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Supreme Court of Canada Dismisses Leave in Aboriginal Consultation Cases

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Aboriginal Law Bulletin

On July 11, 2013, the Supreme Court of Canada dismissed applications for leave to appeal two British Columbian Aboriginal cases: Halalt First Nation v. British Columbia, 2012 BCCA 472 (Halalt), and Canadian Forest Products Ltd. v. Sam, 2013 BCCA 58 (Sam). In an important recent decision, Behn v. Moulton Contracting Ltd., 2013 SCC 26 (Moulton), the Supreme Court of Canada provided guidance regarding the issues in the Sam case, concluding that raising a breach of duty to consult and treaty rights as a defence in a tort action was an abuse of process.

Case Background: Halalt

The Halalt First Nation challenged the environmental assessment certificate issued for the Chemainus Wells Project, which involved the construction and operation of three pumps to pump ground water from the Chemainus Aquifer. The river runs through the Halalt First Nation’s reserve and a part of the aquifer runs under the reserve. The Halalt First Nation sought declarations that the Province failed to adequately consult with or reasonably accommodate the Halalt First Nation’s asserted Aboriginal rights and title.

At trial, the BC Supreme Court found that the Province failed to conduct a strength of claim assessment, inadequately consulted with, and failed to adequately accommodate the Halalt First Nation. The Court of Appeal set aside the Supreme Court’s findings and held that the lack of a formal strength of claim assessment does not necessarily undermine the adequacy of consultation and that the Province adequately consulted with and accommodated the Halalt First Nation. For more information, please see our bulletin regarding the BC Court of Appeal decision and our bulletin regarding the BC Supreme Court decision.

Case Background: Sam

Soon after Canadian Forest Products Ltd. (Canfor) commenced logging activities in the Redtop Creek area near Topley, British Columbia, under a cutting permit issued by the Province, members of the Sam family, from the Kelah house of the Wet’suwet’en First Nation, blockaded Canfor’s access road.

Canfor sought an interim injunction against Richard Sam and the other named defendants to prevent them from obstructing its logging operations and from obstructing road access and road building associated with the logging operations. Canfor’s claims included trespass, nuisance, interference with economic relations, and unlawful blocking of a public road.

In a separate action, Hagwilneghl and Kelah on behalf of all Members of the House of Ginehklaiyex of the Lakisilyu clan of the Wet’suwet’en First Nation (collectively called the “Kelah plaintiffs”) sought an interlocutory injunction to restrain Canfor from engaging in any logging activities, including road construction, in the Redtop area.

The Chambers Judge heard the injunction applications together. She allowed the Kelah plaintiff’s interim injunction application to restrain Canfor from timber harvesting activities and dismissed Canfor’s interim injunction application.

On appeal, Canfor argued that the Chambers Judge erred by failing to conclude that the Kelah plaintiffs’ injunction application was an impermissible collateral attack on Canfor’s cutting permits. The doctrine of collateral attack prevents a party from challenging a binding decision in an improper forum and requires that the decision be challenged directly through proceedings mounted against the decision maker, such as by judicial review.

The Court of Appeal held that the Kelah respondents’ activities were an impermissible collateral attack on the issuance of Canfor’s cutting permit and set aside the injunction ordered by the Chambers Judge. Justice Hall stated “[r]ather than tending to advance the goals of consultation, accommodation, and reconciliation adverted to as desirable and necessary in Supreme Court of Canada decisions, the present order seems more a recipe for stasis than any timely resolution.” (at para 27). The Court of Appeal also dismissed Canfor’s appeal of the Chambers Judge’s refusal to grant an injunction in favour of Canfor.

In its reasons, the Court of Appeal relied on the BC Court of Appeal’s decision in Moulton Contracting Ltd. v. Behn, 2011 BCCA 311, aff’d 2013 SCC 26, which addressed whether members of the Fort Nelson First Nation had standing to defend their actions, in setting up a blockade, by pleading that the logging licences were unlawfully issued because they infringed their treaty rights and were issued in breach of the Crown’s duty to consult. The Court of Appeal (and, more recently, the Supreme Court of Canada) held that the defendants’ actions amount to an abuse of process because they did not contest the validity of Moulton’s logging authorizations by legal means when they were issued, such as by judicial review. Since the Court of Appeal’s decision in Sam, the Supreme Court of Canada has come out with its reasons in Moulton, stating that allowing such a defence in that case “would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute” (at para 42). For further information on Moulton, please see our bulletin on the Supreme Court of Canada decision released May 2013, and our bulletin on the BC Court of Appeal Decision released July 2011.

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