Unauthorized Individuals Cannot Claim Aboriginal Consultation Rights


On May 9, 2013, the Supreme Court of Canada (SCC) released its latest decision concerning the duty of the Crown to consult with Aboriginal Peoples in connection with resource development in Behn v. Moulton Contracting Ltd. The SCC confirmed that aboriginal and treaty rights are communal rights which may only be raised by representatives of the community that holds the rights, not individuals acting without community authority. Further, aboriginal individuals are not entitled to assert aboriginal or treaty rights to justify a blockade or other interference with private parties' exercise of government-issued licences or other rights to develop natural resources. First Nations and other Aboriginal Peoples who wish to challenge regulatory permits must do so in court. This is consistent with the duty of mutual good faith inherent in Crown-aboriginal relations.

Legal Backdrop and Implications

Since the SCC's 2004 decision in the case of Haida Nation v. B.C., Canadian courts have consistently upheld and developed the duty of the federal and provincial Crown to consult with Aboriginal Peoples before making any decisions that may impact claimed or existing aboriginal or treaty rights. The Behn decision answers two questions regarding the duty to consult, which have been at issue in a number of other cases: who speaks for the nation; and how and when aboriginal and treaty rights can be raised.

The first question arises from the communal nature, but individual exercise, of aboriginal and treaty rights. These rights are uniquely protected by section 35 of the Constitution Act, 1982, and belong to "aboriginal peoples". However, in most cases individuals exercise the rights, for example, by going hunting, fishing, trapping or gathering. In those circumstances, there has been some question as to who should raise the rights. While it is no longer the case that only the chief of a First Nation can do so, the Behn decision makes clear that individuals who act without authority from the nation cannot raise aboriginal or treaty rights as a means to challenge regulatory rights granted to commercial parties. This will be a relief to proponents and the Crown who have been faced with requests for consultation from unauthorized individuals and groups within a nation.

The second question, concerning how and when aboriginal rights can be raised, arises because even after a Crown decision to permit resource development, individuals within an aboriginal community may...

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