ARE TREATY SOCIETIES ABOVE THE LAW AND CAN THEY CONTINUE ILLEGALLY?
In a most bizarre ruling on a Court application regarding the Gitxsan Nation conflict, the presiding Judge determined the best decision was no decision at all. One of the most pressing determining factors appears to be the debt owed to the Provincial and Federal Governments. Had Judge McEwan made the obvious and factually correct determination, the $20 million delivered to an illegally operating Society would be lost. Judge McEwan couldn’t be more blunt on this point about the pressure he was under.
“The respondents, Treaty Commission, the Province of British Columbia and Canada have all cautioned that the Court must bear their interests in mind.”
The BC Treaty Commission, along with the Province of BC and the Federal Government of Canada, have delivered these funds, approximately $20 million to an organization called the Gitxsan Treaty Society (GTS). It has been determined by the Court and accepted by the GTS itself, the Society was not conducting itself properly and in fact did not meet the requirements of the Society Act. This determination goes back as far as 1994 and continued to be improper even after an illegitimate revision of the bylaws of the Society in 2002. It is clear to all participating in the hearing the GTS has never functioned within the proper legal framework of the BC Societies Act; hence it has been determined to be illegally operating.
The reason the hearing took place at all was due to an ongoing legal battle between the GTS and Spookw. Spookw is the name of a Hereditary Chief of the Gitxsan Nation much the same as was Delgamuukw, which became famous after the Appellate Court of the Supreme Court of Canada ruled in favour of the Gitxsan and Wet’suwet’en against the BC Government. This ruling determined the Gitxsan Nation still owned their territory and had a higher authority over their land than did the BC Government.
Spookw represents numerous Hereditary and High Chiefs as well as numerous Band Councils of the Gitxsan. The basis of the ongoing law suit, which began in 2008, is the legitimacy of the GTS. Spookw claims the GTS does not represent the Gitxsan and should be shut down.
The GTS decided to attempt to thwart the case by bringing an application of their own to have the case thrown out, as Judge McEwan states;
 […] In the course of that proceeding the GTS along with the defendants, British Columbia and the Attorney General of Canada, brought applications to strike out the claim on the basis that the plaintiffs had no standing because they were not members of the society.
This action by the GTS exposed the illegal operation of the Society. When examined it was determined the Society had no members, no lists, no elections, no annual general meetings, nothing which met the requirements of being a duly registered Society in British Columbia. This was determined on the first day of the hearing, January 10, 2012, and the Judge immediately stopped the hearing stating he did not wish to hear arguments from a law firm representing an illegal society.
Since then the lawyers and representatives of all sides have been presenting arguments for and against allowing the Society to become legitimate. The Spookw side has essentially claimed, enough is enough, the proof is in, the GTS is not and never has been legal or a true representative body of the Gitxsan Nation. The GTS requested the Judge allow them to use Section 85 of the Society Act to correct the “irregularities”. The Judge determined he couldn’t use this section as the current condition of the Society and the unknown membership was far too difficult to reconcile to make a ruling, as was suggested by Spookw. He stated if he did make such a ruling the GTS would come back with the same application.
 […]it would be to appear to legitimize the current leadership of the society in the context of the ongoing Spookw litigation. In that litigation the GTS would then presumably renew its application to strike the Spookw litigation on the basis that they have no standing.”
The BC Government, the Federal Government and the BC Treaty Commission all stated they didn’t care about anything except the money they gave the GTS to spend on settling land claims issues, treaty negotiations and deals signed by the GTS. Here are extracts direct from the ruling; (high lighting added)
 […] The interests of the Crowns must also be considered as a consequence of loans advanced to the GTS through the B.C. Treaty process over the years.
 The Treaty Commission takes no position except to observe that it wishes the Court to ensure that any orders or reasons for judgment it issues will not affect the validity of or otherwise affect any contracts entered into by the petitioner prior to any such decision, and in particular, on account of the provision of the current GTS bylaws regarding the appointment of directors.
 The Province of British Columbia takes the position that the Court’s consideration of the petitioner’s application should be guided by the vital importance of the Treaty process and the need for a legal, legitimate and representative body capable of speaking for the Gitxsan. The Province expressed the view that the proceeding should not affect the validity of any past agreements entered into between the GTS and other parties in the Treaty process. It submits that otherwise it takes no position.
 Canada does not take any position regarding the means by which the Court fashions a remedy under s. 85 of the Act in relation to the existing bylaws of the GTS, the composition of the GTS membership or the appointment of GTS directors. It does, however, remind the Court that it is a creditor of the GTS, and that any order should not prejudice Canada’s interest as a creditor, and should not affect the status of any past acts or obligations on the part of the GTS, including funding contracts to support Treaty negotiations.
 The respondents, Treaty Commission, the Province of British Columbia and Canada have all cautioned that the Court must bear their interests in mind.
