The British Columbia government didn’t properly consult with a northern First Nation community about forestry activity and then failed to warn a logging contractor about an imminent blockade, according to a court judgment that orders the province to pay the company $1.75-million.
One lawyer involved in the case says the judgment, which follows several years of legal proceedings that included a trip to the Supreme Court of Canada, should serve as yet another warning to the provincial government about the need to meaningfully consult with First Nations over resource development.
Moulton Contracting Ltd. sued the government, as well as the Fort Nelson First Nation and several band members, over a nonviolent blockade that began in October, 2006, and stretched on until early 2007.
George Behn and members of his family launched the blockade after Moulton Contracting obtained timber sales licences from the provincial government. The licences covered an area used by the family for trapping under their treaty rights. Moulton planned to sell the timber to lumber giant Canfor.
The court heard the Behn family had not been informed about the potential sale of timber rights in the area. When the provincial government agency that oversees timber licences informed Mr. Behn that he would have to remove his traps, he immediately voiced his opposition.
In late July, 2006, Mr. Behn spoke to an official with B.C. Timber Sales and indicated he would be “going out to stop” the logging activity, the court heard.
B.C. Timber Sales didn’t pass along those warnings to Moulton, nor did the agency tell the company about a letter it received from a band official that said trappers such as Mr. Behn were becoming increasingly frustrated with what they considered to be a lack of consultation.
Mr. Behn, who was 82 at the time, set up a folding chair on an access road leading into the licence area in the first week of October. He and members of his family spent the next three months peacefully maintaining the blockade, largely preventing work from continuing at the site.
As the blockade dragged on, Moulton was left unable to sell timber, and its suppliers repossessed much of the company’s logging equipment. The licences later expired and the area hasn’t been logged since.
A B.C. Supreme Court judge dismissed Moulton’s claims against the Behn family and the First Nation, but concluded B.C. Timber Sales had a responsibility to warn Moulton about the possibility of a disruptive blockade.
“BCTS [B.C. Timber Sales] kept the plaintiff in the dark, and did so at a critical point in time,” Judge Anthony Saunders wrote in a decision posted to the court’s website last week.
“I find that the province was obliged, as a matter of contract, to advise Moulton Contracting of Mr. Behn’s threat, in a timely manner, and that it failed to do so. … I further find that, had Moulton Contracting been advised of Mr. Behn’s threat, it would not have pursued logging under the TSLs [timber sales licences].”
Judge Saunders also concluded the province failed to meaningfully consult with the Fort Nelson First Nation about the proposed logging activity, particularly since the band was not equipped to properly assess such projects and their potential impact.
On that issue, the judge wrote: “I cannot find that the province consulted with [Fort Nelson First Nation] in a manner sufficient to maintain the honour of the Crown.”
Judge Saunders said the Behn family wasn’t liable because the blockade wasn’t technically illegal. Since the blockade occurred on an unregulated roadway on Crown land, the blockade didn’t amount to the criminal definition of mischief, the judge said.
Mr. Behn argued the province had an obligation to consult with him and his family directly, rather than just the Fort Nelson First Nation band council, but the Supreme Court of Canada ruled against Mr. Behn on that issue in May, 2013.
The judge also said there was no evidence the band council specifically endorsed Mr. Behn’s blockade plan, though councillors were aware of what he was up to.
Mr. Behn’s lawyer, Robert Janes, said the family is pleased that the judgment “exonorates them from any wrongdoing” and they’re eager to put the case behind them.
Mr. Janes said the court’s ruling should send a strong message to the provincial government that it must live up to its responsibility to consult with First Nations.
“In the broader picture, what I think is that this really does put a great deal more pressure on the province not just to say, ‘We’re going to leave it to companies and First Nations to sort it out on the ground,’” Mr. Janes said in an interview Monday. “When the province doesn’t deal with these things, it runs a real risk of creating these conflicts.”
A spokesman for the provincial Forests Ministry declined to comment on the ruling.
“As it is fairly recent, legal counsel are still reviewing the implications of the decision and have yet to determine what the next steps will be,” Brennan Clarke wrote in an e-mail.
The lawyer representing Moulton Contracting could not be reached for comment, nor could the chief of the Fort Nelson First Nation.
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