British Columbia Court of Appeal finds UNDRIP Applicable to Law in BC

In reasons for judgment released on December 5, 2025, the British Columbia Court of Appeal has made its first pronouncement on the application of the Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c. 44 (DRIPA) to the laws of British Columbia. A two-judge majority of the Court of Appeal in Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 made several notable findings, but the key takeaways are as follows: 

(1) DRIPA incorporates the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into the domestic law of British Columbia, as an interpretive aid; 

(2) the Crown has a statutory mandate under DRIPA to ensure that laws in British Columbia are consistent with UNDRIP; and 

(3) in certain circumstances, courts can determine whether a law of British Columbia is consistent with UNDRIP. 

While a court will not invalidate or strike down a law based on inconsistency with UNDRIP – which is an international human rights instrument first adopted by the United Nations General Assembly – it can issue a declaration stating the inconsistency. Such a declaration would form a basis for informing the Crown’s statutory obligation to consult in respect of the consistency of its laws. 

Gitxaala arose from a judicial review of the Province’s decision to operate an automated online registry system in respect of mineral rights. Under this system, “free miners” are able to register claims to mineral rights on Crown land prior to any constitutional consultation taking place between the Crown and an affected First Nation. The two First Nations at issue, Gitxaala and Ehattesaht, argued both that the Crown breached the duty to consult by maintaining these decisions, and that the Mineral Tenure Act was inconsistent with UNDRIP. In the Supreme Court of British Columbia, the Nations were successful on the first issue, but not the second. On the UNDRIP issue, the BC Supreme Court found that nothing in DRIPA indicated that a court should adjudicate the issue of consistency between UNDRIP and a law of British Columbia. 

A majority of the Court of Appeal disagreed with this conclusion, holding that DRIPA – and in particular sections 2 and 3 – imposes a positive obligation on the Crown to “take all measures necessary” to ensure that all the laws of British Columbia are consistent with UNDRIP. Compliance with this obligation may require legislative, executive, or administrative action. In the context of the case, the Court of Appeal found that the Crown could potentially comply with this duty either through the tabling of amendments to the Mineral Tenure Act or through policy changes regarding the “free miner” system. 

The majority also confirmed that section 8.1 of the Interpretation Act, which requires that all laws of British Columbia be interpreted in a manner that is consistent with UNDRIP, has significant effects. This provision means that all laws will be construed as consistent with UNDRIP unless they show a contrary intention. Applying this principle, the majority found that the Mineral Tenure Act was inconsistent with article 32(2) of UNDRIP, which states: 

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

Notably, the Province did not advance the position on appeal that the Mineral Tenure Act was consistent with UNDRIP and instead relied wholly on the position that relief of the kind sought by the Gitxaala and Ehattesaht was unavailable on a reading of DRIPA. Accordingly, the Court did not engage in a detailed consideration of Article 32(2) or other articles of UNDRIP.

While Gitxaala arose in relation to the effects of a provincial statue on Crown land, the effects of the decision are broader than this and will certainly be felt by local governments in British Columbia. While local governments are not bound by section 3 of DRIPA, because they are not the “government” and therefore do not have to “take all measures necessary” to align their laws with UNDRIP, a First Nation wishing to challenge a local government decision may now argue that the decision is incompatible with an UNDRIP-consistent interpretation of the statutory provision under which it is made, including for reasons of the local government’s failure to properly consult the First Nation in accordance with UNDRIP before making it.  Alternatively, the First Nation may seek a declaration that the statutory provision is simply inconsistent with UNDRIP and must therefore be dealt with by the Legislature.  How a court would adjudicate such challenges would be specific to the applicable facts of the case and the articles of UNDRIP that are engaged. 

This bulletin has not reviewed the reasons of the dissenting judge, but we simply note that the presence of a dissent in our Court of Appeal (which is rare) indicates the controversy attached to this matter. Also indicative of this controversy, as well as the far-reaching consequences of the ruling, are statements made by both the Premier and the leader of the opposition. Premier Eby, who introduced the legislation as Attorney General in 2018, has indicated that the government will review the decision and “if necessary, amend the Declaration Act”.  Meanwhile, the new Conservative leader, Trevor Halford, has stated that the BC Conservatives will “work co-operatively” to repeal the legislation completely. 

Reece Harding and Nick Falzon 

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