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Bulletin

Supreme Court of Canada Grants Leave to Appeal in Collateral Attack Case

Fasken
Reading Time 3 minute read
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Aboriginal Law Bulletin

On April 5, 2012, the Supreme Court of Canada granted leave to appeal from Moulton Contracting Ltd. v. Fort Nelson First Nation, 2011 BCCA 312. 

The decision under appeal was decided by the BC Court of Appeal in July 2011 (our bulletin on the appeal is online here).

The Supreme Court of Canada has summarized the issues under appeal and the underlying case in Moulton in this way:

Aboriginal law – Treaty rights – Logging – Duty to consult – Civil procedure – Standing – Collateral attack – Whether the Court of Appeal correctly concluded that it is plain and obvious that Aboriginal individuals who hold rights under s. 35 of the Constitution Act, 1982 lack standing to assert, in a civil action, defences rooted in either their Aboriginal and treaty rights or the Crown's duty to consult – Whether it is an impermissible collateral attack for a party to challenge government instruments – on the basis of non-compliance with the Constitution – in the defence of civil actions, when those Crown decisions are used as the basis for a private cause of action.

The Crown granted the respondent Moulton Contracting Inc. two timber sale licences and one road permit by which it could log certain areas of land located within the Behn Family Territory. That territory is located within the Treaty 8 territory of the Fort Nelson First Nation. The applicants are members of the Behn family and are, with one exception, members of the Fort Nelson First Nation. After Moulton's access to the area was impeded by at least some of the applicants, Moulton filed a claim for damages against them, the First Nation and their Chief, and the Crown.

In their statement of defence, the applicants denied, inter alia, that their acts were unlawful because, they alleged, the licenses and permit were issued unlawfully and gave no rights to harvest the timber or access the area. They alleged that the Crown both failed to consult adequately with the Fort Nelson First Nation prior to issuing the licences and permit to Moulton and, in issuing the instruments, interfered with the ability of the Fort Nelson First Nation to exercise its Treaty 8 rights meaningfully. In their view, this constituted an impermissible intrusion into the exclusive legislative jurisdiction of Parliament. The Crown and Moulton successfully applied to have paragraphs of the applicants' statement of defence struck on the basis that the applicants did not have standing to advance constitutional arguments relating to treaty rights that belong to the Fort Nelson First Nation, and that it was plain and obvious that the pleadings disclosed no reasonable defence or that they constituted an abuse of process.

The Supreme Court will likely have to determine whether self-help remedies have any place in the law of reconciliation of Aboriginal rights and Crown sovereignty. The Court will also likely have to determine when Aboriginal individuals have standing to assert defences rooted in collective Aboriginal and treaty rights.

Chuck Willms and Katey Grist acted as counsel for Moulton Contracting Ltd.

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