I. Summary
On December 5, 2025, the British Columbia Court of Appeal released its reasons in Gitxaała v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430.
In this case, Gitxaała and Ehattesaht First Nations challenge BC’s mineral tenure system under the Mineral Tenure Act[1](the “Mineral Claims Regime”). The First Nations posit that the operation of the automated online registry system allowing “free miners” to register claims to mineral rights on Crown land without consulting affected First Nations breaches the duty to consult, the honour of the Crown, s. 3 of British Columbia’s Declaration on the Rights of Indigenous Peoples Act[2] (“Declaration Act”), and the rights recognized in the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP” or “Declaration”). This case was heard at the BC Supreme Court in 2022, with the chambers judge deciding that the operation of BC’s Mineral Claims Regime breached the duty to consult, while the Declaration Act does not create justiciable rights, nor does it implement UNDRIP into the laws of BC (see 2023 BCSC 29).
In considering this decision on appeal, the majority (Justice Riley dissenting in part) allowed the appeals and overturned the decision of the BC Supreme Court, finding that the chambers judge erred in adopting an unduly narrow approach to the legal effect of the Declaration Act and UNDRIP. The majority confirmed that the Declaration Act:
- incorporates UNDRIP into the positive law of the province with immediate legal effect,
- creates a statutory duty to align provincial laws with UNDRIP through consultation and cooperation, and
- permits courts to adjudicate whether provincial laws are consistent with UNDRIP.[3]
The majority also held that the Mineral Claims Regime is inconsistent with UNDRIP and that the Crown must consider this inconsistency when discharging its duty to consult in respect of the Mineral Claims Regime.[4] Justice Riley dissented in part on the nature of the Declaration Act’s legal effect and the role of courts in implementing UNDRIP. This blog highlights the key legal findings and offers a brief analysis of what the decision means going forward.
II. Key Legal Findings
A. UNDRIP is Part of the Positive Law of British Columbia with Immediate Legal Effect
The majority affirmed that UNDRIP has been implemented into the positive law of BC with immediate legal effect, affirming the interpretive lens through which BC laws must be viewed and the minimum standards against which they are to be measured.[5] The majority confirmed that while some “steps, methods, and means” to ensure that BC laws are consistent with UNDRIP require legislative action, executive or administrative action may also be sufficient to effect consistency.[6]
The Declaration Act and the Interpretation Act together require BC’s laws to be interpreted in a way that conforms with UNDRIP.[7] The Interpretation Act is the source for the majority’s finding that a determination of whether BC’s laws are consistent with UNDRIP may require assessing the international legal status of specific Indigenous rights set out in UNDRIP. As set out further in the reasons, the majority held that UNDRIP rights do not uniformly become domestic rights and therefore:
to determine whether a proposed interpretation of an enactment is consistent with UNDRIP, depending on the issue, it may be necessary to analyse the source, nature, and reach of the relevant right, obligation, standard, or goal expressed as such in its article(s).[8]
As an example, the majority explained that determining whether a law is consistent with article 32(2) of UNDRIP [9] “may require assessment of the extent to which article 32(2) expresses binding international rules and principles.” For instance, a state duty to consult, the good faith requirement, or standards such as the free, prior, and informed consent standard.[10]
In confirming that UNDRIP has been incorporated into BC’s domestic laws, the decision highlights how legislative reconciliation is just one pathway to breathing domestic life into UNDRIP – other pathways include executive, administrative, and policy actions.[11]
B. UNDRIP Attracts the Presumption of Conformity
The majority confirmed that the presumption of conformity applies to all internationally binding instruments, regardless of whether they have been implemented domestically.[12] The presumption of conformity is a common law interpretive principle that requires domestic law to be construed consistently with international law wherever possible.[13]
The majority found that UNDRIP engages the presumption of conformity arising out of Canada’s UNDRIP obligations and solemn commitments, including as a member of the international community, to apply and implement UNDRIP in domestic law.[14] This means that UNDRIP “should be applied as a weighty source for the interpretation of Canadian law in accordance with the presumption of conformity”.[15] The majority specifically said that UNDRIP should not be treated as an optionally-applicable, “mere non-binding international instrument” due to the widespread international support for UNDRIP, Canada’s unqualified international commitment to UNDRIP’s application, the federal UNDRIP Act, and Canada’s constitutional order.[16]
Despite this, the majority also explained that the presumption of conformity “does not apply in the same way to all aspects of every Indigenous right expressed as such in UNDRIP”[17] because of the varying degree to which rights, obligations, standards, and aspirations are expressed through UNDRIP.
