Following the B.C. Court of Appeal’s decision in Gitxaała v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430, Premier Eby reacted by saying he would amend B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA) because courts should not, in his words, “take over” the business of reconciliation. This framing portrays government’s response as based on courts playing an inappropriate role in reconciliation, which is (government would say) a strictly “political” enterprise. But this framing does not ring true, and begs the question of why government is actually choosing to reduce court-oversight.
To understand why courts are playing their proper role in reconciliation, we need to examine what happens if government refuses reconciliation discussions completely.
In the absence of shared decision-making about what reconciliation should look like, reconciliation involves courts enforcing Aboriginal rights – legal rights recognized and affirmed” by section 35 of the Constitution Act, 1982. Disputes about Aboriginal rights are, however, expensive and time-consuming.
In this context of Indigenous peoples always having the option to litigate before the courts to establish their legal rights, BC enacted DRIPA. DRIPA provides a process by which courts and governments may work to align laws with UNDRIP, which does not set out “special” rights for Indigenous peoples, but sets out basic human rights standards.
The legislature gave UNDRIP legal force
As the Court of Appeal recognized in Gitxaala, when BC’s legislature enacted DRIPA in 2019, it moved reconciliation forward by giving UNDRIP “legal” importance – not as “rights” per se, but still as a human rights standard with which laws of BC are presumed to conform (to the extent possible), or with which government “must” align laws if they do not conform. DRIPA’s provisions reduce the need for First Nations to litigate their Aboriginal rights as the only means of addressing Crown laws that interfere with their Aboriginal rights, as expressed and catalogued by UNDRIP. But DRIPA’s provisions also give UNDRIP “legal” aspects, which means a role for courts.
In Gitxaala, the Court of Appeal did what courts are supposed to do: answer “legal” questions. In that case the question was simply this: can a court assess whether a provincial law or regime conflicts with the human rights in UNDRIP that B.C. adopted in DRIPA as an objective? The court said “yes” and declared B.C.’s mineral claim regime “inconsistent” with UNDRIP Article 32(2), as the Crown grants minerals to third persons without ever consulting with affected First Nations. This was not a “takeover” of reconciliation, but the court doing exactly what courts do.
Courts interpret statutes, apply constitutional and legal constraints, and grant remedies – often declaratory ones – then send the problem back to government to fix through legislation, policy, and consultation. The Court in Gitxaala did not invalidate BC’s mineral grant regime, or decide for government what a new mineral grant regime must look like; it only recognized that BC had obligated itself to align its laws with UNDRIP, and that UNDRIP requires at least consultation before government takes (or authorizes the taking of) resources from Indigenous traditional territories.
Even if BC had never enacted DRIPA or amended the Interpretation Act, the Courts would still have to consider UNDRIP. As the Court of Appeal noted in Gitxaala, in 2016 Canada endorsed UNDRIP without reservation. Then in 2021, by enacting the federal Declaration Act, Canada gave domestic effect to its international commitment. Consequently, courts must presume, where possible, that Canada’s domestic laws conform with Canada’s international commitments, including UNDRIP.
Reconciliation, law, and the courts’ proper role
Even before DRIPA, the BC government had a “legal” but open-ended obligation to reconcile with Indigenous peoples under Canada’s constitution. With the advent of DRIPA, the legislature imposed a more specific “legal” obligation on government to align laws with UNDRIP. Both “legal” duties engage courts because the main job of courts is to address legal rights and duties. Legal rights and duties always form some part of the framework within which government may engage in “political” discussions with First Nations – discussions about, for example, what reconciliation might look like if negotiated.
In Gitxaala, the court did not “take over” reconciliation; it simply did its job of deciding if, for purposes of future consultation discussions, BC’s mineral grant regime did or did not satisfy UNDRIP’s consultation standard. It did not.
While the government now appears to characterize courts as playing too great a role in reconciliation, that narrative does not ring true. Government’s motives for stepping-back from its legal duties under DRIPA seem to lie elsewhere — perhaps in the election realm?
Regardless, government choosing to step back from its legal duties under DRIPA is counter-productive, as reducing its accountability for reconciliation puts First Nations back in their status quo position of having to litigate their Aboriginal title and rights – an expensive and uncertain situation for everyone.
Lisa C. Fong, KC and Michael Ng