The B.C. Supreme Court struck out a claim brought by a dissenting faction of the Gitxsan people for an order “winding up” the defendant Gitxsan Treaty Society. The Court held that the plaintiffs did not have standing to bring the action, and the pleadings did not disclose a reasonable claim. Further, the Crown had no obligation to intervene in a dispute taking place within the Gitxsan community. The plaintiffs’ claim in tort against the Crown was bound to fail.

The defendant Gitxsan Treaty Society is a society incorporated under the provincial Society Act. Its role is to support the Gitxsan during the treaty process.

The plaintiffs describe themselves as “Gitxsan people, members of Gitxsan Houses, Clans and Bands and communities”. They assert that the defendant Treaty Society has not acted in the best interests of the Gitxsan people. They claim that the defendant has restricted consultation and failed to provide them with information. Any treaty negotiated by the Treaty Society would affect their rights forever.

The Treaty Society is governed by the Society Act and certain provisions of the provincial Company Act. The plaintiffs relied upon the “winding up” provisions of s. 271 of the Company Act. Certain persons, including “members”, can apply to the Court for an order that a society be wound up. Subsection 271(4) of the Company Act gives an expansive meaning to the term “member” so that it includes a “beneficial owner”, and any other person who the Court determines to be a “proper person” to make the application. The Court also noted that, pursuant to s. 272 of the Company Act, the Court hearing a winding up application may also make an order pursuant to the “oppression” provisions of the Act.

The plaintiffs alleged that they are “stakeholders” in the Treaty Society and have standing to invoke the provisions of the Society Act. They claim to have been excluded from decision-making, and that the Treaty Society has abused its position.  The plaintiffs cited various grounds for a winding-up: (1) loss of substratum “in its most extreme form”; (2) lack of confidence; and (3) deadlock. In the alternative, they relied upon the oppression remedies available pursuant to s. 272.

The plaintiffs also asserted that the federal and provincial Crowns are in breach of fiduciary duty and the duty of the Honour of the Crown by continuing to conduct treaty negotiations with the Treaty Society, despite having received notice from the Hereditary Chiefs that they do not consent to being represented by the defendant. The plaintiffs referred to the “sacred political trust” dating back to the Royal Proclamation of 1763. The Honour of the Crown is at stake due to matters such as loans to the Treaty Society.

This application was made under Rule 9-5. In consequence, it must be “plain and obvious” that the pleadings disclose no reasonable cause of action before the claim will be struck.

The Court accepted the submissions of the Treaty Society that the plaintiffs do not have standing under s. 271 of the Company Act. They are not members, and do not fall within the expansive meaning of “member” in s. 271(4). Their interest in the negotiable aspects of the treaty process is, at this point, a “contingent interest in the negotiations”. The Court also held, in the alternative, that even if the plaintiffs had standing there would be no reason to wind up the Treaty Society.

Assuming all of the pleaded facts to be true, the plaintiffs have not established sufficient proximity to acquire standing under the Society Act or the Company Act. The plaintiffs have chosen not to be members of the Treaty Society, and have sought “relief from outside” through this court proceeding. The allegations fall short of a basis for finding that the Treaty Society has lost the confidence of the community as a whole. It is simply evidence of dissent. Even when applying a more generous approach to the meaning of “proper person” in s. 271(4) of the Company Act, due to the evolving nature of Aboriginal law, the plaintiffs still cannot fit within the definition. McEwen J. commented:

As matters now stand, however, the plaintiffs’ advance propositions that amount to dissenting political views they ask the court to endorse and impose, in circumstances where they have been unable (or unwilling) to carry the burden of persuasion of their point of view within the community as a whole.

The Court agreed that there is no statutory authority under the Society Act to seek relief from oppression. Section 272 of the Company Act, which is incorporated by reference into the Society Act, deals with the oppression remedy in the context of a winding up application. It is an abuse of process to bring an oppression application under the guise of a winding-up.

In regards to the tort claims against the Crowns, the Court accepted the argument of Canada that essence of the litigation is a dispute within the Gitxsan community. The treaty process involved the creation of the British Columbia Treaty Commission, an arms-length entity that is not an agent of the Crown. Canada does not stand in a fiduciary relationship with the plaintiffs in regards to the treaty process. In any event, any claim in relation to the treaty process is premature, and must await a ratification vote: Sliammon Treaty Society v. Point, 2012 BCSC 1038. The Crown is at arm’s length with the Treaty Commission, and the Treaty Commission has a duty to respect Gitxsan self-governance. The Honour of the Crown does not oblige Canada to intervene in an internal dispute:

Although the plaintiffs have attempted to characterize the activities of the [Treaty Society] as, in various ways, subversive of due process, at best the argument is that the participating Hereditary Chiefs are not doing their jobs, and are instead allowing the [Treaty Society] to lead them.

Even if this is true, it should be obvious that self-government does not guarantee good government, and that any worthy form of government will have its dissenters. The hard job of winning over hearts and minds to a minority point of view cannot, in this context, be turned over to the Canada (or British Columbia) government or the courts, without undermining the fundamental premises of self-government.

The plaintiffs’ claims were therefore dismissed against all defendants.


Scott Kerwin


Aboriginal Law