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The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) was adopted as a UN General Assembly resolution in 2007.
A General Assembly resolution is not a treaty or convention. States do not sign it. States do not ratify it. Such resolutions are not legally binding on nations at international law, nor are they legally binding in Canadian law.
Despite its non-binding status, the UNDRIP was a controversial resolution for those countries with significant Indigenous populations. This was in large measure because of provisions that purport to require the “free, prior and informed consent” of Indigenous groups, and which recognise such groups as having “the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”. Countries with significant Indigenous populations expressed strong concerns about the substance of the UNDRIP, the nature of its drafting and the manner in which it was adopted. Such comments included the following:1
- The Declaration on the Rights of Indigenous Peoples, if it were to encourage harmonious and constructive relations, should have been written in terms that are transparent and capable of implementation. Unfortunately, the text that emerged from that failed process is confusing and risks endless conflicting interpretations and debate about its application. (USA)
- Unfortunately, the provisions in the Declaration on lands, territories and resources are overly broad and unclear and are susceptible of a wide variety of interpretations, discounting the need to recognize a range of rights over land and possibly putting into question matters that have already been settled by treaty in Canada. (Canada)
- By voting against the adoption of this text, Canada puts on record its disappointment with both the text’s substance and the process leading to it. For clarity, we also underline our understanding that this Declaration is not a legally binding instrument. It has no legal effect in Canada, and its provisions do not represent customary international law. (Canada)
- The text clearly does not enjoy consensus support. It has not been duly endorsed by all interested parties. Furthermore, in the course of this session, a non-transparent format was chosen for work on the document. That ensured that a group of countries, on the territory of which live a significant number of those who may be considered indigenous peoples, was excluded at a decisive stage from the negotiation process. Such an approach is a source not only of regret to us, but also of fundamental disagreement. We hope that the manner in which the declaration is to be adopted will not set a negative precedent for the General Assembly’s activities or for the United Nations work in developing new norms and standards. (Russia)
While Canada did not vote in support of the UNDRIP in 2007, in 2010 the government under then Prime Minister Stephen Harper changed its position – issuing a statement declaring support for the UNDRIP, while characterizing it as “aspirational” and “a non-legally binding document that does not reflect customary international law nor change Canadian laws.”2
UNDRIP Legislation in Canada
In 2019, British Columbia passed the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”), which contains various provisions related to steps that must be taken to implement the UNDRIP in BC. While the DRIPA does not make the UNDRIP the law of BC per se, in 2021 BC also added a term to its Interpretation Act requiring courts to construe all provincial laws “consistent with” the UNDRIP.
The federal government followed suit with similar legislation in 2021, called the United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDRIP Act”). Unlike BC however, the federal government did not amend the federal Interpretation Act.3
Northwest Territories passed comparable legislation in 2023.4
The Courts’ Approach to UNDRIP to Date
Despite its non-binding nature, the UNDRIP has taken on significant legal life in Canada. It has been relied upon, in various ways, to affect some very important recent decisions from Canadian courts, including cases:
- Acquitting members of the Mohawk Nation of charges related to importing significant quantities of tobacco from the United States without paying federal excise taxes;5
- Finding Aboriginal title to co-exist over private fee simple lands in a significant area in Richmond, British Columbia;6
- Declaring the BC mineral title regime contrary to the UNDRIP;7
- Allowing federal Indigenous child welfare law to take precedence over provincial child welfare legislation;8 and
- Quashing an approval for a nuclear waste storage facility issued by the Canadian Nuclear Safety Commission.9
US Tribal Groups’ Reliance on UNDRIP
It is not only Canadian Indigenous groups that have been relying on the UNDRIP in Canadian courts. US Tribes are now also doing so, following the Supreme Court of Canada’s 2021 holding that US Indigenous people could have constitutionally protected Aboriginal rights in Canada.10
While no case has yet been decided on the question of what UNDRIP rights US Tribes can assert in Canada, cases presently working their way through the system include the following:
- A civil claim filed in September 2025 by the Confederated Tribes of the Colville Reservation on behalf of the Sinixt (a Washington State-based tribe) challenging amendments to the BC School Act and a related ministerial order that define “First Nation” in a way that excludes the Sinixt, as they are not a “band” under the Indian Act. The claim argues, among other things, that these amendments are inconsistent with the UNDRIP.11
- Another civil claim also filed in September 2025 by the same US Tribes, challenging a BC policy to provide consultation to U.S. Tribes at the “notification” level.12
- A petition for judicial review filed in November 2025 by a coalition of Alaska-based tribes alleging that BC’s refusal to consult them on major mining projects in northwest BC—including the Eskay Creek Gold/Silver Project—contradicts BC’s commitments under the DRIPA.13
This issue has received significant attention in the BC Legislature, with Opposition members stating:
Trevor Halford: … Well, now the Eskay Creek project that has, as the Premier says, potential to bring over 1,000 jobs into northwest B.C. is facing court action. …
But here’s the problem. While this government flip-flops on DRIPA, an Alaskan-based tribal organization is using the exact same legislation that this Premier brought in, once in 2019 and then with the Interpretation Act in 2020, to stop the project.
