Case Summary - Gitxaala v British Columbia (Chief Gold Commissioner), 2025 BCCA 430

Entrance to abandoned gold mine in Goldstream Provincial Park, near Victoria, British Columbia. Clint Lalonde, CC BY 4.0 <https://creativecommons.org/licenses/by/4.0>, via Wikimedia Commons.

By Megan Reti

In December, the British Columbia (“BC”) Court of Appeal released the Gitxaala v British Columbia (Chief Gold Commissioner), 2025 BCCA 430 decision, which considers the relationship between BC’s Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 [DRIPA] and the United Nations Declaration on the Rights of Indigenous Peoples [UNDRIP]. In particular, this decision considered how DRIPA, and by extension, UNDRIP, interacts with the operation of a provincial statutory scheme, the mineral tenure system under BC’s Mineral Tenure Act, RSBC 1996, c 292. The ReconciliACTION blog has previously discussed UNDRIP here.

This decision provides important judicial direction on the implementation of UNDRIP in Canada and its interaction with federal and provincial legislation. While it grapples specifically with DRIPA, which only applies in BC, its discussion of UNDRIP is relevant across Canada.

The mineral tenure system (the “Mineral Regime”) allowed individual “free miners” to register claims to mineral rights on Crown land through an automated online registry without any consultation with affected First Nations. The Gitxaala Nation submitted this regime was inconsistent with the Crown’s duties under s 35 of the Constitution Act, 1982, the Honour of the Crown, s 3 of DRIPA, and the First Nation’s rights recognized in UNDRIP and DRIPA. 

The lower court found that the Crown’s duty to consult was triggered by the grant of mineral claims and that the absence of a system for pre-registration consultation breached that duty. However, the judge concluded that DRIPA did not implement UNDRIP into BC law and that UNDRIP remained “a non-binding international instrument” (Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 at para 437). 

On appeal the majority held that the judge below adopted an unduly narrow approach to the interpretation and legal effect of DRIPA and UNDRIP. The Court held that DRIPA incorporated UNDRIP into the positive law of BC with section 3 of DRIPA imposing a statutory duty on the Crown to consult and cooperate with Indigenous Peoples within BC to address unresolved inconsistencies between UNDRIP rights and the standards and laws of BC (para 7).

It is notable that between the trial and appeal, the Supreme Court of Canada released its decision Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (“C-92 Reference Case” - discussed previously on the blog here), which found that UNDRIP “has been incorporated into the country’s positive law” by the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (para 4). The majority in Gitxaala held that “wherever relevant, UNDRIP should be applied as a weighty source for the interpretation of Canadian law, rather than like a “typical international “soft law” instrument” (para 129). However, because UNDRIP contains a mix of binding rules, obligations, principles and aspirations, determining whether a domestic law conforms with UNDRIP “may require assessment of the extent to which a relevant article states a binding rule or a general principle, a minimum standard, or an aspiration” (para 130). 

Alone, s 2(a) of DRIPA does not implement UNDRIP into BC law, as it does not create substantive rights. However, s 2(b), shows intent to implement UNDRIP in some immediate sense and raises its status to more than a mere non-binding international instrument (para 144).

Further, “generously and purposively interpreted, s 3 of [DRIPA] imposes a positive obligation on the Crown, in consultation and cooperation with Indigenous Peoples, to take all steps, methods, and means (measures) necessary to ensure (make certain) that BC laws clearly conform with the binding international rights, obligations, and principles aggregated in UNDRIP and generally harmonize with the minimum standards and aspirations that it articulates (UNDRIP consistency)” (para 149). Further, s 8.1(3) of the Interpretation Act requires acts and regulations in BC to be construed as being consistent with DRIPA. This provision creates a rebuttable presumption of consistency between British Columbia statutes and UNDRIP (para 92). The existence of an inconsistency between a BC law and UNDRIP will trigger the Crown’s obligation to take action to resolve the inconsistency in consultation with Indigenous peoples, such as through legislative change or at the policy level (paras 149, 156).  

The majority also discussed how DRIPA relates to the Honour of the Crown and the duty to consult. DRIPA amounts to “a binding Crown promise that the Crown will act as though the existing legal rights, obligations, principles, minimum standards and goals expressed in UNDRIP in specific relation to Indigenous peoples apply to BC laws, including the common law” (para 161). Section 2(a) of DRIPA created a reasonable expectation that government actors will exercise their powers in accordance with the position affirmed by the legislature (para 161).

On the question of whether consistency between the Mineral Regime and DRIPA/UNDRIP was a matter that should be decided by the court (legal justiciable), the majority held that it was. Otherwise, if an Indigenous group claims there is an inconsistency under DRIPA, and the Crown denies that the inconsistency exists, the Indigenous group is left without a remedy and their rights under s 3 are unenforceable (para 176). An interpretation of s 3 that does not create justiciable rights is inconsistent with the stated purposes of DRIPA and fails to comport with the common law presumption of conformity and the presumption of consistency (para 179). 

Justice Riley, in dissent, took a narrower view of the Court’s role in determining inconsistency and the justiciability of DRIPA on this point (para 201-205), holding that while courts may have a role to play in holding the government accountable for its statutory obligations to consult with Indigenous peoples and ensure legislative consistency under DRIPA, that jurisdiction ought not to be invoked in this case (para 206).

The BC government preferred the dissent, and publicly criticized the Court in the media following the release of this decision, an unusual action met with concern by legal organizations and Indigenous leaders. Premier Eby has since vowed to both amend DRIPA and appeal to the Supreme Court of Canada. There will certainly be more to come on this issue.