In Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 [CA Gitxaala] the Gitxaala and Ehattesaht First Nations brought a challenge to BC’s free-entry mineral tenure system under the Mineral Tenure Act, R.S.B.C. 1996, c. 292. The First Nations challenged this system because it allowed mineral claims to be registered on lands without prior consultation with affected First Nations. The First Nations contended that this “Mineral Claims Regime” was inconsistent with the Crown’s constitutional duty to consult, British Columbia’s Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 (“DRIPA”), and the rights recognized in the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). In the Court below, the Gitxaala and Ehattesaht First Nations obtained a court declaration that the Crown owed a Constitutional duty to consult under s. 35(1) of the Constitution Act, 1982 and that the duty was not met. The First Nations appealed the lower court’s refusal to consider their request for declarations that the Mineral Tenure Act is inconsistent with DRIPA and UNDRIP (CA Gitxaala at paras 6, 24, 42).
On appeal, the majority of the BC Court of Appeal held that DRIPA incorporates UNDRIP into the positive law of BC with immediate legal effect. In particular, DRIPA and the BC Interpretation Act affirm the interpretive lens through which BC laws must be viewed and the minimum standards against which they should be measured (paras 7, 142-146). Moreover, there is a statutory and common law presumption that BC laws must conform to UNDRIP, wherever possible (paras 90-92, 133). In this way, the Court of Appeal reasoned that UNDRIP is not merely aspirational; it is a “weighty source” for interpreting BC law (paras 77-78, 128-129). Whether an inconsistency arises will also depend on the extent to which a particular article of UNDRIP expresses binding international rules and principles (para 130). The Court of Appeal also found that DRIPA imposes a statutory duty on the Crown to consult and cooperate with the province’s Indigenous peoples in addressing unresolved inconsistencies between on one hand, UNDRIP rights and, on the other, the laws of BC (para 149-156).
Importantly for First Nations that do not benefit from BC legislation, the majority of the Court of Appeal also observed that UNDRIP can and should inform how the Crown’s section 35 common law duty to consult is interpreted and developed (para 163). The majority reasoned that First Nations are entitled to raise both their section 35(1) rights under the Constitution Act, 1982 and their UNDRIP rights in relation to consultation (para 163). For example, raising the common law duty to consult in respect of a proposed project does not prevent a First Nation from relying on UNDRIP article 32(2), which requires states to obtain the free, prior, and informed consent of Indigenous peoples before approving any projects affecting their lands (paras 107-108, 111, 163).
The majority of the Court of Appeal declared that UNDRIP and the Mineral Claims Regime were in fact inconsistent. In particular, the Mineral Claims Regime was inconsistent with article 32(2) of UNDRIP. While the court did not detail what article 32(2) means, it observed that the Mineral Claims Regime was inconsistent with this article because it did not provide for any consultation with Indigenous peoples prior to granting a mineral claim (paras 193-194). As a result, the Crown was required to take this inconsistency into account in meeting its consulting duties (paras 7, 200). In dissent, Justice Riley agreed with the majority that DRIPA incorporates UNDRIP into BC law, but would not have issued the declaration that the Mineral Tenure Act was inconsistent with UNDRIP.
KEY TAKEAWAY
This key finding expands the legal tools available for First Nations who seek to protect their inherent rights and hold the Crown accountable to its promises. UNDRIP, through DRIPA, has immediate legal effect on BC law and courts can determine whether BC laws, statute or otherwise, align with UNDRIP.
Where a statutory scheme is inconsistent with a right affirmed in UNDRIP, a BC First Nation may raise the inconsistency during consultation or seek a declaration before a court, including in the context of s. 35 rights claims. Recognizing that First Nations may rely on UNDRIP during consultation is significant because it can require the Crown to comply with standards and duties that s. 35 currently does not. Moving forward, this means that familiarity and meaningful engagement with UNDRIP articles is important, if not necessary. The application of this decision in other provinces will depend on whether those provinces have legislation dealing with UNDRIP.
POST-DECISION DEVELOPMENTS
BC has indicated that it will not appeal the decision. Since the decision’s release, BC Premier David Eby has remarked that the courts “seem to have some confusions” around “what was clearly intended when we introduced this [DRIPA] legislation.” While Premier Eby has not gone as far as others in calling for DRIPA’s repeal, he has confirmed that his government will seek to amend DRIPA in the spring of 2026 in order to make the governments intentions clear (see also: Waters & Simmons reporting for The Narwhal). This demonstrates the ongoing vulnerability of legislative implementation of UNDRIP and Court decisions that rely on that legislation. However, the BC Court of Appeal’s reasoning that the rights under s. 35(1) of the Constitution Act, 1982 should evolve and that UNDRIP may inform the interpretation of those rights will likely find application even where there is no legislative implementation of UNDRIP.