UNDRIP in B.C. law: Court of Appeal confirms immediate effect and targets mineral claim regime UNDRIP in B.C. law: Court of Appeal confirms immediate effect and targets mineral claim regime

On December 5, 2025, the British Columbia Court of Appeal released its long‑awaited decision in Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 (the Decision). In a 2–1 split, the Court of Appeal allowed the appeals of Gitxaala and Ehattesaht First Nations (the Nations), holding that British Columbia’s Declaration on the Rights of Indigenous Peoples Act (DRIPA) incorporates the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into the province’s positive law with immediate legal effect. The province must take steps to resolve the inconsistencies between its mineral claims regime and UNDRIP rights and standards.

Factual background

The appeals arose from two petitions challenging the province’s mineral claims regime under the Mineral Tenure Act (the MTA). Under the MTA, as at the time of the initial challenge, “free miners” are entitled to register “mineral claims” over unclaimed Crown lands and conduct initial exploration without prior consultation with potentially affected First Nations. Claim registration confers exclusive exploration rights and authorizes a suite of initial on‑the‑ground activities, as well as the removal of specified quantities of material, before any permitting under the Mines Act, which permits miners to extract minerals on a commercial level.

The Nations sought, among other remedies, declarations that the mineral claims regime breached the Crown’s duty to consult under section 35 of the Constitution Act, 1982, and that it was inconsistent with rights recognized in UNDRIP and DRIPA. The province disputed that claim registration triggered the section 35 duty to consult and argued that, while DRIPA provides for an implementation of UNDRIP, it does not give UNDRIP independent legal force.

Lower Court’s decision

As  previously discussed in the October 2023 Osler Update: Supreme Court of British Columbia finds that Province has a duty to consult on mineral tenure claims, the chambers judge held that the province owes a duty to consult when registering mineral claims under the MTA. The chambers judge suspended the declaration for 18 months to allow the province to design and implement a system that allows for consultation.

On the UNDRIP/DRIPA issue, however, the chambers judge declined to grant the Nations’ requested declarations. The chambers judge held that section 2 of DRIPA did not implement UNDRIP into the province’s domestic law, and the obligations in section 3 of DRIPA to consult and cooperate with Indigenous peoples and take all measures necessary to ensure provincial laws are consistent with UNDRIP required ongoing cooperation (between the province and Indigenous peoples) to determine which laws are inconsistent with UNDRIP, but did not create justiciable rights or call upon courts to adjudicate “consistency”.

The Nations appealed only the UNDRIP/DRIPA rulings. The province did not appeal the section 35 declaration. In March 2025, the province replaced the old mineral claims regime with a new mineral claims consultation framework in response to the lower court ruling.

The Court of Appeal’s majority reasons

Justice Dickson, writing for the majority of the Court of Appeal, allowed the appeals, issuing a declaratory remedy and providing a framework for the legal effect of DRIPA and UNDRIP.

First, on the effects of DRIPA and UNDRIP on B.C. law, the majority found that UNDRIP engages the common law interpretative presumption of conformity with international law. The majority held that, even though UNDRIP is not binding as a treaty, it has been expressly recognized by Parliament as a universal human‑rights instrument with application in Canadian law. It must therefore be treated as a “weighty source” in the interpretation of Canadian law, consistent with the presumption of conformity, rather than as a merely “non‑binding” instrument to which modest, moderate, significant, or no weight may optionally be ascribed in the interpretive exercise. The majority explained that this interpretive mandate is justified by the widespread international support for UNDRIP, and Canada’s unqualified commitment to its application and implementation.

In addition, the majority also held that subsection 8.1(3) of the province’s Interpretation Act — which provides that “every Act and regulation must be construed as being consistent with [DRIPA]”— creates a rebuttable presumption of consistency between the province’s statutes and UNDRIP, akin to the common‑law presumption of conformity with international law. The majority held that subsection 2(a) of DRIPA, which “affirms the application” of UNDRIP to B.C. laws, brings UNDRIP to bear directly in construing provincial legislation and incorporates UNDRIP in its entirety into B.C. positive law. The majority interpreted subsection 2(b) of DRIPA, which states that a purpose of the Act is to “contribute to the implementation of UNDRIP”, to mean that the second purpose of DRIPA is “to add to the process of bringing UNDRIP into active effect.”

