A dispute about mineral claims might seem far removed from the daily work of health profession colleges, but don’t be fooled. In Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430, the Court of Appeal delivered a decision with consequences for every statutory decision-maker in the province, including boards, committees, and staff of health profession colleges.
The Court confirmed that statutory actors must, if possible, interpret and apply all laws in a manner consistent with the human rights of Indigenous peoples, as articulated in the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP” or the “Declaration”). This interpretive presumption does not depend on subject matter; it applies just as much to professional regulation as it does to resource development.
For health profession colleges, this conclusion builds on an obligation that already exists. Since 2021, colleges have been required to interpret the Health Professions Act through the lens of British Columbia’s Interpretation Act. Section 8.1(3) now provides, in mandatory terms, that “every Act and regulation must be construed as being consistent with the Declaration.” UNDRIP therefore ceased to be wholly aspirational and became a legally important aspect of statutory interpretation.
What the Gitxaala decision adds is clarity and force. The Court of Appeal examined what IA section 8.1(3) actually requires, when read alongside (a) Canada’s international commitments, (b) the federal United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDRIPA”) and British Columbia’s own Declaration on the Rights of Indigenous Peoples Act (“DRIPA”). Read together, these instruments reshape the interpretive landscape.
The Court’s conclusion was direct. UNDRIP does not sit in the background as a contextual factor that decision-makers may consider during or after an interpretive exercise. UNDRIP operates as a central interpretive principle for anyone applying domestic law in Canada, including provincial legislation and the common law itself.
Current press statements indicate that the BC government will pass amendments (undisclosed as of this writing) to DRIPA and the Interpretation Act. But Gitxaala involves a key finding: since Canada has committed to UNDRIP, a presumption of conformity with UNDRIP applies to all domestic law, including BC statutes and BC common law – a conclusion that is not dependent on BC’s DRIPA or on BC’s Interpretation Act, even though all three statutes happen to currently support a presumption of conformity.
1. What the Gitxaala case was about
At its core, Gitxaala involved a challenge to the Chief Gold Commissioner’s operation of an online system that allowed users to automatically register mineral claims without the government first consulting with the Indigenous peoples who would be impacted. The lower court ultimately declared that this conduct was inconsistent with s. 35 of the Constitution Act, 1982, which recognizes and affirms existing aboriginal rights. Before the Court of Appeal, however, Gitxaala Nation raised two broad issues:
(a) one issue the lower court did not address, namely, whether UNDRIPA and/or DRIPA apply a presumption of conformity with UNDRIP to Canada’s domestic laws, or to the laws of British Columbia, and in either case including the common law; and
(b) an issue that the lower court decided against, namely, whether a court can decide if a law is inconsistent with UNDRIP for purposes of engaging a duty of the BC government to consult with Indigenous peoples about aligning the law with UNDRIP.
2. The role of UNDRIP in interpreting laws
The first “interpretive issue” is of important to all statutory actors (like HPA or HPOA colleges) that must interpret and apply laws. The Court of Appeal came to several important conclusions.
- First, UNDRIP engages the common law presumption of conformity, due to Canada’s “obligations and solemn commitment” to apply and implement UNDRIP in domestic law. That commitment arose in part from UNDRIPA (section 4(a)) affirming that UNDRIP is a “universal international human rights instrument with application in Canadian law”. The common law presumption of conformity is bigger than any single statute: it is a judicial policy that requires Canada’s domestic laws – federal law, provincial law, and common law – to be construed consistently with international law, wherever possible. Canada has committed to UNDRIP as if it were a ratified convention. Accordingly, UNDRIP can influence not only domestic enactments, but also common law doctrines.
- Second, section 2(a) of BC’s DRIPA also operates (independently of IA s. 8.1(3)) to apply a presumption of conformity with UNDRIP to the laws of British Columbia.
- Third, the effect of section 8.1(3) of BC’s Interpretation Act is a presumption of conformity with UNDRIP applying to British Columbia enactments.
