Ng Ariss Fong acts for Gitxaała Nation in this appeal. The update below interprets BC’s written argument, and does not preview the response of Gitxaała Nation.
On August 17, 2026, British Columbia filed its factum in the Supreme Court of Canada appeal from Gitxaała v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430. BC asks the Court to set aside the Court of Appeal’s declaration that the automatic online mineral claims system was inconsistent with article 32(2) of UNDRIP (para. 132).
BC’s argument advances one key proposition: while BC’s Declaration Act (DRIPA) commits government to align BC’s laws with UNDRIP, no court may say whether a law falls short because DRIPA does not give courts such a mandate.
BC’s appeal factum in SCC file 42200 is available here.
What BC concedes
BC accepts that section 8.1(3) of the Interpretation Act requires courts to read provincial enactments as consistent with UNDRIP (paras. 1, 14). BC accepts that the Mineral Tenure Act needs reform to align with UNDRIP (para. 65). BC did not appeal Justice Ross’s ruling that the claims system breached the duty to consult (para. 27). And BC asks that the Nations receive their costs if BC loses (para. 131).
1. What work UNDRIP does in BC law
The common law: no presumption of conformity
The Court of Appeal majority held that the Crown’s commitments to UNDRIP, including passing of UNDRIP-implementation legislation, engage the common law presumption of conformity. Under that presumption, courts read domestic law to match Canada’s international commitments unless a statute clearly says otherwise. BC asks the Supreme Court to reject that holding. “The correct view is to recognize UNDRIP’s continuing non-binding status” (para. 105).
BC’s reasoning runs in three steps (paras. 115 to 121).
1. The presumption applies only to binding international obligations. BC says General Assembly resolutions are “formally non-binding,” except where they declare customary international law (paras. 8, 116). BC adds that some states may have supported UNDRIP “because it is non-binding” (para. 116).
2. Diplomatic commitments cannot ground application of the presumption of conformity. While it’s true that in 2016, Canada told the United Nations it was “a full supporter” of UNDRIP “without qualification” (para. 9), BC files that commitment under “diplomatic commitments writ large” (para. 117). BC describes the same speech’s promise of “a full box of rights” under section 35 as “evocative of future aspirations” (para. 48).
3. The federal UNDRIP Act cannot bind provinces. BC invokes the 1937 Labour Conventions case and quotes a scholar’s warning that reversing it “would ring the death knell of federalism” (para. 118).
BC acknowledges that both the majority and the dissent below concluded UNDRIP is no longer a non-binding instrument (para. 35). On this point BC asks the Supreme Court to go further than any judge of the Court of Appeal went. BC’s anchor is Justice Ross, the judge of first instance (para. 6).
Two features of the argument deserve a skeptical eye. BC admits that section 8.1(3) is “a legislative codification similar in effect to the presumption of conformity” for BC legislation (para. 106). BC’s stated worry is that a common law presumption “overtakes the choice” of the provinces that passed no UNDRIP law and overrides the “precise parameters” that BC’s own Legislature chose (para. 106). BC, the first government in Canada to legislate UNDRIP, is asking the Court to protect other governments’ freedom to ignore it. Yet BC’s own factum quotes the Supreme Court’s explanation that the presumption is rebuttable for the very purpose of preserving parliamentary sovereignty (para. 111). A legislature that wants to depart from UNDRIP need only say so clearly.
BC also attacks the majority’s “sliding scale,” under which the presumption varies with the character of each UNDRIP article (paras. 122 to 126). But BC’s “cure” is to drop the presumption altogether.
BC would leave two things in its place. Courts may treat UNDRIP as “context,” with “greater or lesser weight depending on the circumstances” (para. 128). And section 8.1(3) of the Interpretation Act applies to enactments, subject to a “contrary intention” that BC says “need not be express” (para. 14).
Section 2(a): “affirm the application” means less than it says
Section 2(a) states that a purpose of the Act is “to affirm the application of the Declaration to the laws of British Columbia.” The majority held that the Act incorporates UNDRIP into BC’s positive law with immediate legal effect. BC answers on three fronts.
The Supreme Court’s own words. In 2024, the Supreme Court of Canada said the federal UNDRIP Act incorporated UNDRIP “into the country’s positive law.” BC calls that statement “a colloquial judicial observation” (para. 88). BC then offers two readings of the “positive law” language. It may mean “no more than” that UNDRIP appears as a schedule to a statute (para. 92). Or it is “conclusory” (para. 93).
The purpose clause. BC says a purpose clause guides the reading of the Declaration Act alone and cannot reach BC’s other laws (paras. 95, 96). BC adds that drafters moved the affirmation out of an operative provision on purpose, to keep courts from applying UNDRIP across BC law (para. 97). BC’s cited support for that account of legislative intent is a law professor’s Substack post. BC also says the majority’s reading makes section 8.1(3) redundant (para. 98).
The honour of the Crown. The majority held that section 2(a) amounts to a binding Crown promise to act as though UNDRIP’s standards apply to BC’s laws. BC calls that holding “a mechanism for accelerated judicial implementation of UNDRIP” (para. 101) and “an overextension of the honour of the Crown” (para. 104). BC accepts that the honour of the Crown governs how the executive carries out section 3 (paras. 99, 102), but says that the legislative branch “can be bound by neither the Act nor the honour of the Crown” (para. 99).
The constitutional frame
BC wraps its interpretive argument in constitutional warnings. The majority’s reasoning, BC says, “sets a trajectory towards constitutionalization” (para. 5). BC sets out the following propositions as “necessary context” (paras. 46 to 54).
- Section 35 rights “are not presently co-extensive with UNDRIP’s 46 articles” (para. 47).
