On December 5, 2025, the British Columbia Court of Appeal released its decision in Gitxaala v. British Columbia (Chief Gold Commissioner), which overturned, in part, the 2023 decision from the B.C. Supreme Court (which we discussed in a 2023 Insight).
The Gitxaala case is a challenge to B.C.’s mineral tenure system based on the constitutional duty to consult, the provincial Declaration on the Rights of Indigenous Peoples Act (the Declaration Act), and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
The appeal focused on the legal effect of UNDRIP and the Declaration Act. The Court of Appeal allowed the appeal, ruling that UNDRIP and the Declaration Act have greater force in our province than the lower court had determined, while affirming that the full implementation of UNDRIP contemplated by the Declaration Act will be a long-term process.
The long-term consequences of the decision are difficult to predict. In response, the Premier has already signalled his government’s intent to amend the Declaration Act. In the meantime, it is clear that UNDRIP will play a more significant role in our legal system.
Background
UNDRIP is an international declaration of the individual and collective rights of the world’s Indigenous peoples, consisting of a lengthy preamble and 46 articles. UNDRIP was adopted by the UN’s General Assembly in 2007. Canada initially voted against its adoption (one of only four countries to do so) but in 2016, changed its position and expressed its unqualified endorsement.
The Declaration Act was enacted in November 2019 with the unanimous support of all members of the Legislative Assembly. The statute is brief, and the key provisions for the Gitxaala case are sections 2 and 3:
- Section 2 provides that the purposes of the act include (a) to affirm the application of UNDRIP to the laws of British Columbia, and (b) to contribute to the implementation of UNDRIP.
- Section 3 provides that in “consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent” with UNDRIP.
The passage of the Declaration Act made B.C. the first Canadian jurisdiction to enact a statute incorporating UNDRIP into domestic law. In 2021, the federal government followed suit enacting the substantially similar United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (the Federal Declaration Act).
UNDRIP, the Declaration Act, and the Federal Declaration Act have attracted extensive judicial, academic, and political commentary over the years. The Gitxaala case marked the first opportunity for the B.C. courts to rule directly on the legal effect of the Declaration Act. As we set out in our 2023 Insight, the B.C. Supreme Court concluded that UNDRIP is a non-binding international instrument, the Declaration Act did not implement UNDRIP into domestic law, and the question of whether B.C. laws are consistent with UNDRIP for the purpose of section 3 of the Declaration Act was not a matter for the courts (i.e. not justiciable). (The Court also concluded that the government’s mineral tenure system breached the constitutional duty to consult; this conclusion was not appealed and is not discussed in this blog, but it is worth noting that it led to significant changes in the mineral tenure system that came into effect in March 2025.)
After the B.C. Supreme Court’s decision in Gitxaala, the Supreme Court of Canada (SCC) released reasons in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (the First Nations Families Act Reference). There, the SCC stated that UNDRIP has been “incorporated into the country’s positive law” by the Federal Declaration Act. This proved to be of great consequence for the Gitxaala case.
The Court of Appeal’s Decision
The Court of Appeal issued a split decision. The majority’s reasons are long, detailed, and nuanced. Below are some key conclusions.
The nature of UNDRIP: The majority explained that UNDRIP does not create or impose new international legal rights or obligations but rather is a statement of internationally recognized human rights and standards. Its articles are an aggregation of binding rights and obligations (specific legal duties); general principles (guiding values); minimum standards (baseline expectations); and aspirations (goals for the future). As a result, UNDRIP’s articles cannot be treated in a uniform manner.
The Interpretation Act: Section 8.1(3) provides that every provincial act and regulation must be construed as being consistent with UNDRIP, unless a contrary intention appears. The majority ruled that “s. 8.1(3) requires that British Columbia’s laws be interpreted to conform with the binding international rights, obligations and principles recognized in UNDRIP and to generally harmonize with the international standards and extended rules that it articulates, wherever possible” .
The common law effect of UNDRIP: The common law presumption of conformity requires domestic law to be construed consistently with international law and comity wherever possible. Based on the widespread international support for UNDRIP, the federal government’s unqualified endorsement for it, and the Federal Declaration Act, the majority concluded that UNDRIP “should be applied as a weighty source for the interpretation of Canadian law in accordance with the presumption of conformity, with due regard for the extent to which a relevant article expresses a binding international rule or general principle, minimum standard, or aspiration” . This functions in a similar manner to the statutory presumption created by section 8.1(3) of the Interpretation Act.
Effect of the Declaration Act: The majority reached several significant conclusions in this regard:
- Section 2(a), by affirming UNDRIP’s domestic application, “incorporates (i.e., integrates) UNDRIP in its entirety into British Columbia positive law”.
- Section 2(a) also amounts to a binding Crown promise that engages the honour of the Crown and requires the Crown to act as though UNDRIP applies to B.C. laws, including the common law. This includes the constitutional duty to consult in respect of section 35 rights, which is a common law concept. Further, this means that Indigenous peoples may raise both their section 35 rights and their UNDRIP rights in consultation with the Crown.
- Section 3 imposes a positive obligation on the Crown, in consultation and cooperation with Indigenous peoples, to take all steps necessary to make certain that British Columbia laws clearly conform with UNDRIP. Further, the various questions raised by section 3 may be justiciable, and the specific question of consistency between UNDRIP and the mineral tenure system raised in Gitxaala is justiciable.
In the result, the majority issued a declaration that the government’s conduct in establishing the now-replaced mineral tenure system was inconsistent with article 32(2) of UNDRIP.
In dissent, Justice Riley agreed with the majority’s analysis and conclusion on the status of UNDRIP under British Columbia law but disagreed on the legal effect of the Declaration Act and the court’s associated role. In his view, the Declaration Act establishes a framework for legislative reconciliation by the executive and legislative branches of government, and the court should not insert itself into this law reform process.
What Now and What’s Next?
While the Court of Appeal’s conclusions are significant, the long-term implications are difficult to predict. It would not be surprising if this case goes to the Supreme Court of Canada, but the legislature may amend the Declaration Act before the case even gets there. News articles about the Court of Appeal decision report that Premier Eby has said the government will be pursuing amendments to the act, but the scope and timing of those amendments are unclear.
In the meantime, the Court of Appeal’s decision is the law and UNDRIP will play a more significant role in our legal system. Though it has not been fully implemented, UNDRIP will inform the interpretation of our statutes and our common law; it will be a measuring stick for Crown conduct; and its implementation under section 3 of the Declaration Act may be subject to judicial oversight. At a practical level, this means that UNDRIP will get more attention in consultation, decision-making, law reform, and litigation.