Gitxaala v. British Columbia: BCCA finds that UNDRIP is part of BC and Canadian law, and BC’s mineral claim system is inconsistent with UNDRIP

Monday, December 8, 2025

Introduction

On December 5, 2025, the British Columbia Court of Appeal released its decision in Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430, with the majority of the Court of Appeal concluding that BC’s mineral claim regime is inconsistent with UNDRIP.^[1]

This decision is an important victory for Indigenous groups because the majority of the Court of Appeal found that UNDRIP is part of BC and Canadian law with “immediate legal effect,” and attracts the presumption of conformity.[2] This means that BC and Canadian laws must be interpreted consistently with UNDRIP.[3] The majority of the Court of Appeal also found that certain UNDRIP rights have independent status at international law, which means that these UNDRIP rights are a “weighty source of interpretation” for laws across the country.[4] However, the majority noted that not all UNDRIP rights have the same status at international law, so what is required for a law to be consistent with UNDRIP will vary case-by-case.[5]

OKT lawyers Kevin Hille and Jesse Abell were honoured to represent intervener Cheona Metals Inc on the appeal. Cheona Metals is committed to an UNDRIP-compliant mining regime, and supported Gitxaala Nation and Ehattesaht First Nations on the appeal. Cheona Metals made submissions about the status of UNDRIP in Canadian and BC law, the significance of the presumption of conformity, customary international law, and international treaties and conventions in domestic law.

What is the case about?

Gitxaala and Ehattesaht brought applications to the British Columbia Supreme Court for declarations that BC’s mineral grant system is inconsistent with the duty to consult and with UNDRIP. In Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680, the chambers judge found that BC’s mineral grant system was inconsistent with the duty to consult, because it does not require proponents to consult with Indigenous peoples before staking mineral claims.[6] However, the chambers judge found that UNDRIP is not part of BC law, and courts cannot determine whether the laws of BC are consistent with UNDRIP because this question is not justiciable.[7]

Gitxaala and Ehattesaht appealed the chambers judge’s decision. On appeal, Gitxaala and Ehattesaht argued that the chambers judge erred by finding that UNDRIP is not part of BC law, and declining to find that the mineral grant system is inconsistent with UNDRIP. The provincial respondents argued that the chambers judge correctly found that UNDRIP is a non-binding international instrument that is not implemented in Canadian law, and does not engage the presumption of conformity, and correctly found that the consistency question is not justiciable.

What did the British Columbia Court of Appeal decide?

On appeal, the majority of the Court of Appeal allowed the appeal. The majority agreed with Gitxaala and Ehattesaht that the chambers judge interpreted UNDRIP and BC’s Declaration on the Rights of Indigenous Peoples (“Declaration Act”) too narrowly. The majority found that UNDRIP is part of BC law, and constitutes the “minimum standards” against which BC laws must be measured.[8] The majority held that the chambers judge erred in finding that the consistency between UNDRIP and BC’s mineral grant system is not justiciable.[9] The majority declared that BC’s mineral grant system is inconsistent with UDNRIP because it does not allow for consultation.[10]

The dissent agreed with the majority that UNDRIP is part of BC’s positive law with immediate legal effect, but disagreed about the Declaration Act’s legal effect.[11] The dissent found that the Declaration Act does not give the court a role to adjudicate claims of inconsistency between BC laws and UNDRIP, and the question of inconsistency between BC laws and UNDRIP is not justiciable.[12] The dissent would have dismissed the appeals.[13]

Key Parts of the Majority’s Decision

UNDRIP is part of BC law, and should be used to interpret BC law

The majority held that the chambers judge interpreted the Declaration Act too narrowly. Properly interpreted, the Declaration Act incorporates UNDRIP into BC’s positive law with “immediate legal effect”.[14] This does not mean that the Declaration Act creates substantive new legal rights or obligations arising from UNDRIP.[15] Instead, UNDRIP serves as a lens for interpreting BC laws, and UNDRIP constitutes the “minimum standards” to measure BC laws against.[16] The Declaration Act and the Interpretation Act, s. 8.1(3), impose a statutory rebuttable presumption of consistency between BC laws and UNDRIP, which means that BC laws must be presumed to be interpreted consistently with UNDRIP unless there is express legislative intent otherwise.[17]

However, the majority indicated that not all UNDRIP rights have the same status at international law, so what is required for a law to be consistent with UNDRIP will vary case-by-case.[18] The majority clarified that UNDRIP contains a mix of binding international rights and obligations (specific legal entitlements and duties), general principles (guiding truths or values), minimum standards (levels of measurement) and aspirations (goals).[19] Therefore, to determine if a law is consistent with UNDRIP, it will likely be necessary to determine the source, nature and scope of the relevant UNDRIP provisions.[20] If the UNDRIP provision at issue expresses a binding international right, the law must clearly conform with it.[21] But if the UNDRIP provision expresses an aspiration, it may be enough for the law to be generally harmonious with that aspiration.[22]

