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Gitxaała v British Columbia (Chief Gold Commissioner) (Gitxaała), issued by the British Columbia Court of Appeal (BCCA) on December 5, 2025, is a split decision on the nature of the legal effect of British Columbia's Declaration on the Rights of Indigenous Peoples Act (Declaration Act) and the role that courts can and should play in achieving its aims.1 This insight discusses the decision, the BC government's reaction and the implications for economic development in BC.
Background
In 2023, the Gitxaała Nation and the Ehattesaht First Nation (the Appellants), challenged BC's mineral tenure system (the Mineral Claims Regime) on the grounds that it granted mineral claims without consulting affected Indigenous groups. The Appellants sought a variety of remedies, including: a declaration that the Mineral Claims Regime breached the Crown's duty to consult under section 35 of the Constitution Act, 1982; a declaration that the regime was inconsistent with BC's commitments in the Declaration Act to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); the quashing of specific mineral claims; and injunctive relief against future mineral claims.
In the lower court decision, Justice Alan Ross declared that BC's Mineral Tenure Act, and particularly the establishment of an online system for the automatic registration of mineral claims without consultation with Indigenous groups, breached the Crown's duty to consult.2 Justice Ross suspended this declaration for 18 months to allow the BC government to create a consultation regime prior to the issuance of future mineral claims. However, he dismissed the Appellants' other claims, including their request for a declaration that the Mineral Claims Regime was inconsistent with UNDRIP. In March 2025, the BC government introduced a new consultation framework for the Mineral Tenure Act in response to the decision.
The appeal
On appeal, the BCCA considered the extent to which the Declaration Act implemented UNDRIP and whether the Declaration Act allowed courts to declare BC legislation inconsistent with UNDRIP. In a 2-1 decision, the BCCA held that UNDRIP applies to BC's positive law and that courts can adjudicate the consistency of BC legislation with UNDRIP.3
Writing for the majority, Justice Gail Dickson held that the Declaration Act applies "UNDRIP in its entirety into BC positive law."4 Specifically, Justice Dickson asserted that the Declaration Act imposes with immediate effect a positive obligation on the BC government to take all steps to ensure that BC laws conform with UNDRIP. Importantly, Justice Dickson rejected the notion that the BC legislature intended to limit the application of the Declaration Act to acts of legislative reform. Justice Dickson held that if the legislature sought to limit the application of UNDRIP, they would have expressed their intent to do so, but that the absence of restrictive provisions in the Declaration Act signalled an intent by the legislature to apply UNDRIP broadly across all BC laws.5
The Appellants argued that Justice Ross erred when he declared that the Declaration Act did not allow courts to adjudicate whether BC legislation is inconsistent with UNDRIP. Justice Dickson agreed with the Appellants, holding that, as a matter of statutory interpretation, the Declaration Act imposes a positive statutory obligation on the BC government to ensure the consistency of BC laws with UNDRIP, and that the language of the Declaration Act was sufficiently broad to not preclude judicial intervention.6 She ultimately concluded that the Mineral Claims Regime was inconsistent with article 32(2) of UNDRIP.
In dissent, Justice Paul Riley held that the Declaration Act does not give courts the ability to adjudicate inconsistencies between BC legislation and UNDRIP. He asserted that the Declaration Act is a process of law reform that the legislature intended to retain ultimate responsibility over.7 Justice Riley further held that acts of legislative reconciliation, such as the Declaration Act, are matters exclusively within the purview of the executive and legislative branches of government.8 Therefore, for Justice Riley, the consistency of the Mineral Claims Regime with UNDRIP was not justiciable because it was an adjudication of the law reform process, which is a matter solely for the executive and legislative branches of government.
Reaction and implications
Condemnation of the Gitxaała decision has been swift, with BC Premier David Eby stating that the decision puts courts "in the driver's seat" rather than the legislature.9 BC's opposition has called for the Declaration Act to be repealed, but Premier Eby has rejected this idea, pledging to keep the Declaration Act in force with amendments.10
Gitxaała introduces uncertainty by opening other BC legislation to litigation on the basis of inconsistency with UNDRIP. However, amendments to the Declaration Act could address the role of the courts in adjudicating the consistency of BC laws with UNDRIP and may even remove the ability for courts to determine whether BC laws are consistent with UNDRIP. The scope and timing of the amendments is not yet clear.
Gitxaała comes at a time when governments in Canada are actively pursuing an agenda focused on economic development. For example, the BC government has initiated the building of a six billion dollar transmission line on BC's north coast, which is expected to help develop BC's mining and LNG sectors, and facilitate port expansions.11 As well, the Carney government, through the Building Canada Act, has designated six projects in BC for streamlined regulatory assessments and approvals, including LNG Canada Phase 2 and the Red Chris Mine Expansion.12 In this environment, the BC government recognizes the need to amend the Declaration Act to facilitate the continued approval and development of large infrastructure projects. This demonstrates a desire by the BC government to retain control over its legislative processes in pursuit of broader economic development goals.
Footnotes
1. 2025 BCCA 430 [Gitxaała].
2. Gitxaała v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680.
3. Gitxaała at paras 6-7.
4. Ibid at para 143.
5. Ibid at para 147.
6. Ibid at para 177.
7. Ibid at 244.
8. Ibid at para 245.
9. Andrew Kurjata, "Eby says B.C. may revise DRIPA legislation, worries court is 'in driver's seat" (5 December 2025), online:< https://www.cbc.ca/news/canada/british-columbia/eby-dripa-gitxaala-ruling-9.7005087>.
10. Amy Judd, "BC Conservative Want David Eby to Reconvene Legislature, Repeal DRIPA" (8 December 2025), online: < https://globalnews.ca/news/11568633/bc-conservatives-david-eby-reconvene-legislature-repeal-dripa/>.
11. Government of British Columbia, "New Legislation Powers Economy with Clean Energy, North Coast Transmission Line" (20 October 2025), online:<https://news.gov.bc.ca/releases/2025ECS0044-001032>.
12. Major Projects Office, "Projects and Transformative Strategies Map," online:< https://www.canada.ca/en/privy-council/major-projects-office/projects/map.html>.
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