The primary issue here will be whether individual members of a First Nation can rely on a breach of the duty to consult in order to challenge administrative decisions. The individuals in question blocked a road, thereby preventing a company from exercising logging and road use rights that it had been granted.

Also implicated is the doctrine of collateral attack: rather than bringing judicial review proceedings in respect of the logging and road use permits, the individuals sought to raise the failure to consult as a defence, calling into question the validity of the decisions to grant the permits. Normally, the subject of an administrative decision is the one who will seek a collateral attack. Here, the individuals are third parties. No matter, the Court of Appeal held: in substance, the individuals were attempting to impugn the validity of the decisions, which was enough to justify a finding of an impermissible collateral attack. 

Moreover, the Supreme Court of Canada emphasized in its recent Telezone decision that pleadings in private law should not automatically be struck out because they seek to impugn the validity of government decisions. However, it reserved in motion judges the discretion to strike pleadings as an abuse of process where in substance the goal is to challenge an administrative decision otherwise than by the appropriate route of judicial review. Here, both the first instance judge and the Court of Appeal held that the individuals’ defence was an abuse of process.

It will be interesting to see what the Supreme Court makes of these technical matters, which though less high-profile than the primary issue, are nonetheless very important.