Another B.C. court affirms UNDRIP as legally binding

B.C.'s Court of Appeal has declared the province’s mineral claims system is inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples.

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In a divided ruling further eroding certainty for British Columbia’s mining sector and private property rights, the province’s Court of Appeal has declared the province’s mineral claims system is inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), opening the door to more veto-like powers for First Nations over resource development.

UNDRIP is a 2007 global agreement that recognizes Indigenous rights to their lands, including the need for governments to consult and get “free, prior, and informed consent” before approving projects that affect those lands.

B.C.’s provincial government passed its own law in 2019 called the Declaration on the Rights of Indigenous Peoples Act (DRIPA), which aims to align provincial laws with UNDRIP.

Thursday’s 3-2 decision in Gitxaala Nation v. British Columbia (Chief Gold Commissioner) partially overturned a lower court decision, signalling a substantive shift in how provincial laws may be interpreted—and potentially redesigned—according to UNDRIP.

Writing for the majority, the decision says that the lower court judge “erred in adopting an unduly narrow approach to the legal effect of the Declaration Act and UNDRIP.”

“Properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect,” the majority continues. “It (UNDRIP) affirms the interpretive lens through which BC laws must be viewed and the minimum standards against which they should be measured.”

Paragraph 7 of the decision further reiterates the government’s “statutory duty” to “consult and cooperate with the province’s Indigenous peoples in addressing unresolved inconsistencies between UNDRIP rights and standards, on the one hand, and, on the other, the laws of British Columbia.”

In plain English, this means UNDRIP has new, and very sharp, teeth when it comes to shaping the law in Canada’s westernmost province.

While the decision does not instantly rewrite all provincial statutes, it signals that courts will now expect legislation—including natural resource laws—to be interpreted through a UNDRIP-aligned lens unless the Legislature clearly says otherwise.

At its core, the appeal case was about B.C.’s mineral claims system — a system that dates back to colonial-era laws from the 1800s.

Under the Mineral Tenure Act, passed in the 1850s, anyone with a “free miner” certificate can go online and quickly register a claim to explore and potentially mine minerals on Crown government-owned land.

This happens automatically, without any upfront check or discussion with Indigenous communities.

Two First Nations—the Gitxaala Nation (from areas around Banks Island) and the Ehattesaht First Nation (from parts of Vancouver Island)—challenged this system in court.

They argued that granting these claims without consulting them “harms their cultural, spiritual, economic, and governance rights over their traditional territories,” which would be inconsistent with DRIPA and the principles of UNDRIP.

The B.C. Supreme Court had previously ruled that the automatic system breaches the Crown’s constitutional duty to consult, though it stopped short of declaring DRIPA itself legally binding.

The Appeal Court’s decision, while not definitively elevating UNDRIP to the status of fully enforceable provincial law, does signal a more assertive role for UNDRIP-driven interpretation.

It increases pressure on the province to overhaul mineral-tenure processes in ways that embed early, good-faith consultation and aim toward consensual decision-making, as contemplated in provisions such as UNDRIP Article 32.

This shift comes on the heels of another high-profile case, Cowichan Tribes v. Canada, which amplified broader debates about the intersection of Aboriginal title, private property, and resource development in B.C.

As noted by political commentator Caroline Elliott in an X post responding to the Court of Appeal’s decision in the Gitzaala Nation case, “this is the same Court that will hear the Cowichan appeal.”

Although the legal ramifications of such a case is still uncertain, both cases reflect an environment in which provincial laws, longstanding property assumptions, and Indigenous jurisdiction in B.C. are all in a state of flux.