The British Columbia Court of Appeal’s recent decision in Gitxaala v British Columbia (Chief Gold Commissioner) (“Gitxaala“) dramatically increases the ability of Indigenous rights and title holders to use the United Nations Declaration on the Rights of Indigenous People (“UNDRIP“) to advance and protect their interests. This article summarizes the decision and highlights two ways we have begun using this decision in our advocacy in British Columbia and across the country:
- UNDRIP may expand the Duty to Consult and Accommodate (“DTCA“); and
- UNDRIP may be enforceable in the courts where the Crown is not delivering on its promise to recognize and implement UNDRIP rights.
What Did the Court of Appeal Say in Gitxaala?
The Gitxaala decision was released on December 5, 2025. The case concerned a challenge to British Columbia’s mineral tenure regime, which permits automatic mineral claim registration within Indigenous territories without consultation. The appeal focused on the interpretation and legal effect of British Columbia’s Declaration on the Rights of Indigenous Peoples Act (“DRIPA“) and UNDRIP, including whether inconsistencies between these instruments and the regime operating under the Mineral Tenure Act could open the door to judicial review.
The majority of the Court held that the DRIPA functions as a form of rights recognition legislation like An Act Respecting First Nations, Inuit and Métis Children, Youth and Families. Rights recognition legislation binds government actors and requires them to act as if UNDRIP rights exist as enforceable rights in Canada, whether or not a court has conclusively determined that those rights exist (see paras. 74-81). These “recognized” rights therefore inform the Crown’s statutory duty to “take all necessary measures to take steps to implement UNDRIP” (paras. 149, 161).
Why is this Case Relevant Outside of British Columbia?
Although this case is only binding in British Columbia, it is a useful decision for Indigenous rights and title holders across the country. We note that s. 5 of the federal United Nations Declaration on the Rights of Indigenous Peoples Act is comparable to s. 3 of DRIPA, a key provision in the Court’s decision. Extending the Court’s analysis to the federal statutory provisions suggests that the federal government may be under a similar a statutory duty to implement UNDRIP.
UNDRIP and the Duty to Consult and Accommodate
Gitxaala is the most recent in a line of cases considering UNDRIP’s application to Canada’s domestic positive law. See e.g.: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5; R. c. Montour, 2023 QCCS 4154; Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10; and Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319. Gitxaala takes the reasoning in those cases a step further with significant impacts for the DTCA.
- Increased focus on Free, Prior, and Informed Consent when triggering and scoping the DTCA
We see opportunities for greater consideration of Free, Prior, and Informed Consent (“FPIC“) when it comes to how courts assess whether the DTCA has been satisfied. Given that the Court found that both legislation and common law must be UNDRIP-consistent, this may lead to changes in the legal framework for determining when the DTCA is triggered and/or the scope of consultation and accommodation required by the DTCA.
Specifically, we expect to see arguments that the DTCA is triggered in novel situations that would not have previously been sufficient to trigger the DTCA.
- Effects of UNDRIP “minimum standards” on the content and process of the DTCA
Gitxaala may also influence courts’ assessment of what it takes for the Crown to have satisfied the DTCA based on the premise that UNDRIP includes certain “minimum standards”. The Court notes that the Canadian Charter of Rights and Freedoms is presumed to provide at least as great a level of protection as those protections included in Canada’s international human rights obligations (para. 62) and extends this analysis to UNDRIP. The Court states that, even where UNDRIP expresses a non-binding statement like an internationally recognized minimum standard, a court may still assess whether legislation is generally harmonious with that minimum standard (paras. 97-98).
Based on this, we expect to see arguments that a wider variety of UNDRIP provisions are relevant to the DTCA analysis than we have seen in recent cases.
UNDRIP as a Tool for Reviewing Legislation in the Courts
Gitxaala also has significant implications for Indigenous rights and title holders who are concerned that provincial or federal legislation is inconsistent with the Crown’s UNDRIP obligations. Indigenous rights and title holders in British Columbia, and perhaps across the country, may now be able to turn to the courts for declarations where legislation or Crown action is inconsistent with the promise of UNDRIP rights (paras. 175-182).
Outside of British Columbia, Indigenous rights and title holders may also be able to go to the courts to hold the federal Crown to its promise to implement UNDRIP rights, even in provinces without their own provincial UNDRIP implementing legislation. This could include using the courts to review federal legislation or Crown conduct for consistency with UNDRIP.
We Can Help Advance Your Rights
Advancing and protecting Indigenous rights and title is a complex and constantly evolving process, but we are here to help your Nation achieve greater self-determination. Contact us by phone or by email to discuss how we can help you protect your rights, your way.
This publication is intended for general information purposes only and should not be relied upon as legal advice.
