In a landmark ruling, a majority of the British Columbia Court of Appeal has ruled that the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) is incorporated into BC law with immediate legal effect by the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”), and that courts may adjudicate whether particular laws are consistent with UNDRIP pursuant to s. 3 of DRIPA: Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430.
Ng Ariss Fong, Lawyers is honoured to act for the Gitxaała Nation in this case. The case originated with mineral claims granted in Lax k’naga dzol (Banks Island) in Laxyuubm Gitxaała (Gitxaała Traditional Territories), without notice to, consultation with, or consent from Gitxaała. Those grants of mineral rights took place against a backdrop of a toxic mining spill on Banks Island that has still not been cleaned up. Ehattesaht First Nation also faced mineral claim registrations on its Ha-Hahoulthee (Territory) and was also a party to the case. We’ve previously blogged about it here.
Earlier, in the initial judicial review decision in this case in the Supreme Court of British Columbia, Justice Ross already found that the Crown has a duty to consult and accommodate under s. 35 of the Constitution Act, 1982 prior to registering mineral claims on First Nations’ territories; however, Ross J. (a) concluded that DRIPA does not implement UNDRIP into the domestic law of BC; and (b) declined to declare that the provincial regime for granting mineral rights (the “Regime”) is inconsistent with UNDRIP. On the latter point, he was of the view that s. 3 of DRIPA (“[i]n consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration”) is notjusticiable. In other words, Ross J. concluded that there is no role for the courts, under s. 3 of DRIPA, in adjudicating disputes over whether particular laws are consistent with UNDRIP. Despite the imperative “must”, there is no (judicial) remedy where a First Nation and the provincial government disagree about consistency.
The Court of Appeal firmly disagreed. Justice Dickson, joined by Justice Iyer (Justice Riley dissenting, in part) succinctly described the problem at para. 176 (bolded emphasis added):
- “…where, as below, the Crown denies the existence of any inconsistency, unless Indigenous litigants have access to the courts to decide whether an inconsistency exists, they are left without a remedy and their rights under s. 3 are unenforceable.”
With this ruling, Gitxaała and Ehattesaht have a remedy. The Court declared the Regime to be inconsistent with UNDRIP. The provincial government’s statutory duty to consult and cooperate on measures to align the Regime with UNDRIP is triggered. Below, we break down the key points of the majority and dissenting reasons.
Majority (Dickson and Iyer JJ.)
Context – other UNDRIP decisions
Justice Dickson, at para. 45, took note of significant recent decisions dealing with UNDRIP that were handed down after Justice Ross’ ruling. These decisions include Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, where a unanimous court said UNDRIP “has been incorporated into the country’s positive laws” by the federal version of DRIPA (the United Nations Declaration on the Rights of Indigenous Peoples Act) (para. 4); R. c. Montour, 2023 QCCS 4154, which changed the common law test for Aboriginal rights after concluding that a presumption of conformity with UNDRIP applies to s. 35 of the Constitution Act, 1982; Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10, where two Justices said “UNDRIP is binding on Canada and therefore triggers the presumption of conformity” (para. 317, reasons of Martin and O’Bonsawin JJ.); and Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319, which also found a presumption of conformity with UNDRIP applies to s. 35. The lower court decisions are under appeal. The Gitxaała ruling is the first appellate-level decision to clearly decide that a presumption of conformity applies with respect to UNDRIP.
The nature of UNDRIP
Justice Dickson described UNDRIP as “an international declaration of the individual and collective rights of the world’s Indigenous peoples” (para. 64). She noted that UNDRIP is not “formally binding as a treaty”; however, “[s]ome of its articles overlap with existing rules of treaty, custom or general principles of law of broad application, expressed in specific relation to Indigenous peoples” (para. 66). With respect to the right of free, prior and informed consent, affirmed by Article 32(2) of UNDRIP with respect to resource projects, while Dickson J. was of the view that “the extent to which it expressing binding international legal obligations or otherwise is a matter of some debate in international legal circles”, she nonetheless said: “the existence of a state duty to consult Indigenous peoples in connection with state action affecting their lands or territories is generally accepted as a matter of international law” (para. 69, emphasis added).
