What Happens Next in Gitxaała: Interveners, Deadlines, and the Road to a Hearing

Thirty-six Applicants Line Up to Intervene in Gitxaala at the Supreme Court of Canada

On September 14, 2026, the window closed for motions to intervene in British Columbia’s appeal in Gitxaała v. British Columbia (Chief Gold Commissioner). Thirty-six applicants filed. Six of them are Attorneys General. Eighteen are First Nations and Indigenous organizations. A nineteenth, the Southeast Alaska Indigenous Transboundary Commission together with Lummi Nation, wrote to the Registrar the same day to say it would seek a one-week extension. When the Court of Appeal heard the case in January 2025, seven interveners took part. The number has more than quintupled.

How the case reached the Supreme Court

On December 5, 2025, a majority of the BC Court of Appeal held that the Declaration on the Rights of Indigenous Peoples Act incorporates UNDRIP into BC’s positive law, that UNDRIP supplies the interpretive lens and minimum standards against which BC’s laws must be measured, and that a court can decide whether a BC law is inconsistent with UNDRIP (Gitxaała v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430). Applying that framework, the majority found BC’s free-entry mineral claims regime inconsistent with UNDRIP. Justice Riley dissented on justiciability.

The Province sought leave to appeal. On May 21, 2026, the Supreme Court of Canada granted it (SCC file 42200). BC filed its notice of appeal on June 22 and its factum on August 17 (see our blog). Gitxaała Nation and Ehattesaht First Nation will file their response factums on October 13, 2026.

BC’s factum puts three questions to the Court. Two sit at the centre of the appeal. Does UNDRIP, as adopted through the Declaration Act, engage the presumption that BC’s laws conform to it? And can a court decide whether a BC law is inconsistent with UNDRIP under section 3 of the Declaration Act, or does that job belong to the legislature alone? The third rides on the second: if a court can decide inconsistency, were the conditions for a declaration met in this case?

Who is applying to intervene?

Group	Count	Applicants
Attorneys General	6	Canada, Alberta, Saskatchewan, Ontario, Quebec, Northwest Territories
First Nations and Indigenous organizations	18	Including the Council of the Haida Nation, Heiltsuk Tribal Council, Union of BC Indian Chiefs / First Nations Summit / BC Assembly of First Nations, a joint motion by the First Nations of the Maa-nulth Treaty Society, Nisga’a Nation, Tla’amin Nation, Tłı̨chǫ Government and Tsawwassen First Nation, Kebaowek First Nation, Little Salmon Carmacks and Na-Cho Nyäk Dun, and the Confederated Tribes of the Colville Reservation
Public interest organizations	7	Including the BC Human Rights Commissioner, Amnesty International Canada, the BC and Canadian Civil Liberties Associations, MiningWatch Canada, the David Asper Centre and the Raoul Wallenberg Centre for Human Rights
Industry	3	Association for Mineral Exploration BC; Cheona Metals Inc.; BC Seafood Alliance
Individuals	2	Two possible individual applicants, one self-represented and a second whose filing is not yet complete

What the applicants say

Every motion to intervene must identify the applicant’s interest in the appeal, state the position it will take on the questions it proposes to address, and explain why its submissions will help the Court and differ from the parties’ (Rule 57).

The motions are public filings. The docket already lists them, and if leave is granted each intervener’s factum should appear on the Supreme Court of Canada website: https://www.scc-csc.ca/cases-dossiers/search-recherche/42200/.

The governments provide a variety of perspectives, none supporting the BCCA decision. Canada, Alberta and Québec say UNDRIP is a non-binding international instrument that does not engage the presumption of conformity, and Canada adds that consistency with UNDRIP is not a question courts can decide. Ontario offers a third path: before the presumption attaches to any UNDRIP provision, the binding international norm behind that provision must be identified, and partial overlap with binding law does not lift the whole provision. Alberta, Ontario and Quebec each add that whatever the Court decides about BC’s statute should not bind provinces that have passed no legislation like it. Saskatchewan takes the position that the Court of Appeal erred in giving substantive content to what is in effect a purpose clause in BC’s legislation, and that a legislature must say clearly and plainly that an instrument prevails over its laws before that instrument gains quasi-constitutional status – an affirmation that does not appear in the Declaration Act. The Northwest Territories takes no position on the three issues and asks instead for judicial forbearance toward implementation processes designed in collaboration with Indigenous governments.

