Supreme Court of Canada – 2013 SCC 26
The Supreme Court tackles a long standing issue in aboriginal law: can Aboriginal individuals assert ancestral rights?
The Court decided that unless an individual was appointed to represent its First Nation as an ensemble in the defense of its rights, he or she can not assert a breach to the Crown’s duty to consult.
Individuals can nonetheless, in some instances, ask the government to discuss with them directly or assert their rights before the court when they have interest in an aboriginal or treaty right with an individual aspect
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. (para. 35 of the decision)
The duty to consult is due to the First Nation as a whole, and not to its individual members. Individuals could, however, take action to protect their treaty rights in certain situations when a connection between the rights at issue and a particular geographic location may justify a more individual aspect – the Behns should have contested the logging license in court instead of blocking access to the logging sites. Asserting their rights only this late in the process constituted an abuse of process (unanimous decision).
Between: Sally Behn, Susan Behn, Richard Behn, Greg Behn, Rupert Behn, Lovey Behn, Mary Behn and George Behn
And: Moulton Contracting Ltd. and the Crown of British Columbia
Interveners: 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
In June of 2006, the government of British Columbia issued a logging license to Moulton Contracting Ltd. The license covers the Behn family’s trapline. The Behns are members of the Fort Nelson First Nation, a signatory of Treaty 8 which recognizes the nation’s right to hunt or trap on its territory.
The minister of Forest had communicated with the First Nation as well as with the Behns before granting the license, and again to inform them of his decision. He had also given the company’s coordinates to the family and told them that the work would begin in August.
On August 31st, the Behns asked the ministry to withdraw its authorization. In October, they set up camp on the roadway that leads to the logging site, effectively preventing Moulton from harvesting timber.
Moulton therefore filed a statement of claim against the Behn family and the Fort Nelson First Nation, claiming damages for interference with their work.
The Behns: They were not consulted with regards to the logging license, which constitutes an infringement on their Treaty No. 8 rights to hunt and trap.
Moulton Contracting Ltd.: The duty to consult, as well as treaty rights, are collective rights that are held by a First Nation. Therefore, individual members like the Behns cannot use these rights as a defense for blocking the roadway.
British Columbia: Even though the Behn family has special interest in the treaty rights at issue, this is insufficient to grant them standing as individuals; it is the Aboriginal community’s responsibility and not theirs.
Supreme Court of British Columbia (2010): The Behn family does not have standing to assert collective rights; only the First Nation can do so. Moreover, their challenge as to the legality of the licenses amounts to a collateral attack or an abuse of process. They should have filed a statement of claim the moment the permits were granted.
British Columbia Court of Appeal (2011): Confirmed the lower judgement. In order to act independently, the Behn family should have had the authorization of their nation due to the collective nature of the rights invoked. The validity challenge is an abuse of process because there were multiple other legal avenues possible.
McLachlin, LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner
The duty to consult aims to protect collective Aboriginal rights, as guaranteed by section 35 of the Constitution Act, 1982. If the group has not given authorization, an individual cannot invoke a breach of this obligation. None of the members of the Behn family had authorization to represent the Fort Nelson First Nation.
Aboriginal and treaty rights are also collective but may have individual aspects. It could therefore be possible to have standing to invoke infringement on these rights in an individual manner. The Court did not address this question.
Abuse of process
The abuse of process constitutes a violation to the duty of mutual good faith between the Crown and the Aboriginal community.
The Behn family did not legally contest the grant of the logging permits and did not notifiy Moulton of their concerns in good time. Their lack of respect for the principle of fair play effectively prevents them from alleging their Aboriginal and treaty rights as a defense.
If the Aboriginal groups cannot take justice into their own hands by erecting blockades to protect their lands, resources and culture, they have, on the other hand, the right to defend their treaty rights before the courts as individuals.
Evidently, legal actions take time and money. As a matter of fact, the Court recognizes the diversity and the complexity of aboriginal and treaty rights. They come from different practices and documents, and are not exercised in the same way or at the same places. The Court notes the “interesting suggestions” of the Grand Council of the Crees and Cree Regional Authority, interveners, who suggested 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.”
Applies and clarifies Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511
McIvol, Bruce. 2013. « The Duty to Consult—A Roadblock to Direct Action ». First Peoples Law. En ligne http://www.firstpeopleslaw.com/index/articles/143.php Consulté le 27 juin 2013.
Parent, Alexandra. 2013. « L’affaire Behn en Cour suprême du Canada : le temps n’est plus au désespoir ». Faits et Causes. En ligne http://www.faitsetcauses.com/2013/05/22/decision-de-la-cour-supreme-du-canada-sur-les-droits-autochtones-le-temps-nest-plus-au-desespoir/ Consulté le 27 juin 2013.
Schmitz, Cristin. 2013. « Aboriginal case breaks new ground ». The Lawyers Weekly, Vol. 33, no 4.