Turtle Talk

Here’s an interesting case for civil disobedience-minded aboriginals to remember.  In Moulton Contracting v. B.C., several members of the Behn family of  Fort Nelson First Nation blockaded a logging road which they had traplines on.  They did so because, they asserted, British Columbia did not consult with Fort Nelson in any meaningful way and because the logging (done by Moulton Contracting) interfered with their Treaty 8 rights.

However, the trial judge struck these paragraphs of their statement of defence out (and the appellate court affirmed)  because, the court held, individual members of the Fort Nelson First Nation did not have standing to advance the legal positions set out in those paragraphs because the rights asserted were collective rights of the Aboriginal community. 

34          It seems to me the proposition that the Behns have standing because they assert a defence rather than a claim, a shield rather than a sword, is to put form over substance. It is, further and in my view, to expose the respectful resolution of issues between the provincial (or federal) government and the First Nation to the risk of an end-run, whereby individuals may engage in self-help rather than using available legal channels and, when challenged by court process, then litigate individually these communal rights. In this sense, allowing individuals to assert a position on a collective right may have unexpected consequences and, simply, lacks order.

35          This approach, in my view, is consistent with jurisprudence describing treaty rights and sui generis First Nation rights as communal. For example, in Delgamuukw v. B.C., [1997] 3 S.C.R. 1010, Chief Justice Lamer said at para. 115:

A further dimension of aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community. This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests.

[Emphasis in original.]

36          Since Delgamuukw this proposition has not been disputed. The communal nature of Aboriginal rights has been repeatedly affirmed: see, for example, R. v. Sappier; R. v. Gray, 2006 SCC 54, [2006] 2 S.C.R. 686; and R. v. Sundown, [1999] 1 S.C.R. 393.

37          In Queackar-Komoyue Nation v. British Columbia, 2006 BCSC 1517, Mr. Justice Davies considered the standing of individual members of an Aboriginal community to challenge, through a representative action, an environmental certificate issued by the British Columbia Minister of the Environment. He reviewed Oregon Jack Creek Indian Band v. Canadian National Railway Co. (1989), 34 B.C.L.R. (2d) 344(C.A.), aff’d [1989] 2 S.C.R. 1069, 63 D.L.R. (4th) 607; Sawridge Band v. Canada, 2001 FCA 399, 283 N.R. 112; R. v. Marshall, [1999] 3 S.C.R. 533, 4 C.N.L.R. 301; R. v. Chevrier, [1989] 1 C.N.L.R. 128, 6 W.C.B. (2d) 43 (Ont. Dist. Ct.); R. v. Trotchie, 2002 SKPC 99, 225 Sask. R. 187; and R. v. Simon, [1985] 2 S.C.R. 387.  Mr. Justice Davies then said, correctly in my view:

[35] After having considered the totality of the evidence and the submissions of all counsel, I have concluded that the decided case law does not support the petitioners’ assertion that self-appointed aboriginal persons have, in the past, and should in this case, be allowed standing as individuals to assert collective treaty or other collective aboriginal rights on behalf of an aboriginal community.

38          To like effect in Canadian National Railway v. Brant, 96 O.R. (3d) 734, [2009] 4 C.N.L.R. 47 (S.C.J.), Justice Strathy said:

[50] Aboriginal title, treaty rights and Aboriginal rights are a right held byAboriginal people in common and they cannot be asserted by individual members of the community.

39          The Behns correctly observe that these cases address the standing of First Nations persons to commence an action, rather than defend a claim against them. However, as I have sought to explain, the characterization of the matter as shield or sword ignores the substance of the First Nations interest asserted. In the pleadings struck, the Behns do not assert a First Nations right to engage in the “blockade” activity of which Moulton complains. Instead they challenge instruments issued by the Crown and say they are invalid. To succeed in these defences they require a declaration of invalidity. Such 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.