Notably, the majority held that section 3 of DRIPA, which provides that the government “must take all measures necessary to ensure the laws of British Columbia are consistent with DRIPA” in consultation and cooperation with the Indigenous peoples in B.C., imposes a positive obligation on the province to take “all steps, methods, and means (measures) necessary to ensure (make certain) that British Columbia laws clearly conform with the binding international rights, obligations, and principles aggregated in UNDRIP, and generally harmonize with the minimum standards and aspirations that it articulates (UNDRIP consistency)”. The majority held that the inconsistency between a B.C. law and UNDRIP triggers the province’s obligation to take action to develop the measures necessary to resolve the inconsistency, in consultation and cooperation with Indigenous peoples, and to implement those measures. Such measures may include legislative, executive or administrative action. In this case, the majority suggested that the province could decide to reform the MTA, which would mean placing proposed amendments before the B.C. legislature, or the Chief Gold Commissioner could take action at the policy level.

Second, on the issue of whether consistency between the province’s mineral claims regime and DRIPA and UNDRIP is justiciable, the majority rejected the chambers judge’s conclusion that section 3 did not call upon courts to adjudicate consistency. The majority held the question of consistency is fundamentally legal in nature and fit for judicial determination against objective standards. Denying a judicial forum to resolve threshold disputes over inconsistency would render the section 3 obligation effectively unenforceable and would be at odds with the honour of the Crown.

In the result, the majority granted a declaration that the Chief Gold Commissioner’s conduct in establishing and operating an online system that allows automatic registration of mineral claims — without prior consultation and cooperation of affected Indigenous peoples — is inconsistent with Article 32(2) of UNDRIP.

The Court of Appeal’s dissenting reasons

Justice Riley agreed that DRIPA incorporates UNDRIP into B.C. law with immediate effect, but would have dismissed the appeals given his view of DRIPA’s legal effect and the role that courts can and should play in achieving its aims.

Justice Riley held DRIPA’s legal effect is to mandate a process of “legislative reconciliation” led by the executive and overseen by the Legislature, not courtroom adjudication of “inconsistency” claims. He notes that section 3 of DRIPA assigns to the government, acting in consultation and cooperation with the Indigenous peoples in B.C., the responsibility to take all measures necessary to ensure the province’s laws are consistent with UNDRIP. DRIPA “is not built around, and does not contemplate, the identification and litigation of inconsistency in the courtroom”; rather, it directs executive action and legislative reform, with accountability through action plans and annual reports. On this reading, “s. 3 of the Declaration Act does not contemplate a role for the courts in adjudicating claims of inconsistency between UNDRIP and specific British Columbia laws”. Instead, courts may be called upon to interpret statutes consistently with UNDRIP under subsection 8.1(3) of the Interpretation Act, but not to pronounce on inconsistency at large.

On justiciability, Justice Riley held that asking courts to decide whether particular provincial laws are “inconsistent” with specific UNDRIP articles “would take the court outside its proper role in our constitutional democracy” and amount to the judiciary “inserting itself into the law reform process” that DRIPA assigns to the political branches. However, Justice Riley accepted that courts may enforce “specific and cognizable statutory duties” under DRIPA, such as the duty to consult and to take measures, where there is a failure to act. In this case, however, he considered the chambers judge’s s. 35 declaration sufficient to ensure the Crown meets its responsibilities.

Significance and takeaways

The Court of Appeal’s decision is significant for its findings on the domestic legal effect of UNDRIP and the operational force of DRIPA in B.C. While both the majority and the dissent agree that UNDRIP is incorporated into B.C. law with immediate effect, they diverge on its legal implications and on the role courts should play in achieving DRIPA’s aims.

The majority’s view is that DRIPA and UNDRIP now operate as an interpretive benchmark across B.C. law. Subsection 8.1(3) of the Interpretation Act creates a rebuttable presumption that provincial statutes and regulations must be construed consistently with DRIPA and, by extension, UNDRIP. Subsection 2(a) of DRIPA affirms UNDRIP’s application and integrates it into provincial positive law, and section 3 imposes a positive obligation on the Crown, in consultation and cooperation with Indigenous peoples, to take all measures necessary, whether legislative, executive, or administrative, to ensure consistency. On the majority’s approach, whether a law or administrative regime is inconsistent with UNDRIP is a justiciable question.

The dissent would limit the judiciary’s role in assessing claims of inconsistency between B.C. laws and UNDRIP. In Justice Riley’s view, section 3 of DRIPA assigns the task of aligning B.C. laws with UNDRIP to the executive and legislative branches, with consultation and reporting obligations, but without inviting courts to adjudicate whether particular provincial laws are “inconsistent” with specific UNDRIP articles.

Next steps are uncertain. The Premier has indicated that the province could seek leave to appeal to the Supreme Court of Canada, although it is more likely to consider legislative amendments to clarify the respective roles of the political branches and the courts in DRIPA’s alignment process. While subject to potential appeal, the decision remains binding law in B.C. and could have implications beyond the mining sector. Any provincial statutory or regulatory scheme that authorises “early stage” project activities with potential effects on natural resources will likely face heightened scrutiny for UNDRIP and DRIPA consistency.