The surprising Behn decision

by reconciliationproject

So the Supreme Court finally released its reasons in Moulton v. Behn. I have to admit, the outcome didn’t really surprise me, although the reasons were a bit shocking.

I’ve been through various aspects of this case in previous postings, and I do think it presents a bit of a minefield for the Court. The core issue, in my mind, is whether the Behns have sufficient juridical personality to assert treaty rights, or whether a First Nation claimant can ever really be the only holder of treaty or aboriginal rights.

The Court had all kinds of precedent and a sufficient policy basis to support a holding that only Indian Act councils, or other aboriginal governments recognized as decision-making authorities through Parliamentary legislation, can claim or assert rights (say, Davey v. Isaac,, Logan v. Styres, I had figured that the Court might limit its holding just to applications relevant to the duty to consult. This was not the direction the Court went in Behn.

Incidentally, I am aware there are a number of cases that support this proposition better than Logan v. Styres, I just really appreciate the backstory on that case. Davey, by contrast, is an SCC case (albeit in my mind an outdated one) and would likely be considered as a binding precedent by most courts in Canada.

First, though it’ll be helpful to state the core holding of Behn. This is actually kind of important because this case is ripe to be over-read. The Supreme Court was clearly disturbed by the fact that the Behns resorted to self-help, that is, setting up a roadblock and coming to court (and challenging the issuance of a Crown permit) only when sued civilly by Moulton contracting.

For the SCC, this case is really about Access to Justice and Rule of Law. This is a remarkably crisp judgment, especially for an aboriginal rights case. I think the Court really wanted to get the point across that the appropriate action for rights-holders who are aggrieved is to turn to the courts before turning to direct action.

As a consequence, the Behns’ claims that the issuance of the permits as a defence to Moulton’s tort claim was tossed out as an abuse of process.

In other words, what this decision stands for is if anybody wants to challenge Crown acts or omissions, they have to challenge those acts or omissions in some kind of a timely fashion (and possibly directly). In a sense, I read Behn as following a string of cases on duty to consult calling for good faith from all parties, something that goes back to Halfway River (1999 BCCA 470 (CanLII)), a case which incidentally predates the Haida/Taku duty to consult and accommodate.

That’s a very important point for the Court to get across, and its one reason why defending the principle of Access to Justice, particularly for indigenous claimants, is extremely important. If claimants don’t have faith in the system, they won’t turn to the Courts at all, something which very nearly happened in this case.

This is a moderately surprising holding, only because the core issue in Behn was whether individuals or family units have the ability to assert treaty rights. Framed in this way, one would think it to be an uncontroversial proposition, I mean there are several examples of individuals who have successfully defended themselves from wildlife prosecutions using their treaty rights.

The Court’s analysis of the duty to consult focused on whether the Behns, as individuals, were authorized by to represent the Fort Nelson First Nation for the purposes of the duty to consult. I think this skirts the question of why FNFN as a legitimate rights holder rather than the Behns? Aboriginal rights derive from practices which pre-exist contact with Europeans. I really don’t like that formulation, nor do I like much of the jurisprudence, which supports it because I find it unprincipled.

These issues of juridical personality (or standing) and aboriginal rights is a good example. If aboriginal rights derive from pre-existing practices and if First Nations are creations of a statute (which suggests First Nations themselves didn’t come into existence until after contact with Europeans), then are First Nations supposed to claim rights?

This is likely to be a blockbuster legal issue if aboriginal rights jurisprudence ever evolves beyond indigenous consumption of natural resources (hunting, trapping, fishing, etc) into issues more akin to actual collective rights (like governance). While I have my own ideas about how the law can recognize the successors-in-interest to collective rights holders (we’ll call them indigenous nations for now), perhaps alongside First Nations, or in many cases as First Nations.

Credit the Court for staying away from this issue. Its not that the issue is unresolvable, its that an analysis could have consumed several hundred paragraphs. Even worse, such an analysis would have invariably distracted readers from the core point the Court is making in Behn.

The Supreme Court did note that “an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its s. 35 rights: see e.g. Komoyue Heritage Society v. British Columbia (Attorney General), 2006 BCSC 1517 (CanLII), 2006 BCSC 1517, 55 Admin. L.R. (4th) 236.” (at para 30).