In short, UNDRIP does not create rights, but it does recognize existing rights (para. 97).
Presumption of conformity
First, Dickson J. confirmed that s. 8.1(3) of the Interpretation Act (“[e]very Act and regulation must be construed as being consistent with the Declaration.”) “imposes a rebuttable presumption of consistency between British Columbia enactments and UNDRIP, which is functionally akin to the presumption of conformity”. That deals with statutes. But the ruling goes further to conclude “that UNDRIP engages the common law interpretive presumption of conformity arising out of Canada’s obligations and solemn commitment as a member of the international community to apply and implement UNDRIP in domestic law” (para. 125). She continued, in a cogent analysis (bolded emphasis added):
- [126] As I have explained, the common law presumption of conformity is a rule of judicial policy that requires domestic laws to be construed consistently with international law and comity, wherever possible. To repeat, the presumption applies whether a binding international rule originates in treaty or custom, and regardless of whether the international rule has been implemented domestically. Tied “to the language of Canada’s international obligations or commitments”, the presumption has two aspects: first, the Legislature is presumed to act in compliance with Canada’s treaty obligations and as a member of the international community; second, the Legislature is presumed to comply with the values and principles of customary and conventional law: 9147-0732 Québec inc. at paras. 33–35; Hape at para. 60.
- [127] As I have also explained, the Court stated in the First Nations Families Act Reference that “[w]hile the Declaration is not binding as a treaty in Canada” (emphasis added), in s. 4(a) of the Federal Declaration Act (a purpose statement) Parliament recognized the Declaration as “a universal international human rights instrument with application in Canadian law”: at para. 4. Then it stated “[i]t is therefore through [the Federal Declaration Act] that the Declaration is incorporated into the country’s domestic positive law”: at para. 15 (emphasis added). It also characterized the First Nations Families Act as a concrete step taken in keeping with Canada’s commitment to implement UNDRIP and part of the overall process of legislative reconciliation: at paras. 5–6, 21, 45.
- [128] As I read the reasons, the Court was acknowledging in the First Nations Families Act Reference that, while UNDRIP is not formally binding per se, it aggregates several binding international rules, obligations, and principles of broad application in specific relation to Indigenous peoples, together with internationally recognized standards and aspirations. It was also acknowledging that Canada could not express its consent to be bound by the rights, obligations, principles, and standards stated cumulatively in UNDRIP through ratification, as with a treaty, which, unlike UNDRIP, creates the binding rules that it articulates. However, the Court clarified that by enacting the Federal Declaration Act Parliament recognized Canada’s international obligations and solemn commitment to apply and implement those cumulatively stated rights, obligations, principles, and standards, as previously expressed by the federal executive, and, consistent with our dualist system, incorporated UNDRIP into domestic law by legislative action.
- [129] In my view, it follows that, wherever relevant, UNDRIP should be applied as a weighty source for the interpretation of Canadian law in accordance with the presumption of conformity, with due regard for the extent to which a relevant article expresses a binding international rule or general principle, minimum standard, or aspiration. In other words, unlike a typical international “soft law” instrument, UNDRIP should not be treated as a mere “non-binding international instrument” to which modest, moderate, or significant weight, or no weight at all, may be optionally ascribed in the interpretive exercise. As I see it, this interpretive mandate is justified in light of the widespread international support for UNDRIP, Canada’s unqualified international expression of commitment to its application and implementation, and, given Parliament’s enactment of the Federal Declaration Act, attenuated concern with safeguarding the respective roles of the executive and legislative branches and protecting parliamentary sovereignty that normally constrain application of the presumption.
This is a concise explanation of a complex issue: if UNDRIP is not a treaty, how can Canada bind itself to the rights affirmed by its articles? How to apply a presumption that generally applies to treaties, to a formally non-binding international instrument? As it happens, the answer is straightforward: Canada has committed to UNDRIP, both Canada and BC have incorporated UNDRIP into domestic law, and much of UNDRIP is already binding customary international law. UNDRIP, or at least a significant part of it, is one of Canada’s binding international obligations.
