Patrick Duffy and Christian Brands -
In recent years, proponents in the natural resource industry have become more comfortable with fulfilling the duty to consult with Aboriginal communities and Aboriginal and treaty rights. However, one of the issues that continues to create uncertainty is whether treaty rights reside with First Nation members individually or collectively, and, if collectively, whether individuals can assert that these rights have been infringed without authorization of the collective. In the recent decision of Behn v Moultan Contracting Ltd, the Supreme Court of Canada appears to have further muddied the waters.
In October 2006, members of the Behn family, a community of the Fort Nelson First Nation (FNFN), camped along a lumber road in northern British Columbia to prevent Moulin Contracting Ltd. (Moulin) from harvesting wood on FNFN territory. Moulin had been granted licenses by the British Columbia Ministry of Forestry (MOF) earlier that year to carry out wood harvesting operations on tracts of land on FNFN territory. These licenses were only granted once the MOF had invited members of the FNFN, which is a party to Treaty No. 8 of 1899, to comment on the proposed forest development plan. The plan was adjusted in response to several of the FNFN’s concerns.Continue Reading...