On January 12, 2017, in reasons reported as Spookw v. Gitxsan Treaty Society, 2017 BCCA 16, the British Columbia Court of Appeal dismissed an appeal brought by a group of Gitxsan Hereditary Chiefs, Indian Bands, and the Gitxsan Local Services Society. This group of Gitxsan (the "appellants") alleged that the Gitxsan Treaty Society ("GTS"), the body created to conduct treaty negotiations with the Crown on behalf of the Gitxsan people, does not represent the whole of the Gitxsan people and has not acted in the best interest of the Gitxsan people. The appellants also alleged that the Crown breached fiduciary obligations it owed to the Gitxsan people and the honour of the Crown by dealing with the GTS.

At the BC Supreme Court level, the appellants had been entirely unsuccessful. The Court of Appeal also dismissed their appeal on the basis that the appellants lacked standing to advance their claim against the GTS, and there had not been any breach on the part of the Crown.

Standing

The Court of Appeal agreed with the judge below that the appellants lacked standing. There were three main factors that led to the decision to deny the appellants standing:

  • The appellant Hereditary Chiefs "could and should" have become members of the GTS. It was open to the appellant Hereditary Chiefs to become members of the GTS which would have allowed them to influence the affairs of the GTS from within, including giving them standing to bring a winding-up petition.
  • The GTS does not have the power to bind the Gitxsan people. Any treaty negotiated by the GTS would require ratification by the Gitxsan nation.
  • It is not the proper role of the courts to interfere with internal First Nation governance. It is an underlying principle of the treaty process that the manner in which a First Nation organizes itself to engage in treaty negotiations is a matter of internal affairs. Granting standing to the appellants would amount to interference by the court in the internal governance of the First Nation, which is inconsistent with this principle.

Fiduciary Duty

The Court of Appeal found that no fiduciary obligation arose in the context of treaty negotiations. The treaty process contemplates that the Crown will respect the self-governance of indigenous communities. Parties to a treaty negotiation are separate and equal. Unilateral or direct control by the Crown over the positions of indigenous communities in a treaty negotiation would be contrary to the integrity of the negotiating process.

Moreover, the fact that Canada represents all Canadians in treaty negotiations precludes the Crown from placing the best interests of the appellants (and the Gitxsan) above all others in the negotiation.

Honour of the Crown

In addition to breach of a fiduciary duty, the appellants argued that that Crown had breached the honour of the Crown. The Court rejected this argument observing that the honour of the Crown is not a free-standing cause of action (relying on Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14). Although the concept of the honour of the Crown grounds other actionable obligations on the Crown, like a duty to consult (see Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73), it does not stand on its own as a basis for a claim.

Additionally, the Court observed that the honour of the Crown was not a paternalistic concept and that the Crown should respect internal processes of indigenous communities when it comes to resolving internal issues within those communities:

[85] Evidently, there are serious disputes among the Gitxsan people as to how the treaty negotiation process should proceed, if at all. …. It is not for the Crown(s) as a matter of a fiduciary duty or honour to interfere with that internal, political debate.

[86] Courts, in the context of the Treaty Process, as a general proposition, should respect how an indigenous community resolves internal issues and organizes itself to participate in the process. Similarly, the honour of the Crown is not a paternalistic concept. It does "not arise from a paternalistic desire to protect the Aboriginal peoples" … The Treaty Process contemplates that the Crown(s) will respect the self-governance of indigenous communities, which includes how it resolves what, essentially, is political disagreement.

Conclusion

The Court found that the issue at the heart of this litigation was properly characterized as an internal political dispute, that ought to be dealt with internally, within the Gitxsan nation. Neither the honour of the Crown nor any fiduciary obligation necessitates that the Crown interfere to attempt to resolve those disputes. Nor is it the proper role of the court.