- Nobody has started the amending procedure needed to add UNDRIP rights to section 35 (para. 48).
- The Declaration Act contains no primacy clause, so courts cannot strike down or suspend laws for inconsistency with UNDRIP. BC says legislatures left out that power on purpose (paras. 49, 50).
- Parliamentary sovereignty leaves the Legislature “free to choose how, when, and whether to implement UNDRIP in any given legislative context” (para. 53).
- If the Court reads either UNDRIP statute as changing constitutional norms, the Court “must explain” how those norms reach the nine provinces and two territories with no UNDRIP law (para. 52).
Yet most of that list answers a judgment nobody wrote. BC’s own account shows that the majority said DRIPA section 2(a) creates no new substantive rights (para. 86). The declaration addressed the Chief Gold Commissioner’s conduct and left the Mineral Tenure Act standing (paras. 31, 79). The Court of Appeal did not strike down any law, and nobody amended the Constitution. BC’s reply is that the majority’s result came “close to that” (para. 86).
2. Whether a court may find a BC law inconsistent with UNDRIP
Section 3 of the Declaration Act says government “must take all measures necessary” to make BC’s laws consistent with UNDRIP, in consultation and cooperation with Indigenous peoples. BC says no court may decide whether a given law is inconsistent (paras. 55 to 74). BC places the justiciability question “at the heart of the appeal” (para. 85).
“Can” versus “should”
BC says the majority asked whether a court can measure a law against UNDRIP and skipped whether it should (para. 61). BC faults the majority for demanding express words ousting the courts. “The majority conflated jurisdiction with justiciability” (para. 63). BC prefers Justice Riley’s method of asking what, who, how, and when the Legislature intended (para. 60).
BC argues that DRIPA section 3 binds only the executive, whereas the Legislature decides what becomes law, and the Legislature owes nothing (paras. 53, 64). So the alignment process “cannot be conceived as, in itself, a rights-determining or rights-vindicating process” (para. 64). A court that declares an inconsistency either speaks “without binding effect” or “improperly usurps legislative decision making” (para. 64).
For accountability, BC points to the action plan and annual reports tabled in the Legislature (para. 16). BC leaves open whether outright “denial and inaction” could ever reach a court, calling it “a matter for another case” (para. 67). BC also cautions that slow progress does not equal denial (para. 67).
“No dispute existed”
BC says the majority invented a dispute. The province has “openly conceded” the need to reform the Mineral Tenure Actsince the March 30, 2022 action plan, so no court needed to clear an obstacle to the alignment process (para. 65).
The factum’s own facts complicate that claim. The action plan item arrived after Gitxaała had filed its petition (para. 24). At the hearing before Justice Ross, BC did dispute justiciability and “did not directly address inconsistency with UNDRIP” (para. 25).
The “parallel universe of litigation”
BC warns that court involvement would turn the alignment process into a “parallel universe of litigation” (para. 74). It borrows Justice Rowe’s warning in Mikisew Cree that judicial supervision of law-making becomes “drawn out and dysfunctional” (para. 73). The majority’s declaration, BC says, pushes government and Indigenous peoples back “towards patterns of adversarial litigation” (para. 3).
The alternative BC offers is section 35 of the Constitution Act, 1982, which it calls a “robust and well-established framework” (para. 4). Yet in this very case, BC argued that the section 35 duty to consult did not apply to claim registration (para. 25). BC explains that stance as the Attorney General’s responsibility to defend existing legislation (para. 25). BC lost that argument and did not appeal (paras. 26, 27). Nations who have spent decades and millions proving rights under section 35 will have their own view of how well that route serves as the only one.
3. Relief
BC asks the Court to allow the appeal and set aside the declaration (para. 132). If the Court finds the question justiciable, BC argues in the alternative that the majority should have refused a declaration anyway (paras. 75 to 84). The declaration, BC says, “does not offer clarity and does not foster reconciliation” (para. 75).
BC’s objections to the declaration
- Shifting relief. BC says the declarations requested by the Nations changed “dramatically” between the petition and the appeal (paras. 39 to 42). The declaration the majority granted was “strikingly different from anything proposed by the parties” (para. 78).
- Conduct, not law. The declaration targets the Chief Gold Commissioner’s conduct in setting up the online system. BC says the majority’s analysis concerned laws, and the online system dates from January 2005, before UNDRIP existed (paras. 79, 80).
- Mootness. On March 26, 2025, BC introduced the Mineral Claims Consultation Framework and now consults before registering claims. BC’s summary is that the majority took “a battering ram against an open door” (para. 80).
- No guidance on article 32(2). The majority did not define what UNDRIP article 32(2) requires in terms of consultation, or how article 46 limits it. If article 32(2) matches section 35, BC says, the declaration adds nothing. If it demands more, nobody knows how much (para. 81). BC suggests the majority may have been “merging UNDRIP rights into the s. 35 duty to consult” (para. 82).
- Genuine interest. Orders under the Environment and Land Use Act bar new claims in Ehattesaht territory and Gitxaała territory. BC points to those orders when it raises the requirement that a party have a “genuine interest” in the declaration (paras. 28 to 30, 83).
- Judicial review limits. The Judicial Review Procedure Act requires an exercise of, or refusal to exercise, a statutory power. BC says that requirement keeps judicial review from becoming a “roving commission,” and that the majority never identified a statutory power (para. 84).
What happens next
Gitxaała, Ehattesaht, and the other respondents must file their factums by October 13, 2026. Interveners granted leave file their factums by November 20, 2026. The docket lists 38 proposed interveners, including six attorneys general, First Nations from across the country, industry groups, and human rights organizations. The Court has not yet set a hearing date.
We will post a further update when the respondents’ factums are filed.
Lisa C. Fong, KC and Michael Ng