The plaintiffs in this action, which included six hereditary chiefs and four Gitxsan bands, commenced an action against the Gitxsan Treaty Society (the “GTS”), the Governments of Canada and British Columbia and the British Columbia Treaty Commission (the “Commission”) in relation to the funding of treaty negotiation. The Commission brought an application to dismiss the plaintiff’s claim against it for failing to disclose a reasonable cause of action.

The Commission monitors and facilitates treaty negotiations in British Columbia and is responsible for the allocation of funds to First Nations involved in treaty negotiations. The Commission must abide by certain statutory criteria in the allocation of funds including the criterion that any request for funds by a First Nation be supported by its constituents. The plaintiffs named the Commission in their action on the basis that it had negligently approved and advanced funds to the GTS as representing various Gitxsan bands and individuals despite opposition to GTS’ authority to do so.

The plaintiffs alleged that the Commission breached its duty of care to the plaintiffs to ensure that so called GTS negotiators had a mandate from the Gitxsan people to negotiate on their behalf. While the Court found that there was sufficient foreseeable to harm to the plaintiffs in the event that the Commission acted negligently, it did not find that the relationship between the plaintiffs and the Commission was sufficiently close to meet the proximity requirement necessary to ground a duty of care. Despite the fact that the Commission received direct complaints from individuals and hereditary chiefs about GTS’ failure to represent Gitxsan interests, the Court held that the Commission is required to respect the self-governance of First Nations and that it does not have a duty to involve itself in the governance of a First Nation by acting to protect a minority interest within that First Nation. The Court went on to state that the Commission “is intended to be an impartial and arms-length body that cannot be involved in the internal structure and processes of the Gitxsan Nation.”

The Court also held that aside from failing to meet the proximity requirement, policy concerns prevented the imposition of a duty of care on the Commission. Namely, the Court held that the imposition of such a duty of care would amount to indeterminate liability as there are 60 First Nations and 110 bands currently involved in the treaty process and that this process covers some 200,000 First Nations individuals.

As a result, the plaintiff’s action against the Commission was dismissed and costs were awarded to the Commission.

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