Justiciability
After reviewing the law on the doctrine of justiciability (justiciability “is about deciding whether to decide a matter in the courts”, “[t]he court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter”: paras. 170-171, quoting a Supreme Court of Canada Case), Justice Dickson said (emphasis added):
- [175] Bearing the foregoing principles in mind, I agree with the appellants that the judge erred in his justiciability analysis. Properly interpreted, s. 3 does not preclude judicial adjudication of whether a British Columbia law is consistent with UNDRIP or oust the courts’ jurisdiction to do so when asked by an Indigenous litigant to resolve a dispute with the Crown on an allegedly duty-triggering inconsistency. The question of consistency is fundamentally legal in nature, it can be adjudicated by the court against an objective legal standard, and, where disputed, is on its face justiciable. That it may also be complex and subject to consultation between the government and Indigenous peoples does not impact its justiciability.
The above analysis is consistent with the basic principles of the doctrine of justiciability. In the court below, Justice Ross appeared to import into the analysis a requirement that DRIPA “call upon the courts to adjudicate the issue of consistency” (para. 489 of his reasons). But that is not the question. As recognized by Justice Riley in dissent, “Superior courts have the jurisdiction to interpret, apply, and enforce provincial laws, and to judicially review action taken under those laws, unless that jurisdiction is expressly ousted, in a constitutionally compliant manner” (para. 221).
Notably, Justice Dickson also considered UNDRIP in her justiciability analysis, consistent with her conclusion that a presumption of conformity with UNDRIP applies to all laws (including judge-made laws such as the doctrine of justiciability) (emphasis added):
- [179] Moreover, an interpretation that s. 3 “does not create justiciable rights” is inconsistent with the first two purposes of the Declaration Act, namely, to affirm the application of UNDRIP to British Columbia law and to contribute to its implementation. It also fails to comport with the common law presumption of conformity and the s. 8.1(3) presumption of consistency. As noted, article 38 of UNDRIP provides that states “shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration”. In addition, article 40 provides that Indigenous peoples shall have “the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties…”, together with effective remedies for rights violations. Interpreting s. 3 to provide for unenforceable rights and corresponding duties in the alignment process does not conform to or harmonize with either article. Nor does it advance the overarching goal of reconciliation.
The Regime is inconsistent with UNDRIP
Having found that the question of consistency with UNDRIP “is quintessentially justiciable” (para. 182), Justice Dickson had no issues declaring that the Regime is inconsistent with UNDRIP. This must be the case: the Regime provided for the granting of mineral rights in unceded Indigenous territories without even notice to First Nations; indeed, BC itself acknowledged, belatedly after denying the same before Justice Ross, that the Regime is inconsistent. Dickson J. said simply: “I agree that the Mineral Claims Regime is manifestly inconsistent with article 32(2) of UNDRIP…” (para. 193, emphasis added).
The duty to consult
Finally, Justice Dickson agreed with Ehattesaht’s argument that First Nations should be able to raise UNDRIP rights during s. 35 consultations with the Crown. Her analysis mirrors the Supreme Court of Canada’s analysis in the First Nations Families Act Reference. In that case, the federal government’s statutory recognition of an inherent Aboriginal right of self-government engaged the honour of the Crown, amounted to a binding Crown promise of rights recognition, and precluded Crown denial of that right. Analogously (emphasis added):
- [161] Like the First Nations Families Act, the Declaration Act includes a legislative affirmation as its first purpose. In my view, that affirmation also amounts to a binding Crown promise, namely, 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 British Columbia laws, including the common law. By enacting s. 2(a) of the Declaration Act [“[t]he purposes of this Act are … to affirm the application of the Declaration to the laws of British Columbia”], the Legislature created a reasonable expectation that government actors will exercise their powers in accordance with the position it has affirmed, take a broad purposive approach to interpreting its promise, and act diligently in fulfilling that promise. The honour of the Crown is thus engaged.