C. Some UNDRIP Rights are Principles of Customary International Law
The majority affirmed that UNDRIP does not create nor impose new international legal rights or obligations but instead is a statement of internationally recognized human rights and standards. While not all articles have this status, some UNDRIP articles “overlap with existing rules of treaty, custom or general principles of law of broad application”.[18] Specifically, the majority held that:
- article 3, which recognizes and affirms the inherent right of Indigenous peoples to self-determination is an international legal norm;[19]
- international rights, principles and standards related to traditional territories and resources are rooted in the inherent right to self-determination (i.e. Article 32(2) of UNDRIP);[20]
- the state’s duty to consult Indigenous peoples in connection with state action affecting their lands or territories is generally accepted as a matter of international law;[21]
- other UNDRIP articles elaborate and extend existing customary or conventional international legal rights;[22] and
- still other UNDRIP articles are either in whole or in part aspirational.[23]
Other UNDRIP articles articulate minimum standards or aspirations, in which case “general harmony” will suffice.[24] The majority did not clarify which other UNDRIP articles are “binding international rights, obligations, and principles” that Canada and BC must conform with and which are simply aspirational or minimum standards.[25]
D. The Declaration Act is a Solemn Promise that BC Must Uphold
The majority found that the Declaration Act amounts to a binding Crown promise “to act as though the existing legal rights, obligations, principles, minimum standards and goals expressed in UNDRIP in specific relation to Indigenous peoples apply to British Columbia laws, including the common law.”[26] This solemn promise also means that BC created a “reasonable expectation” that government actors will exercise their powers in accordance with the promise, take a “broad purposive approach” to interpreting the promise, and act diligently to fulfill the promise, in accordance with the honour of the Crown.[27]
E. UNDRIP Applies to the Common Law Duty to Consult
The majority referenced the seminal decision in Haida, where the Supreme Court of Canada observed that the duty to consult will develop over time under the general framework it established.[28] However, given the Crown’s solemn promises in respect of UNDRIP’s implementation, UNDRIP “can and should inform the interpretation of the common law duty to consult that arises with provincial decision-making and conduct”, as such Indigenous peoples are entitled to raise both s. 35 rights and UNDRIP rights during consultation processes.[29]
F. Courts can Decide if BC laws are Consistent with UNDRIP – and the Mineral Claims Regime is Inconsistent with UNDRIP
The majority agreed that the chambers judge erred in his justiciability analysis and confirmed that properly interpreted, the Declaration Act allows judicial oversight of whether a law is consistent with UNDRIP.[30] The consistency question “is fundamentally legal in nature, it can be adjudicated by a court on an objective legal standard, and, where disputed, is on its face justiciable.”[31]
Because the Mineral Claims Regime does not provide opportunities for consultation and cooperation before granting a mineral claim on Indigenous lands, the majority held that it is “manifestly inconsistent” with UNDRIP.[32] The majority did not see a need to engage in further analysis about Art. 32(2) of UNDRIP in order to make this finding of inconsistency, however acknowledged that in other circumstances, determining inconsistency may require further analysis of specific articles.[33]
G. Justice Riley’s Dissenting Reasons on the Role of the Courts in Implementing UNDRIP
While Justice Riley agreed that the court below erred in holding that the Declaration Act does not implement UNDRIP into BC law – in other words, that the Declaration Act incorporates UNDRIP into the positive law of BC with immediate effect – Justice Riley disagreed about the nature of the Declaration Act’s legal effect and the role of the courts in “achieving its aims.”[34] Justice Riley’s view is that the Declaration Act does not call upon the courts to adjudicate claims of inconsistency between BC’s laws and UNDRIP because this would take courts beyond their “proper role in our constitutional democracy.”[35] Justice Riley said that the court did not need to go further than declaring that the Crown has a s. 35 duty to consult in order to ensure the government lives up to its responsibility to take all necessary measures to ensure the Mineral Claims Regime is consistent with UNDRIP.[36]
III. What does this decision mean?
This case is an important decision for the domestic recognition of Indigenous rights – however, political statements from BC officials are concerning as they indicate an intent to legislatively roll back the hard-fought gains on UNDRIP’s application to domestic law.
BC has indicated that it will not appeal the decision and instead amend the Declaration Act to address what it says will be “further and endless litigation” and “less certainty” on UNDRIP. However, the government’s actions may prove inconsistent with the Court of Appeal’s decision – and UNDRIP itself. The majority confirmed that there is nothing in the Declaration Act that would preclude courts from resolving threshold disputes on inconsistencies, and the government requires free, prior, and informed consent from Indigenous peoples before adopting and implementing legislative measures that may affect them. We do not know yet how Premier Eby intends to amend the Declaration Act and whether his government will be able to secure the consent of Indigenous partners before doing so. Time will tell whether BC keeps its solemn promises on UNDRIP’s application.
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[1] R.S.B.C. 1996, c. 292
[2] S.B.C. 2019, c. 44
[3] Gitxaała v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 (“Gitxaała”), at para 7.
[4] Gitxaała, at para 7.
[5] Gitxaała, at para 7.
[6] Gitxaała, at para 149.
[7] Gitxaała, at para 92.
[8] Gitxaała, at para 100.
[9] Article 32(2) requires States to consult and cooperate with Indigenous peoples to obtain free, prior, and informed consent before approving projects affecting their territories and resources.
[10] Gitxaała, at para 130.
[11] Gitxaała, at para 147.
[12] Gitxaała, at para 61.
[13] Gitxaała, at para 60.
[14] i.e. through the federal United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDA”).
[15] Gitxaała, at para 78, see also paras 125, 128-129.
[16] Gitxaała, at para 129.
[17] Gitxaała, at para 130.
[18] Gitxaała, at para 66, see also para 128.
[19] Gitxaała, at para 66.
[20] Gitxaała, at para 68.
[21] Gitxaała, at para 69.
[22] Gitxaała, at para 66.
[23] Gitxaała, at para 66.
[24] Gitxaała, at para 98.
[25] Gitxaała, at para 149.
[26] Gitxaała, at para 161.
[27] Gitxaała, at para 161.
[28] Gitxaała, at para 162, referencing Haida para 11.
[29] Gitxaała, at para 163.
[30] Gitxaała, at para 175.
[31] Gitxaała, at para 175.
[32] Gitxaała, at para 193.
[33] Gitxaała, at para 194.
[34] Gitxaała, at para 201.
[35] Gitxaała, at paras 204-205, 215.
[36] Gitxaała, at para 206.