These commitments and statutes all mean that while UNDRIP does not create Indigenous rights per se, existing and future domestic laws must, on all these grounds, be interpreted (if possible) to provide space for Indigenous human rights as set out by UNDRIP. Indigenous rights, in turn, are human rights applying in the specific context of Indigenous peoples. Such rights were systemically denied by European powers, especially through laws, to allow such powers to, for example, take and use resources despite pre-existing Indigenous sovereignty and laws, and in BC in particular, despite a failure of the Imperial Crown to “buy” lands and resources through treaties.
3. The role of courts in assessing inconsistencies between laws and UNDRIP
Additionally (although of less immediate relevance to colleges), the court held that courts may address questions of consistency between laws and UNDRIP for purposes of the BC government’s duty to consult with Indigenous peoples under DRIPA section 3.
UNDRIP is, however, complex; as the Court pointed out, UNDRIP combines binding international rights and principles, minimum standards, and aspirations, such that an article-by-article approach is necessary. A decision-maker may therefore have to analyze “the source, nature, and reach” of the obligation, standard, or goal expressed in a relevant UNDRIP article.
4. Why UNDRIP matters to colleges under the HPA, and the forthcoming HPOA:
Health-related UNDRIP rights: UNDRIP addresses a broad range of human rights relating to health care. For example:
Article 2
Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of
discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.
Article 18
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen
by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
Article 23
Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous
peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.
Article 24
1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital
medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health
services.
2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.
Article 29
… 3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.
Article 31
1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. (Emphasis added)
Since UNDRIP also provides for self-government and ownership of their traditional territories (e.g., in Articles 4 and 26), UNDRIP also supports some degree of local law-making powers for First Nations. (Such powers are illustrated by the Nisga’a Final Agreement Act, RSBC 1999, c 2 [Nisga’a Act] which recognizes the right of Nisga’a Lisims Government to make laws about health services on Nisga’a lands, and to make laws regulating “Aboriginal healers” on Nisga’a lands that may override provincial laws.)
UNDRIP therefore appears to support (for example):
- a right of Indigenous applicants, clients, or patients to be free from discrimination (which may encompass, for example, licensure barriers and licensee misconduct that targets or disproportionately impacts Indigenous peoples);
- a right to participate in decision-making in matters that would affect their rights (which may, for example, require that colleges include Indigenous representatives or advisors in certain policy or standards processes);
- rights to preserve traditional health medicines and health practices (which may, for example, impact laws relating to reserved acts or misconduct);
- to be involved in designing and delivering their health programmes and health care institutions;
- to enjoy the highest attainable standard of physical and mental health (which may implicate discriminatory or other barriers to health care, such as the cultural competence of health care providers); and
- a right to some degree of governmental or regulatory control over health care within their respective territories.
Under the HPA: As has been the case since 2021, HPA colleges are already obliged to construe BC Acts and regulations (including bylaws) consistently with UNDRIP rights.
Under the forthcoming HPOA: The HPOA, which is to come into force on April 1, 2026, further provides
- “guiding principles” requiring (at HPOA s. 14(2)(b)) that statutory actors support and promote awareness of reconciliation with Indigenous peoples, UNDRIP, and the need to address “Indigenous-specific racism”; and
- An express duty of the board of each college, before making a bylaw, to consult with representatives of Indigenous governing bodies, where the bylaws is made with respect to discrimination or anti-discrimination measures to which Indigenous identity is relevant; to delivery of health services in accordance with Indigenous practices; and the use of restorative processes intended to reflect or be influenced by Indigenous practices (HPOA s. 384(2)(c)).
No one can predict the ultimate extent to which UNDRIP may impact the regulatory activities of colleges. UNDRIP is, however, clearly a factor that colleges must consider when addressing the meanings of laws that may impact Indigenous individuals and peoples.
Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430
Lisa C. Fong, K.C. and Michael Ng