- [162] In Haida, the Court observed that, in accordance with the common law tradition, the Crown duty to consult would develop over time with the application of the general framework it established: at para. 11. In Nevsun, the Court observed that the common law develops “where such developments are necessary to clarify a legal principle, to resolve an inconsistency, or to keep the law aligned with the evolution of society”: at para. 118. Consistent with those observations, the provincial respondents acknowledge that, as a relevant international instrument, UNDRIP can influence the development of the common law duty to consult. However, they say, development of that common law duty should be confined to incremental changes, with the “heavy lifting” of UNDRIP alignment to occur through legislative amendment.
- [163] I agree with provincial respondents that the influence of UNDRIP on the development of the common law duty to consult should proceed incrementally. I also agree that legislative action is the best route to align UNDRIP and British Columbia laws. However, given the Crown’s solemn promise to act as though UNDRIP applies to British Columbia laws, I agree with Ehattesaht that UNDRIP can and should inform the interpretation of the common law duty to consult that arises with provincial decision-making and conduct, and that the appellants are entitled to raise both their s. 35 rights and their UNDRIP rights in relation to the Mineral Claims Regime in consultation.
This is a significant step forward in Aboriginal law jurisprudence. While not a giant leap – the court is not saying that the Crown must obtain Indigenous consent – it is precisely an incremental development towards greater rights recognition, that ought to enable deeper and more meaningful consultation that recognizes inherent Indigenous rights, including governance rights (as affirmed by UNDRIP Articles 3 and 4).
Dissent (Riley J.)
Justice Riley dissented on the justiciability issue. He agreed with the majority that DRIPA “incorporates UNDRIP into the positive law of British Columbia, with immediate legal effect” and that Justice Ross erred in holding that DRIPA does not implement UNDRIP into BC law and that UNDRIP remains a non-binding international instrument (para. 201).
Indeed, except for his reasoning regarding justiciability, Riley J.’s judgment reinforces the majority decision, particularly regarding how s. 8.1(3) of the Interpretation Act should be used. He describes its application as follows (emphasis added):
- [216] Before squarely addressing the interpretation of the Declaration Act itself, I will comment briefly on s. 8.1(3) of the Interpretation Act. It states that every enactment “must be construed as being consistent with” UNDRIP. I agree with the judge that s. 8.1(3) establishes an interpretive “overlay”, but I disagree with his suggestion that this overlay is only engaged where there are two potentially competing interpretations of a statute. This would assign only a residual or secondary role to s. 8.1(3), in a manner that does not accord with its intended effect.
- [217] In my view, courts are required by s. 8.1(3) of the Interpretation Act to interpret British Columbia’s laws in a manner that achieves the greatest amount of consistency with UNDRIP that a text-based, purposive, and contextual interpretation of those laws will bear. One must always interpret a particular statutory provision based upon its text, purpose, and context. To the extent that the rights, standards, and goals reflected in UNDRIP are implicated, s. 8.1(3) of the Interpretation Act further requires us to adopt the text-based, purposive, and contextual interpretation that is most consistent with UNDRIP. This is not a function of any binary distinction between the concepts of consistency and inconsistency, but rather a recognition of the objective of maximizing consistency of the province’s laws with UNDRIP.
All three judges at the Court of Appeal, then, agree that BC statutes must be interpreted for “maximum consistency” with UNDRIP.
On justiciability, however, Justice Riley agreed with Justice Ross: there is no role for the courts in assessing inconsistency between BC laws and UNDRIP.
Riley J.’s conclusion on justiciability follows from his understanding of the function of DRIPA s. 3, which he describes as “directed toward the prospective attainment of consistency, not on the identification and adjudication of claims of inconsistency” (para. 224, emphasis added).
