We were honoured to represent Gitxaala Nation at the BC Court of Appeal in a case that could help redefine the legal landscape for how Indigenous human rights apply to laws in British Columbia. This was the first appellate-level consideration of the Declaration on the Rights of Indigenous Peoples Act (the “Declaration Act”) — a pivotal test of the BC government’s accountability to align its laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
At its core, this appeal asked a fundamental question: Do First Nations have the legal right to challenge the government in court when it refuses to align laws that are inconsistent with UNDRIP.
The Court heard from many parties and interveners with different perspectives on the case’s implications, including Gitxaala Nation and Ehattesaht Nation, the Attorney General of BC, Privateer Gold, the Association of Mineral Exploration, the BC Human Rights Commissioner, a coalition of First Nations led by First Nations Leadership Council, and Cheona Metals Inc.
This appeal raised several critical legal issues which the Court may decide, or address in ways that may influence future court decisions:
- Is the BC government accountable to the courts, or only to the Legislative Assembly, if it fails to align its laws with UNDRIP in consultation and cooperation with Indigenous peoples?
- Does UNDRIP apply to interpreting the common law? If not, then why did the Legislature require that only statutes be interpreted consistently with UNDRIP, while exempting judge-made laws?
- Do UNDRIP rights influence the scope of Aboriginal rights under s. 35 of the Constitution Act, 1982? Is the duty to consult, or the test for aboriginal title, facing change in the light of UNDRIP?
- How might the Court’s interpretation of BC’s Declaration Act impact the federal Declaration Act, or vice versa? The wording of the two Declarations are very similar in many ways.
This appeal isn’t just about legal technicalities — it’s about accountability. The Court will decide if the BC government must answer to Indigenous peoples, through the courts, on aligning laws.
Join the Conversation: to unpack the complexities of this case, Lisa C. Fong, KC, and Ruben Tillman will be hosting a webinar in March or April, where they will break down the key legal arguments and potential implications. Stay tuned — we’ll be sharing further details on this blog soon.
Lisa C. Fong, KC