UNDRIP is part of Canadian law, and should be used to interpret Canadian law

The majority also recognized that UNDRIP has been incorporated into Canadian law and attracts the presumption of conformity.[23] The majority held that although UNDRIP is not formally binding as a treaty, by enacting the federal United Nations Declaration on the Rights of Indigenous Peoples Act (“Federal Declaration Act”), Parliament incorporated UNDRIP into Canada’s domestic law, as the Supreme Court has recognized.[24] This approach is consistent with our dualist system of incorporating international law into domestic law by legislative action, and gave domestic legal effect to Canada’s obligations and commitments in relation to UNDRIP.[25] This means that UNDRIP “should be applied as a weighty source for the interpretation of Canadian law in accordance with the presumption of conformity”.[26]

Some UNDRIP rights have customary international and convention law status, and should be used to interpret the law across the country

The majority also held that certain UNDRIP rights – including Indigenous peoples’ right to self-determination – have status at international law, as they are principles of customary international law and contained in binding international treaties.[27] The majority also suggested that Indigenous peoples’ rights to land and the right to be consulted in relation to state action affecting their lands or territories are generally accepted as matters of international law.[28]

This means that these UNDRIP rights independently attract the common law presumption of conformity.[29] Laws must be presumed to conform with these UNDRIP rights, unless there is express legislation stating otherwise, even in provinces and territories where there is no UNDRIP legislation. As a result, across the country, whenever it is relevant, these UNDRIP rights should be applied as a “weighty source” for interpreting the law.[30]

BC government officials have to act consistently with the promise that UNDRIP applies to BC law

Further, the majority found that the Declaration Act contains a “binding Crown promise” to act as though the existing rights in UNDRIP apply to BC laws, including the common law.[31] This means that BC government officials have to act consistently with that promise and act diligently to fulfill that promise, according to the honour of the Crown.[32] So even outside of court, BC government officials have to act as though UNDRIP applies. And this means that UNDRIP can and should inform the interpretation of the common law duty to consult, and Indigenous groups can raise their s. 35 rights and their UNDRIP rights in relation to the mineral grant system in consultation.[33]

The question of consistency between the mineral grant regime and UNDRIP is justiciable

The majority held that the chambers judge erred in determining that the question of consistency between BC laws and UNDRIP is not justiciable.[34] The majority held that the Declaration Act, s. 3 – which requires the Crown, in consultation and cooperation with Indigenous peoples, to take all measures necessary to ensure BC laws conform with UNDRIP – does not prevent courts from determining if a BC law is consistent with UNDRIP or oust the courts’ jurisdiction to do so when asked by an Indigenous group.[35] The question of consistency is fundamentally legal in nature, and can be adjudicated by the court against an objective legal standard.[36] Further, it is the existence of inconsistency between a BC law and UNDRIP that triggers the Crown’s duty to develop measures to resolve the inconsistency. To find that the question of consistency was not justiciable would mean that if the Crown denied the existence of any inconsistency, Indigenous groups would be left without a remedy.[37]

The mineral grant regime is inconsistent with UNDRIP

As a result, the majority found that BC’s mineral grant regime “is manifestly inconsistent” with UNDRIP’s Article 32(2), which guarantees Indigenous peoples the right to be consulted on projects that will affect them.[38] The majority held that the existence of Indigenous peoples’ right to be consulted in connection with state actions affecting their lands is generally accepted as a matter of international law, even if the precise content of the right is a matter for debate.[39] The mineral grant regime was inconsistent with it.[40]

Looking Forward

This appeal is a big victory for Indigenous peoples in BC and across the country. The majority of the Court of Appeal recognized that UNDRIP is part of BC and Canadian law, and BC and Canadian law must be interpreted consistently with UNDRIP. What exactly is required for laws to be consistent with UNDRIP remains to be determined on a case-by-case basis. And which specific UNDRIP provisions – other than the right to self-determination[41] – are binding international rights that must be “clearly conform[ed]” with remains to be seen.[42] The majority explicitly left open the question of whether the right to free, prior and informed consent (“FPIC”) is a binding international right that Canadian and BC laws must “clearly conform” with.[43] The majority also recognized that this will have big implications for BC lawyers, who will have to become more familiar with international law.[44] But this is still an important step forward in recognizing Indigenous peoples’ inherent rights, as expressed in UNDRIP.

[1] Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430, at para. 193 [“Gitxaala BCCA”].

[2] Gitxaala BCCA, at para. 7, see also para. 78.

[3] Gitxaala BCCA, at paras. 7, 78.

[4] Gitxaala BCCA, at paras. 66, 78.

[5] Gitxaala BCCA, at paras. 98-100, 130.

[6] Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680, at para. 14 [“Gitxaala BCSC”].

[7] Gitxaala BCSC, at para. 14.

[8] Gitxaala BCCA, at para. 7.

[9] Gitxaala BCCA, at para. 175.

[10] Gitxaala BCCA, at para. 200.

[11] Gitxaala BCCA, at paras. 201, 203-205, 214, per Riley J (dissenting).

[12] Gitxaala BCCA, at paras. 201, 203-205, 214, per Riley J (dissenting).