The “prospective” direction of s. 3 is one of four “textual features” that Justice Riley says point to the conclusion that the courts have no role in this context. In addition to the “what” (the forward looking focus of attaining consistency at an undetermined point in the future), the other textual features are: the “who” (the “government”, or executive, is responsible for pursuing the goal of consistency); the “how” (Riley J. says the “manner by which the government is expected to pursue the objective of attaining consistency … is through executive action, working in cooperation with Indigenous peoples in the province, focused on legislative reform” (para. 228)); and the “when” (the project of consistency has an “open-ended time frame” which makes it hard “to read the text of s. 3 as inviting courts to adjudicate on claims of inconsistency between UNDRIP and specific British Columbia laws as they exist at any particular point in time” (para. 230)).
Beyond those four “textual features”, Justice Riley notes that UNDRIP’s preamble includes statements encouraging partnership, agreements, and “harmonious and cooperative relationships” between states and Indigenous peoples, which he says support the conclusion that DRIPA’s “chosen method” of aligning laws with UNDRIP is through “legislative reconciliation” and not the courts (para. 232) .
He further notes that Canada has an existing “robust legal system for the litigation of Aboriginal and treaty rights claims”, which suggests to him that DRIPA was not intended to establish an “entirely separate route for the adjudication of Indigenous rights” (para. 234). And, he adopts the argument of the BC government during the appeal that emphasizes prior court statements that reconciliation is “rarely, if ever, achieved in courtrooms” (para. 235). Finally, he says “the appellants themselves urge judicial forbearance, leaving space for the parties to find common ground through consultation” (para. 238).
The last point deserves some scrutiny. Justice Riley is correct that Gitxaała and Ehattesaht were not asking the court to “pronounce on [the] precise meaning and application” of any particular article of UNDRIP (para. 236), but it’s not obvious why that would support an interpretation of DRIPA s. 3 that entirely ousts the courts.
While Justice Dickson squarely recognized the central issue of the appeal – whether or not the governments’ clear, unqualified obligation to take “all measures necessary” under DRIPA s. 3 is legally enforceable – Justice Riley elides the issue. His reasoning on justiciability implicitly accepts the premise of BC’s arguments to the court: that judicial oversight of the UNDRIP alignment process is counterproductive to Reconciliation.
That premise is convenient for the Crown, but it disregards the legal history of Aboriginal law. It is through the courts that the Crown has been spurred towards greater recognition of Indigenous rights. The Calder decision (Calder et al. v. Attorney-General of British Columbia, 1973 CanLII 4, [1973] SCR 313) recognized, for the first time in Canadian law, that Indigenous peoples had Aboriginal title arising from prior occupation of their lands, which prompted the era of modern treaties and the constitutional entrenchment of Aboriginal rights. It is precisely the possibility of legal enforcement of Indigenous rights that has made reconciliation a real legal prospect. As Dickson and Iyer JJ. suggest, a right without a remedy is hardly a right at all.
True reconciliation involves the Crown and First Nations interacting as equals, as mutually respectful governments. That reality remains an aspiration. The Crown is, to date, the only legally recognized source of governmental authority under Canadian law. Indigenous legal traditions are not, yet, recognized by the courts as part of Canadian law (there is nuance here, insofar as there is jurisprudence, particular in the Federal Courts, that purports to recognize Indigenous governance rights – however, these are exclusively in the context of Indian Act or other federally-delegated powers that include, as a distinct aspect, concurrent Indigenous powers). To state the obvious, there is a power imbalance between the Crown and Indigenous peoples. The Crown can and sometimes does purport to recognize Indigenous peoples as existing on an equal footing, but until that recognition is fully realized, nothing stops the Crown from retracting that recognition in the face of shifting political winds – unless, that is, the courts are willing and able to hold the Crown to its solemn, constitutional promises of rights recognition.
The majority decision in this case simply reads DRIPA as its written. When a statute says the government “must” “take all measures necessary”, that reads like the enforceable statutory obligation it obviously is. As Justice Dickson said, the issue of consistency under DRIPA s. 3 is “quintessentially” justiciable.
Contrary to what’s implicit in Justice Riley’s reasoning, a decision like this one does not interfere with reconciliation – it enables it.
Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430
Ruben Tillman