All 18 Indigenous applicants argue in ways that support the result below, and most defend the presumption of of conformity. They part ways on method. The Court of Appeal majority set out a sliding scale, giving more weight to UNDRIP articles that reflect binding customary international law. Some applicants, Mitchikanibikok Inik and Sandy Bay Ojibway among them, reject the sliding scale and say every article carries equal weight. The joint modern-treaty motion favours an article-by-article assessment. Many frame their interest through a specific regime: free-entry mineral tenure in BC, Yukon and Quebec, nuclear waste licensing, forestry, marine liability, and modern treaty implementation. We draw highlights from the Indigenous applicants’ motions below:

Union of BC Indian Chiefs, First Nations Summit and BC Assembly of First Nations (joint motion): section 2(a) of the Declaration Act is the Legislature’s affirmation, on the Crown’s behalf, that UNDRIP applies to BC’s laws with immediate effect, and the honour of the Crown holds the Crown to that affirmation. Their affidavits also put before the Court BC’s April 2026 proposal to suspend parts of the Declaration Act, and the Province’s agreement not to introduce that legislation in the spring session.
Council of the Haida Nation: the honour of the Crown, enshrined in section 35(1), makes the Crown’s Declaration Act commitments enforceable, and a breach requires a remedy; referencing Quebec (Attorney General) v Pekuakamiulnuatsh Takuhikan, 2024 SCC 39, courts “can and must be creative in finding a remedy that advances reconciliation”.
Heiltsuk Tribal Council: the presumption of conformity lets courts read the Marine Liability Act and the international conventions it adopts so that Indigenous cultural losses from an oil spill are compensable, closing a gap the conventions leave open.
Lower Similkameen Indian Band, it is only through judicial intervention that the Crown’s history of denying and delaying the recognition of Indigenous human rights has finally begun to give way to a path toward reconciliation, and a declaration of inconsistency has practical effect because cooperative work on a new Mineral Tenure Act has stalled.
Tsay Keh Dene Nation: UNDRIP in its entirety informs the duty to consult now, and section 3 cannot be read to defer the immediate effect of section 2(a).
Kwantlen First Nation: UNDRIP is a weighty source for the nature and extent of section 35 rights whether or not any statute incorporates it.
‘Na̱mg̱is First Nation: the Declaration Act and ‘Na̱mg̱is’s own joint decision-making agreement with BC under section 7 depend on treating UNDRIP rights as substantive rights; reducing UNDRIP to an interpretive aid would send First Nations back to litigation.
Saulteau First Nations: the branch that interprets statutes most often is the executive, so the real question is how UNDRIP’s interpretive weight binds the officials who make resource decisions every day, through sections 2 and 8.1(3)(c) of the Interpretation Act.
First Nations of the Maa-nulth Treaty Society, Nisga’a Nation, Tla’amin Nation, Tsawwassen First Nation and Tłı̨chǫ Government (joint motion): article 37 states a binding customary rule that states must honour their treaties with Indigenous peoples, so UNDRIP cannot be read to diminish treaty rights, and article 32(2) can inform but not displace the consent procedures a modern treaty already fixes.
Little Salmon Carmacks First Nation and the First Nation of Na-Cho Nyäk Dun: UNDRIP’s significance for constitutional interpretation applies nationwide and cannot vary with each province’s or territory’s legislative choices; they propose a nexus test under which UNDRIP carries particular weight where its articles map onto rights or Crown obligations Canadian law already recognizes.
Kebaowek First Nation: judicial comity. Courts across Canada should take one approach to substantially similar UNDRIP statutes and to UNDRIP’s role in the duty to consult, as the Federal Court did in Kebaowek’s own case against Canadian Nuclear Laboratories.
Algonquins of Pikwàkanagàn First Nation and Sagkeeng Anicinabe Nation (joint motion): UNDRIP animates the Haida framework rather than contradicting it, so the Crown must at minimum seek to obtain consent, and free, prior and informed consent is a distinct concept from a veto. Both Nations are asserting article 29(2) over radioactive waste on their territories.
Mitchikanibikok Inik (Algonquins of Barriere Lake): once triggered, the presumption applies to all legislation in every jurisdiction, including Quebec, which has no implementing statute, and to section 35 itself.
Sandy Bay Ojibway First Nation: UNDRIP as a whole meets the test for customary international law, and Manitoba’s comparatively weakly worded Path to Reconciliation Act illustrates the risks of treating the legal and normative force of UNDRIP as dependent on the content of provincial implementing legislation, rather than recognizing its independent status as an international law instrument and Crown promise.
Congress of Aboriginal Peoples: Through experience, including the Daniels litigation, seeking non-coercive declarations can be a useful tool to advance the rights and interests of Indigenous peoples and further reconciliation. In addition, “the negotiating table is not a substitute for the courtroom and there are times when litigation is necessary to meaningfully advance reconciliation”.
Confederated Tribes of the Colville Reservation (Sinixt): reconciliation without accountability leaves Indigenous nations, particularly displaced communities, with no meaningful recourse, and Article 26 affirms rights to traditional lands whether or not a colonial government succeeded in displacing them.
Chief Petra A’Huille and the Maiyoo Keyoh Society: the Declaration Act must be read through legal pluralism, so the Crown must consult the rights-holders and institutions the affected Indigenous legal order recognizes, not only Indian Act bands.
Grand Chief Edward John, Wilton Littlechild, Kenneth Deer, Dalee Sambo Dorough, Sheryl Lightfoot and three others: BC’s label of UNDRIP as “a non-binding international instrument” is “simplistic and wrong”, and both UNDRIP itself (articles 27 and 40) and Canadian law contemplate a role for the courts in remedying breaches.

