Overview
On December 5, 2025, the British Columbia Court of Appeal (Court of Appeal) issued its decision in Gitxaala v. British Columbia (Chief Gold Commissioner), overturning in part the decision of the Supreme Court of British Columbia from January 6, 2023.
The issues on appeal were the interpretation and legal effect of B.C.’s Declaration on the Rights of Indigenous Peoples Act, S.B.C. 2019, c. 44 (Declaration Act). Passed in 2019, the Declaration Act incorporates the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
The B.C. Supreme Court found B.C.’s mineral tenure system breached the Crown’s duty to consult under section 35 of the Constitution Act, 1982, but held that the Declaration Act did not implement UNDRIP into B.C. law and did not create justiciable rights enforceable by the courts. See our previous Blakes Bulletin on the 2023 lower court decision: Court Rules British Columbia Must Modernize Mineral Claim Registration System to Allow for Consultation With Indigenous Nations.
The Court of Appeal overturned the chambers judge, finding that UNDRIP has been incorporated into the laws of B.C. through the Declaration Act. The Court of Appeal issued a declaration that the previous “free entry” mineral tenure regime was inconsistent with article 32(2) of UNDRIP.
While these findings are significant, the decision does not have any immediate impact on existing mineral rights, nor does it displace the Mineral Claims Consultation Framework adopted by B.C. in response to the decision of the chambers judge in 2023. The decision will, however, open the door to future court challenges on the basis of UNDRIP and the Declaration Act, unless B.C. changes the Declaration Act (which the Premier has indicated is under consideration).
Analysis
The main focus of the appeal was on the chambers judge’s dismissal of a request for a declaration that the then-existing mineral claims regime was inconsistent with UNDRIP. The Court of Appeal considered whether the claim is “justiciable,” meaning whether there is a role for the courts in adjudicating whether legislation is consistent with UNDRIP as a result of the Declaration Act.
Justice Dickson, writing for the majority (two of the three judges who heard the appeal), held that the Declaration Act incorporates UNDRIP into B.C. law with immediate effect. The Court concluded this interpretation is consistent with recent decisions of the Supreme Court of Canada in First Nations Families Act Reference and Dickson v. Vuntut Gwitchin First Nation, both of which were delivered after the decision of the chambers judge in Gitxaala and considered the federal equivalent of the Declaration Act.
The incorporation of UNDRIP into B.C. law was not expected to create new legal rights when the Declaration Act was adopted. However, the majority found that section 3 of the Declaration Act (Measures to align laws with Declaration) imposes a statutory duty on the Crown to consult and cooperate to align the laws of B.C. with UNDRIP and that section 8.1(3) of the B.C. Interpretation Act imposes a rebuttable presumption of consistency between B.C. statutes and UNDRIP.
Justice Dickson set out potential avenues by which she envisioned a question in relation to section 3 of the Declaration Act could come before the Court:
- Whether there is an inconsistency between a B.C. law and UNDRIP (as in this case)
- Whether the type of inconsistency in issue must be addressed by the Crown taking measures
- What measures should be taken
- The adequacy of the consultation process
- The meaning or extent of “cooperation”
The majority found that the question of consistency between B.C. laws and UNDRIP is justiciable. The Court of Appeal went on to issue a declaration that the Chief Gold Commissioner’s establishment of an online system allowing for automatic registration of mineral claims without consulting Indigenous peoples is inconsistent with article 32(2) of UNDRIP. That article refers to “FPIC,” as follows:
“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.”
Importantly, the majority did not analyze whether article 32(2) requires something more or different than the duty to consult under section 35 of the Constitution Act, 1982. The majority also did not analyze the parameters of article 32(2) or its application in the context of asserted, rather than proven, rights. The Court of Appeal simply found that the lack of any opportunity for consultation prior to the registration of mineral tenures was inconsistent with article 32(2).
As noted above, the Mineral Claims Consultation Framework has already been adopted by B.C. in response to the decision of the chambers judge in 2023. There is nothing in the decision to suggest that the Mineral Claims Consultation Framework is not consistent with UNDRIP.
Takeaways
When the Declaration Act was first enacted, there was extensive debate over multiple days in the Legislature as to how the Act would affect B.C. law. Arguably the Court of Appeal decision goes further than the stated intentions of the legislators of the day. Moreover, the Court of Appeal decision invites further litigation challenges to other B.C. legislation on the basis that it is inconsistent with UNDRIP. In that sense, UNDRIP would acquire quasi-constitutional status (such that any inconsistency with UNDRIP results in the legislation being at risk of invalidation by the court). Left unanswered by the Court of Appeal are the implications of other provisions in UNDRIP beyond article 32(2).
While the Court of Appeal decision is specific to B.C., this is one of several cases addressing the applicability of UNDRIP, both provincially and federally. Two of the decisions cited by the Court of Appeal, one from the Superior Court of Quebec (R. v. Montour) and one from the Federal Court (Kebaowek First Nation v. Canadian Nuclear Laboratories), are currently under appeal. Depending on how legislatures react, one or more of these cases may go to the Supreme Court of Canada.
B.C. Premier David Eby has already signalled that the government may amend the Declaration Act to limit the role of the courts.
If the Federal Court of Appeal comes to a similar conclusion in Kebaowek as the Court of Appeal has done in Gitxaala, there could be calls for the federal government to amend its UNDRIP legislation.
For more information, please contact the authors or any other member of our Indigenous group.
