The land is located in Fort Nelson First Nation territory, of which all but one appellant is a member. The logging company, Moulton Contracting, brought action against the Behns, the FNFN, its chief and the Crown, claiming for damages. In their defence, they claimed the company’s licenses were void as they violated treaty rights by not consulting.
In the appeal, the court was asked to consider whether an individual member or group of members of an Aboriginal community can raise a breach of Aboriginal and treaty rights as a defence to a tort action. However, the court found that only the community can invoke those rights, and not individual members. Therefore, the Behn family was not authorized to act on behalf of the First Nation to contest the legality of the licences.
Their appeal was dismissed, finding the appeal an abuse of process for the Behns to challenge the validity of the licenses now that they are being sued by Moulton after they didn’t legal action when the licenses were first issued even though they objected to their validity at the time.