The public interest applicants all argue in ways that generally support the result below. They differ on method. Among the positions taken by each:

BC Human Rights Commissioner: the Declaration Act is quasi-constitutional human rights legislation with primacy over other laws when they conflict, and section 3 provides a justiciable requirement for consistency between the laws of BC and UNDRIP in both executive and legislative contexts.
BC Civil Liberties Association: an interpretation of section 3 of the Declaration Act that purports to oust the courts is unsupportable after Democracy Watch v. Canada (Attorney General), 2026 SCC 28, where the Supreme Court held that “every exercise of public authority is subject to the courts’ supervisory jurisdiction”; a section 3 that shielded the executive from review would work like a privative clause.
Canadian Civil Liberties Association: whether an instrument is “binding” so as to give rise to the presumption of conformity turns on whether the state chose to bind itself, not on the instrument’s label, and implementing legislation in three Canadian jurisdictions shows Canada did so choose; UNDRIP as a whole engages the presumption.
Amnesty International Canada: because the Declaration Act and the federal UNDRIP Act bring UNDRIP into positive law, every article carries equal weight and courts need not sort binding rules from aspirations before applying them.
MiningWatch Canada: law reform on Indigenous rights has followed court decisions rather than preceded them, from Calder to Sparrow to Haida, and the courts must hold BC to section 3 because the Province “will inevitably fall short from time to time”.
David Asper Centre and the International Human Rights Program: justiciability in Crown-Indigenous disputes must account for colonial history and reconciliation; in the courts below, four distinct routes by which UNDRIP reaches domestic law were contested; the “bindingness” of an instrument at international law is not a simple binary.
Raoul Wallenberg Centre: care must be taken to develop a methodology that distinguishes between UNDRIP’s status as international law, the applicability of the presumption of conformity in the absence of implementing legislation (where there is no sliding scale – the presumption either applies or does not to a given article, depending on whether the article codifies binding international norms or not), and the distinct statutory effects of framework legislation like the Declaration Act.

The industry applicants divide. AME BC supports the Province on justiciability and endorses Justice Riley’s dissent: section 3 describes an incremental, participatory law reform process that courts should not closely supervise. The BC Seafood Alliance says courts should not drive UNDRIP implementation in sectors with complex management regimes like the commercial fishery, and warns that the holding will reach every sector that touches Aboriginal rights. Cheona Metals, an Indigenous-owned exploration company, goes the other way: an UNDRIP-compliant tenure regime creates economic certainty, obtaining consent before a claim is registered protects the project later, and the UNDRIP rights that mining engages reflect customary norms that attract the presumption on their own.