Moulton Contracting Ltd. v. Behn, 2011 BCCA 311

In this case, the British Columbia Court of Appeal clarified whether individual members of a First Nation have standing to challenge the validity of government issued instruments on the basis of an alleged failure to consult. They also ruled, in the alternative, on whether such a challenge on the validity of the instruments is an impermissible collateral attack and therefore an abuse of process. Madam Justice Saunders ruled that absent a challenge by the First Nation itself, individual members of the First Nation may not attack the validity of instruments as they lack standing. She also ruled that in the alternative that such a challenge is an impermissible collateral attack.


Moulton Contracting was granted two timber sale licenses and a road permit by the BC government within the treaty 8 territory of the Fort Nelson First Nation. The defendants, members of the Fort Nelson First Nation, blocked the road that provided access to the road referred to in the timber sale licenses and impeded Moulton Contracting’s activities. The Behn family, in their pleadings at trial, argued that Moulton had no rights that were impeded by their actions because the licenses and permit were not valid, as the government had failed its duty to consult before issuing them. Moulton sought to have these pleadings struck. Justice Saunders ruled that the defendants lacked standing to raise this defence as treaty rights are held collectively and must be asserted by the community; it “requires authorization by the collective in whom the treaty and constitutional rights inhere,” which the defendants did not have.


In the alternative, Justice Saunders held that the defendants pleadings were also an impermissible collateral attack on government instruments. She distinguished this case from Canada v. Telezone as this case has at its object the nullification of an order as opposed to Telezone where the validity was immaterial to the damages claim. The defendants were able, and aware, that they could challenge the permits through judicial review but chose not to. That legal avenue should have been pursued instead of blockading the road and then challenging the permits in this setting. The appeal was therefore dismissed.

July 6, 2011
Link to Decision

Sam Golder