We now know that U.S. tribes have filed an unknown number of legal cases against the province and are now using DRIPA to hold back B.C.’s economy.14
Claire Rattée: It is becoming clear that DRIPA is now a direct threat to our sovereignty in B.C. It has been weaponized by U.S.-based tribes and puts B.C. projects at risk.
After the Gitxaała decision, the Premier admitted that at least 20 cases against the province have already been amended, and the Minister of Mining and Critical Minerals acknowledged last week that a coalition of Alaskan tribes has filed to challenge the approvals of the Eskay Creek mine, a project that this government has repeatedly pointed to as being a DRIPA success in partnership with the Tāłtān Nation.15
Possible Impacts on the Building Canada Act and Federal Nation Building Agenda
In 2025, Parliament passed the Building Canada Act, the purpose of which is to expedite the approval of designated projects that are deemed to be in the “national interest”. The Act has not yet been used to permit any projects, but the Assembly of First Nations recently debated a resolution calling on the government to refuse to approve any project that does not have the “free, prior and informed consent” of Indigenous groups.16
The Building Canada Act does not contain substantive provisions regarding the UNDRIP. It does, however, contain a preamble section that states:
Whereas the Government of Canada is committed to respecting the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982 and the rights set out in the United Nations Declaration on the Rights of Indigenous Peoples;
The Act contemplates a regulatory process under which projects declared by the Governor in Council to be in the national interest are deemed to be approved under otherwise applicable laws. Indigenous consultations must occur before such designations are made, and resulting authorizations will still be subject to Indigenous consultation that may be relevant to setting permit terms and conditions. But the Act does not make clear whether or how the preamble’s reference to UNDRIP may have application in this context. This is an important issue given the following statements of the Supreme Court of Canada in the 2024 Quebec Child Welfare reference:
[4]… Recognized by Parliament as “a universal international human rights instrument with application in Canadian law”, the Declaration has been incorporated into the country’s positive law by the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 (“UNDRIP Act”)…
[15] In 2021, Parliament enacted the UNDRIP Act, s. 4(a) of which affirms the Declaration “as a universal international human rights instrument with application in Canadian law”. It is therefore through this Act of Parliament that the Declaration is incorporated into the country’s domestic positive law….
[59] By enacting a binding affirmation, Parliament has bound the federal government to the position it has affirmed as a matter of statutory positive law (see, e.g., Wilkins, at pp. 184‑85). This is because, as explained above, government actors are bound by laws that create, structure and limit their powers…
One can reasonably expect any legal challenges to the Building Canada Act or related federal approvals for projects deemed in the national interest will rely, at least in part, on the UNDRIP and the Quebec Child Welfare reference. And while the federal government may be counting on its ability to achieve Indigenous consensus through things like loan guarantees, equity ownership, and financial benefits to Indigenous groups, history shows that even where strong support exists, individual holdouts can emerge. Achieving 100% consensus, particularly within a compressed timeframe, can be a very tall order.
Similarly, in a recently filed legal challenge to the approval to dredge Burrard Inlet to allow greater shipping capacity for the federally owned TMX pipeline, the Tsleil-Waututh First Nation is expressly relying on the UNDRIP to assert that Canada has, over and above the regular duty to consult under Canadian law:
heightened obligations – that it failed to discharge – to design a process geared from the outset at a mutually accepted arrangement… United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14, s 4 and Annex, Article 19”17
Where Will the Courts Ultimately Land?
Several of the cases discussed above are pending appellate review, including Gitxaała, which was granted leave to appeal to the Supreme Court of Canada. No date has yet been set for the hearing.
No one can predict with certainty where the Courts will ultimately land on these cases in terms of the UNDRIP and its legal effect within Canada, though the Quebec Child Welfare reference suggests the Supreme Court of Canada is not particularly inclined to judicial restraint in this context.
There is also a pending case in British Columbia on the question of whether the DRIPA is unconstitutional and thus of no legal force or effect. Some of the grounds advanced in that case are specific to the BC jurisdiction, but others could have relevance to the federal UNDRIP Act, including relief sought:
A. A declaration that DRIPA is unconstitutional and inconsistent with section 35 of the Constitution Act, 1982 and is, to the extent of such inconsistency, of no force and effect.
