Supreme Court to hear case on Rights of Individuals To Defend Treaty and Aboriginal Rights, Duty to Consult
from fourarrows@rogers.com
10 December 2012 Edition
Supreme Court of Canada Hearing: Behn Case deals with Rights of Individuals To Defend Treaty and Aboriginal Rights, Fulfillment of Duty to Consult and Accommodate
A Four Arrows Summary prepared for www.treaty8.org
A live telecast of the Supreme Court of Canada hearing of Sally Behn, et al. v. Moulton Contracting Ltd., et al. is at http://scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.as px?cas=34404 starting at 9 a.m. EDT on December 11. The webcast will continue to be available after the hearing at the same link. The decision of the Court is expected in late Spring.
Among other legal issues, the case deals with “Aboriginal Law”, Treaty rights. Duty to consult.
The question before the Court is whether the courts below erred in holding that the appellants had no standing to raise the treaty rights defences and whether the courts below erred in holding that the treaty rights defences constituted an impermissible “collateral attack”.
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 appellants 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 appellants, Moulton filed a claim for damages against them, the First Nation and their Chief, and the Crown. In their statement of defence, the appellants 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 appellants’ statement of defence struck on the basis that the appellants 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.
Click here to Read the Entire Summary of this Important Case