In regards to the original court case that the GTS was attempting to have thrown out, claiming the Spoowk litigants had no standing as they were not members; the claim that had a GTS lawyer state, ‘Well we sure shot ourselves in the foot with that one didn’t we.’
; the Judge summarized it this way;
 […] “The essence of these detailed concerns is a complaint that the GTS has become unrepresentative of the people it purports to represent in the Treaty process. The essence of the Spookw action (the proceeding within which the defects in the bylaws came to light) is a claim that the GTS be wound up on grounds of oppression and undue prejudice.”
The facts of the case are clear. The GTS has never operated legally and both levels of Government with the BCTC have negligently provided funds ($20,000,000) to this illegally operating society. If the Judge declared it could not be ‘reconstituted’ these funds would then be lost to the governments and their only recourse might be to go after the purported directors personally. Without a membership, as was made clear, the Society cannot hold a meeting of members to correct the problems.
Judge McEwan glossed over his only real option, the one requested by the Spookw legal representation and the foundation of the entire lawsuit started in 2008.
 […] They submit that the Court should dismiss the petition and direct the registrar to consider the petitioner’s registration under paragraphs 91(a) and (b) of the Act to make interim directions regarding the interim management of the society’s operations until the proceeding is decided. For reasons I do not consider it necessary to address, I do not consider s. 91(a) and (b) pertinent in this case.
Section 91 is the proper legal avenue available when a Society has been operating illegally; accepting monies under false pretences and continuing to function when the illegality has been exposed not just in public but also before the Court. Direct from the act;Cancellation by registrar91 The registrar may cancel the registration of a society under this Part if
(a) the registrar considers that continued registration is no longer in the public interest,
(b) the society ceases to have 50 members in good standing,
Although the Judge has been directed by both levels of Government and the BCTC to make an order, a ruling, which protects their specific interests, it is not a ruling which considers the interests of the Gitxsan Nation as a whole. The foundation of the entire Court case has been proven and accepted by the GTS; they were not and are not a legal Society. This was virtually the original claim of the Spookw litigants; they do not represent the Gitxsan.
The ruling therefore concludes with a most bizarre statement.
 […] Continuance of the GTS is also the best means to protect the interests of the Treaty Commission and the Government respondents as well.
This statement means the Judge considers the illegal Society should continue. He offers nothing concrete except the Gitxsan should find a way to resolve this on their own stating;
 In the result I will not order the relief sought by the GTS, nor will I endorse the result favoured by the Spookw plaintiffs. Rather, I adjourn this petition on the basis that I expect a better model for open participation and membership to be developed.
The only party who was served by this decision was the Government participants, their interests were protected as the Judge did not state the Society should be struck from the registrar nor did he claim they were legal to continue as they were.
His final direction was simply to suggest a way to resolve the issues internally. Not suggesting the GTS or Spookw has the solution, but stating the Gitxsan as a community should find a solution together.
 The appropriate way for the parties to address these controversies is through a process that permits all the Gitxsan an opportunity to be heard if they wish to be heard. I think it inappropriate that the Court be invited to select a particular group or class to be members of a society that purports to represent a whole people. On the other hand, I consider it important that the GTS continue, provided the membership is opened to all who wish to participate. Whether the Gitxsan wish to participate in the process, or to decline to do so, or to conduct an examination of what has been done so far on their behalf, or to change direction, can only reasonably take place in a forum where the definitive expression of those views may be heard and acted upon through a transparent process of election or appointment that has the confidence of the people as a whole, or of those who express enough interest to participate.
 Refusal to participate in an open process might well give rise to questions of standing on the part of those who choose to continue to complain from outside.
 In my view the issues in the Spookw litigation are affected by the governance model adopted by the GTS. The question of standing would largely be addressed by a transparent membership process. Those who are unhappy with the current model would have an opportunity to effect the kind of changes they seek including the commissioning of audits of the governance of the society of the GTS to date, if they were able to persuade enough members and directors of their views.
Today the Gitxsan Unity Movement, an organization developed after Elmer Derrick, through the GTS, signed a deal with Enbridge Northern Gateway, stands alone as the only party not directly attached or involved in a divisive legal battle. They have been guarding the GTS offices for 116 days.
This may be the group uniquely positioned to put into practice the directions of Judge McEwan. One of the expressed concerns of many Gitxsan is the security of the GTS offices. Only a fully independent entity should be able to now access these offices to examine and determine what the Judge states as “the commissioning of audits”. He uses this in reference to the governance of the Society but the concern of the Gitxsan is more on the dispersion of the $20,000,000 by what has now already been determined to be an illegal organization. A full forensic audit has been suggested as the first consideration prior to any attempt to develop a new model for governance or a new Society. Full transcript of decision attached below