[…]
E. A declaration that section 3 of DRIPA violates the principle of parliamentary supremacy by purporting to direct the substance of legislation that must be passed by future governments; …18
The trial in this case is presently scheduled for a 16-day hearing commencing November 22, 2027.19
Will Legislatures Take Further Action?
British Columbia has recently been going through a very contentious period concerning the DRIPA — one that nearly brought down the government itself.20 After numerous statements of intention to amend or suspend the DRIPA, the government eventually backed down and indicated it planned to consult further with First Nations leadership for over a six-month period, which ends in October.
The new leader of the BC Official Opposition has publicly committed to repealing the DRIPA if elected – with the next provincial election scheduled for October 2028.21
So far, the Government of Canada under Prime Minister Mark Carney has not expressed any concern with, or intention to repeal or modify, the UNDRIP Act (which was enacted under Prime Minister Justin Trudeau). However, Indigenous rights issues have started to receive greater attention in the federal Parliament21—particularly since the August 2025 decision in Cowichan Tribes v. Canada, which found Aboriginal title over private property. It remains to be seen whether the federal UNDRIP Act will become as significant and controversial an issue as the BC DRIPA has proven to be. But given the potential implications of the federal government’s Nation Building Agenda, it would be a reasonable bet that the federal UNDRIP Act will attract considerably more attention—and potentially raise significant complications—as Canada pushes forward with plans to advance major projects at a record pace.
Footnotes
1 United Nations General Assembly, 61st Session, 107th Plenary Meeting.
2 Canada’s Statement of Support on the United Nations.
3 Northwest Territories also did not amend its Interpretation Act as BC did, but its UNDRIP statute does contain a similar interpretative provision.
4 The BC and Northwest Territories legislation includes provisions that permit agreements with Indigenous groups to be given formal “consent” or “joint” decision-making powers under law. The federal legislation does not contain such a provision.
5 R. c. Montour, 2023 QCCS 4154 (decision of the Quebec Court of Appeal pending). The Court determined that the UNDRIP Act demonstrates that UNDRIP is an interpretative tool of Canadian law having the weight of a binding international instrument (see para. 1194).
6 Cowichan Tribes v. Canada, 2025 BCSC 1490. The Court relied in part on the DRIPA and s. 8.1 of the Interpretation Act in concluding that the “indefeasibility” provisions of the BC Land Title Act do not protect against Aboriginal title claims (see paras. 2257-2262), and that Aboriginal title is a “prior and superior” interest (see para. 2193). (The authors are counsel to the largest private landowner impacted by the decision).
7 Gitxaała v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 (leave to appeal to SCC granted 2026 CanLII 47879 (SCC)). The Court determined that the DRIPA incorporates the UNDRIP into the positive law of BC with immediate effect and affirms the interpretative lens through which BC laws must be viewed and the minimum standards against which they are to be measured (see para. 7).
8 Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5. The Court interpreted the UNDRIP Act as intending to be a concrete legislative measure to implement the UNDRIP in Canadian law (see para. 45), and the practical effect as being to make Canadian law more consistent with the UNDRIP (see para. 86).
9 Kebaowek First Nation v Canadian Nuclear Laboratories, 2025 FC 319 (appeal to the Federal Court of Appeal under reserve). The Court determined that the UNDRIP must be used to guide interpretation of the section 35 framework and is to be used to interpret the Crown’s analysis of the duty to consult and accommodate (see paras. 82, 128).
10 See R. v. Desautel, 2021 SCC 17.
11 Court File No. NEL-S-S-23807, Notice of Civil Claim filed September 3, 2025; The Sinixt Launch Dual Constitutional Challenges Against BC Government Over Discriminatory Exclusion from Land Consultation and Education.
12 Court file NEL-S-S-23806, Notice of Civil Claim filed September 3, 2025.
13 Southeast Alaska Tribes Challenge BC in Court Over Failure to Consult on Mining Projects; Alaskan tribes sue B.C. gov’t over mines in far northwest.
14 Hansard Content | Legislative Assembly of BC (4 May 2026).
15 Hansard Content | Legislative Assembly of BC (4 May 2026).
16 AFN Annual General Assembly – Assembly of First Nations.
17 Notice of Application, paragraph 71, Federal Court File T-3101-26.
18 2026 02 09 PHARA Notice of Civil Claim at page 22.
19 The authors are counsel to the plaintiff Pender Harbour and Area Residents Association in that case.
20 See, for example, How DRIPA drove the B.C. government to a crisis point | CBC News and Vaughn Palmer: DRIPA troubles dragging down David Eby’s government | Vancouver Sun.
21 Conservative Party of British Columbia (4 August 2026).
22 See Debates of the House of Commons – Hansard No. 119 – 45-1 (7 May 2026).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
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