced a tort action against the appellants for damages resulting from the appellants' road blockade, which prevented access to Moulton's timber harvesting sites. The SCC held that the appellants could not raise the defences that the Crown had breached its duty to consult in respect of the issuance of the logging licences or that the licences violated their treaty rights.

The SCC held that in the circumstances, the individual members of the FNFN did not have standing to allege a breach of the duty to consult without the authorization of the FNFN, as they had not been authorized by the FNFN. Further, the defences constituted an abuse of process because the appellants