This citation speaks to the paucity of decisions dealing with individual/collective aboriginal rights. I really wish the SCC had inserted a pinpoint because I didn’t read this decision to support this point. In fact, it kind of reads the opposite. For example, at para 54, the judge in Komoyue concludes, “Komoyue Heritage Society has no status to bring this petition either in its own right or as a representative petitioner.”

Why? Well, “since no alleged aboriginal rights could be transferred to the Komoyue Heritage Society by any members of the alleged Q-KFN or any of the alleged descendants of the signatories of the Queackar-Douglas Treaty, they are not a necessary party to this proceeding.” (at para 30). I’m not really familiar with Komoyue, but the parallels with some issue in the Kwicksutaineuk case ( or the Spookw issue (c lead me to believe that standing, identity of a proper rights holder, etc. are important issues which need clarification from the SCC.

Maybe not here (though aside from the abuse of process issue, Behn offered a pretty good opportunity to do so), though. I’m actually a bit happy the Court didn’t get into these issues in Behn, but instead delivered a focused judgment. Moreover, Kwicksutaineuk was denied leave to appeal to the SCC, so I’m not sure these issues are ‘important enough’ as yet. I am convinced; however, that they will be raised again.

And I’ll be curious to see how the Crown deals with them. For in Kwicksutaineuk, I have pointed out that it appears the federal Crown suggested the First Nation actually did lack the representivity to bring a claim (apparently without suggesting a principled framework against which to assess representivity – a pretty convenient position for the Crown). Yet in Behn, the court rejected the Crown’s argument (I’m assuming this was the provincial Crown) a blanket requirement that treaty claims (and possibly aboriginal rights claims more generally) must be “brought by, or on behalf of, the Aboriginal community” (at para 33).

The Supreme Court’s assertion at paragraph 30 is, nonetheless, reasonable. It makes a great deal of sense that First Nations, Inuit or Metis could authorize individuals or bodies corporate to pursue claims on behalf of the rights holder. In fact, this happens all the time. One of my concerns about treaty rights in general is that the bargain appears to be about securing a release (hence, the cede, release, surrender language) from any claims a treaty group might make, while conveniently refusing to acknowledge whether those claims are valid, or indeed, whether those rights even exist! It’s a pretty convenient legal framework for the Crown to operate within because the Crown never needs to actually recognize any pre-existing rights.

Indeed, proceedings in aboriginal and treaty rights cases by way of representative actions are quite common – I imagine there is little caselaw in this area, though I note that Canada did everything it could to make this an issue in Kwicksutaineuk. The SCC in Behn appears to be receptive to the articulation of a principled framework to identify rights holders, at least in circumstances where there appears to be a dispute about the identity of the rights holder (or here, whether individuals can pursue the claim). While I’m not crazy about the framework offered in the Komoyue case, I’d also point out the SCC didn’t expressly adopt it – the court simply referred to the case as an example (and its much, much better than nothing).

The Court’s language at paragraph 30, using the term “Aboriginal group” instead of “First Nation” is slightly encouraging in this regard. Similarly the Court’s rejection of the Crown’s assertion that treaty rights claims can only be advanced by the community, at paragraph 33, is pretty encouraging (though again, I’m not sure about whether the Crown’s position(s) on this point were scrutinized, either).

The dicta in this case provides some degree of hope for a more principled articulation of identifying the proper rights holder, as well as for more critical thinking on what collective rights actually mean (sometimes I suspect the SCC simply stated aboriginal rights are collective rights without very much reflection on the mechanics of collective rights, nor of the consequences of making that statement). Such thinking is sorely needed, especially within the indigenous rights community, probably among the bench, and I would hope among the Crown(s).

In sum, this holding attempts to balance Access to Justice and Rule of Law considerations. These two foundational legal principles are mutually supportive. I find that the SCC may be making a genuine attempt to assert that aboriginal disputes should be resolved in courts – something I often don’t find in court statements.

I hope that is, in fact, where the Court is going in Behn. The core holding itself is relatively simple (which is to say good, because its easy to understand); however, the reality is that unless potential claimants have confidence in the legal system, they may be quite reluctant to take their disputes to court in the first place.

This is clearly already happening in some areas, and can only be combatted by ensuring Access to Justice for indigenous claimants, as well as ensuring Rule of Law (for example, by ensuring a court victory actually translates into some meaningful remedy).

That; however, is another matter for another day. And is, in my mind, the true question raised by the SCC in the Behn case – whether courts can articulate a principled framework for aboriginal law in which access to justice and rule of law considerations are complementary, rather than oppositional.