Moulton Contracting Ltd. v. Behn, 2011 BCCA 311

On July 6, 2011, the BC Court of Appeal released Reasons on an appeal from a judgment in an application to strike pleadings, brought by the plaintiff, Moulton Contracting Ltd. (Moulton). The case is a leading case on standing in Aboriginal claims and on collateral attack on government instruments, a defence which is increasingly being raised by Aboriginal groups. Moulton claims damages from the Fort Nelson First Nation (FNFN), from all members of the FNFN (in a representative claim) and from members of a family who are also members of the FNFN (the Family Defendants) for preventing Moulton from harvesting two Timber Sale Licenses (TSLs) in Northeast British Columbia. In the application, Moulton sought to strike paragraphs from the Family Defendants' Statement of Defence. These paragraphs included allegations that the Family Defendants were not liable for preventing the harvesting because the Crown failed to consult them prior to granting the TSLs, and because the TSLs infringed on their treaty rights and were therefore invalid. Moulton succeeded in its application and the Court found that the Family Defendants could not rely on a failure to consult or an infringement of a treaty right in defence to the tort claim. The Chambers Judge also struck a Third Party claim against the Province brought by the FNFN for indemnity relating to allegations of failure to consult with them on the grant of the TSLs. Fasken Martineau’s Chuck Willms was counsel to Moulton Contracting Ltd. Moulton Contracting Ltd. v. Behn, 2011 BCCA 311 Moulton Contracting Ltd. v. Fort Nelson First Nation, 2011 BCCA 312