Rules for Blockaders – in a nutshell

Having been blockaded (armed with a superior court order no less and accompanied by an archeologist – all in furtherance of the primary recommendation of the Ipperwash Inquiry) it was with great interest that I reviewed the Supreme Court of Canada’s recent directive to blockaders – start playing fair!

This long overdue ruling involved a BC native family out to protect its traplines from clearcutting; they had surprised the logging company by throwing up a roadblock apparently without gaining the band’s formal permission to take such action on its behalf, and without having first filed a legal challenge impugning the pertinent logging permits. With this ruling, those two sequential missteps now put them (as blockaders) on the wrong side of the law.

The ‘doctrine of collateral attack’ was successfully invoked by the loggers; saying that their commercial interests were being singled out by the blockaders – who’s complaint instead lay against the crown’s purported failure to properly consult with them. Here’s how the court decided the three key elements:

Firstly, on the issue as to whether the blockaders even represented their band?

[30]    The duty to consult exists to protect the collective rights of Aboriginal peoples. For this reason, it is owed to the Aboriginal group that holds the s. 35 rights, which are collective in nature: Beckman, at para. 35; Woodward, at p. 5-55.  But 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, 55 Admin. L.R. (4th) 236.

[31]    In this appeal, it does not appear from the pleadings that the Fort Nelson First Nation authorized George Behn or any other person to represent it for the purpose of contesting the legality of the Authorizations. …

Secondly, on the issue of whether the blockaders got their sequence of remedies right?

[37]      …. If the Behns were of the view that they had standing, themselves or through the Fort Nelson First Nation, they should have raised the issue at the appropriate time. Neither the Behns nor the Fort Nelson First Nation had made any attempt to legally challenge the Authorizations when the British Columbia government granted them. It is common ground that the Behns did not apply for judicial review, ask for an injunction or seek any other form of judicial relief against the province or against Moulton. Nor did the Fort Nelson First Nation make any such move.

Thirdly, on the decisive issue of whether the blockaders played fair with the loggers?

[42]     In my opinion, the Behns’ acts amount to an abuse of process…without any warning, they set up a camp that blocked access to the logging sites assigned to Moulton. By doing so, the Behns put Moulton in the position of having either to court or to forgo harvesting timber pursuant to the Authorizations it had after having incurred substantial costs to start its operations. To allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute. It would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown’s constitutional duty to consult First Nations. The doctrine of abuse of process applies, and the appellants cannot raise a breach of their treaty rights and of the duty to consult as a defence. (Behn v. Moulton Contracting Ltd., 2013 SCC excerpts – author’s underlining)

Anyone with a serious track record in advancing the corporate-native relationship in the Canadian resources sector has likely been blockaded. More than any other event, a native blockade propels senior management into the open arms of its litigation lawyers – with instructions to protect their resource rights at all costs. Only now with this long overdue ruling (and its award of court costs against the blockaders) there are serious ‘due process’ legal consequences for natives to consider before throwing up a blockade.

Here then are the new rules for blockades in a nutshell: better call your lawyers; better make sure they’re up to speed, better play fair…(to be continued).

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