Introduction

On December 5, 2025, the British Columbia Court of Appeal (“BCCA”) released a landmark decision in Gitxaala v British Columbia (Chief Gold Commissioner), 2025 BCCA 430 (“Gitxaala”). The judgment fundamentally reshapes how the United Nations Declaration on the Rights of Indigenous Peoples, UNGA, 33rd Sess., UN Doc A/RES/61/295 (2007) GA Res 61/295 (“UNDRIP”) informs and influences provincial law in British Columbia.

In a significant development, the BCCA confirmed that BC’s Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 (“DRIPA”) incorporates UNDRIP into BC’s positive law, giving it immediate legal effect as an interpretive standard across all provincial enactments. The Court further held that BC’s online mineral claims registration system (the “Mineral Claims Regime” or the “Regime”) is inconsistent with Article 32(2) of UNDRIP, as it permitted mineral claims to be granted without prior consultation with affected Indigenous peoples.

This decision has far-reaching implications for Indigenous Nations, environmental and resource regulators, and project proponents involved in land and resource authorizations across the province.

Background: A challenge to BC’s “Free Entry” mineral tenure system

In the Supreme Court of British Columbia, Gitxaala Nation (“Gitxaala”) and Ehattesaht First Nation (“Ehattesaht”) challenged the Mineral Claims Regime under the Mineral Tenure Act, RSBC 1996, c 292 (the “MTA”). The Regime allowed “free miners” to acquire mineral claims on Crown land without any prior consultation with Indigenous peoples. Gitxaala and Ehattesaht contended that the Regime was inconsistent with the Crown’s duty to consult under s. 35 of the Constitution Act, 1982, the honour of the Crown, and their rights recognized in UNDRIP and DRIPA.

The chambers judge agreed that the automatic granting of mineral claims without prior consultation breached the Crown’s s. 35 duty to consult. However, he held that:

  • DRIPA did not implement UNDRIP into BC law and that “UNDRIP remains a non-binding international instrument”; and
  • s. 3 of DRIPA did not create justiciable rights enabling courts to assess whether BC laws are consistent with UNDRIP.

Gitxaala and Ehattesaht appealed these findings.

The BCCA majority decision

The majority of the BCCA (per Justice Dickson and Justice Iyer) allowed the appeal, finding that:

  • DRIPA incorporates UNDRIP in its entirety into BC’s positive law with immediate legal effect;
  • s. 3 of DRIPA imposes a statutory duty on the Crown to consult and cooperate with Indigenous peoples to resolve inconsistencies between UNDRIP and BC laws;
  • the issue of consistency between UNDRIP and the MTA is a justiciable question; and
  • the Mineral Claims Regime is inconsistent with Article 32(2) of UNDRIP.

1. DRIPA incorporates UNDRIP into BC positive law

On appeal, the BCCA considered whether DRIPA implements UNDRIP and, if so, the extent of its effect on the laws of BC. Writing for the majority, Justice Dickson agreed with the chambers judge that DRIPA does not, on its own, implement UNDRIP by creating substantive rights. However, she rejected the characterization of UNDRIP as merely a “non-binding international instrument” with only “a limited optional interpretive role.” Instead, Justice Dickson held that DRIPA incorporates UNDRIP in its entirety into BC’s positive law with immediate effect, affirming UNDRIP as the interpretive lens through which provincial laws must be read and establishing the minimum standards against which BC legislation must be measured.

In short, the decision confirms that UNDRIP is not merely symbolic or aspirational, and instead it has immediate legal effect in BC.

2. Section 3 of DRIPA imposes a statutory duty on the crown

Section 3 of DRIPA states:

3 In 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 [UNDRIP].

The Court held that, on a proper interpretation, s. 3 of DRIPA imposes a statutory duty on the Crown to consult and cooperate with Indigenous peoples in identifying and addressing inconsistencies between BC laws and UNDRIP.

3. The consistency question is justiciable

Another key issue on appeal was whether courts can adjudicate the consistency of BC laws and UNDRIP. The Court agreed with Gitxaala and Ehattesaht that the chambers judge erred in his interpretation that s. 3 of DRIPA does not create justiciable rights.

The Court held that nothing in s. 3 prevents courts from assessing whether BC laws are consistent with UNDRIP and that determining legal consistency is a quintessentially legal question within the court’s jurisdiction. The Court also held that without judicial oversight, s. 3 becomes unenforceable, contrary to the purpose of DRIPA. Accordingly, BC laws may be challenged in court where they are inconsistent with UNDRIP. However, the courts will assess such inconsistency on a case-by-case basis.

4. The Mineral Claims Regime is inconsistent with UNDRIP

Article 32(2) of UNDRIP requires governments to consult and cooperate with Indigenous peoples to obtain free, prior and informed consent for projects affecting their lands, including mining activities:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

The Mineral Claims Regime provided for no consultation at all. As such, the Court declared the Regime inconsistent with Article 32(2) of UNDRIP because it permitted mineral claims to be granted without prior consultation and cooperation.

What this means going forward

Gitxaala represents a significant development in BC’s administrative and Aboriginal law jurisprudence, with the Court affirming:

  • UNDRIP’s immediate legal effect in BC through DRIPA;
  • that s. 3 of DRIPA imposes a justiciable enforceable duty on the Crown to align provincial laws with UNDRIP;
  • that courts can rule on consistency questions between BC laws and UNDRIP; and
  • that the Mineral Claims Regime was inconsistent with UNDRIP.

While BC has already begun reforming the Mineral Claims Regime, the implications of Gitxaala extend well beyond the mining sector.

The BC government has recently expressed an intention to amend DRIPA to narrow the scope of judicial interpretation of legislation. For now, however, currently, Gitxaala remains binding law in BC.

For project proponents, regulators, and Indigenous Nations navigating the implications of Gitxaala, proactive legal advice will be essential as British Columbia continues to align its regulatory regimes with UNDRIP and DRIPA. If you have questions about how this decision may affect existing or proposed projects, consultation processes, or provincial approvals, please contact a member of Miller Thomson’s Environmental Law and/or Indigenous Legal Services groups.