Top court accepts B.C. challenge to landmark Gitxaala mineral rights ruling

NEW WESTMINSTER — The Supreme Court of Canada has agreed to hear British Columbia’s appeal of a B.C. Court of Appeal ruling that found the province’s mineral claims regime inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples as given effect through provincial legislation.The top court announced Thursday it will review the case but provided no reasons, which is its standard practice. No hearing date has been set.The appeal centres on the legal effect of BC’s Declaration on the Rights of Indigenous Peoples Act, also known colloquially by the acronym DRIPA, and the status of UNDRIP in domestic law, with significant implications for resource development, the duty to consult, and so-called ‘reconciliation’ efforts.The proceedings were initiated by the Gitxaala Nation and the Ehattesaht First Nation. They challenged the province’s former “free entry” mineral tenure system under the Mineral Tenure Act, which allowed individuals to register mineral claims on Crown land through an automated online system without prior notice or consultation with First Nations asserting aboriginal rights and title..In September 2023, the BC Supreme Court ruled in Gitxaala v. British Columbia that the regime breached the Crown’s constitutional duty to consult under section 35 of the Constitution Act, 1982.The court suspended its declaration for 18 months to allow the province time to respond. However, it held that DRIPA did not implement UNDRIP into BC domestic law in a justiciable manner and declined to issue a declaration of inconsistency with UNDRIP.The province did not appeal the duty-to-consult finding. It later updated elements of its mineral tenure processes.In December 2025, a majority of the BC Court of Appeal allowed the First Nations’ appeal in Gitxaala v. British Columbia.The majority held that DRIPA incorporates UNDRIP into B.C. law with immediate legal effect. It serves as an interpretive lens for provincial laws and establishes minimum standards against which they should be measured.Of particular importance is the NDP government’s 2021 amendment to the Interpretation Act, which added s. 8.1(3) requiring that every provincial Act and regulation “must be construed as being consistent with the Declaration.”.The BC Court of Appeal held this creates a rebuttable presumption of UNDRIP consistency that infuses the interpretive process, working together with DRIPA to give UNDRIP immediate legal effect as an interpretive aid and minimum standard against which laws are measuredAs such, the court declared the mineral claims regime inconsistent with UNDRIP — particularly article 32(2), which addresses consultation and cooperation regarding resource development affecting Indigenous lands — and affirmed a statutory duty under section 3 of DRIPA for the Crown to consult and cooperate with indigenous peoples to address the inconsistencies.Premier David Eby said after the province's Court of Appeal decision that it “potentially puts courts in the driver’s seat instead of British Columbians.”“It was absolutely crucial that residents of the province, through their elected representatives, remain in control of the process,” Eby said. “Too much rides on it in terms of our province’s prosperity and certainty going forward.”Just last month, Eby floated the idea of introducing legislation to suspend key sections of DRIPA — including the problematic Section 3 — pending the Supreme Court’s ruling. He ultimately backed away from the plan amid reports of a caucus revolt, strong opposition from First Nations leaders, and amid all-time low polling numbers for him and the NDP..In its application for leave to appeal, the province argued that existing case law has produced “a tangle of unclear and conflicting statements” regarding UNDRIP and that guidance from the Supreme Court is required for a coherent approach.Attorney General Niki Sharma said Thursday the government is “very pleased” the Supreme Court will hear the appeal. She noted that written summaries of the government’s arguments are due in August and said she is “hoping for a quick date for hearings so we can get before the Supreme Court as early as possible.” Sharma added that discussions with First Nations on solutions — including the possibility of legislative changes to DRIPA — will continue in parallel with the court process, and that the government is keeping “all options of resolutions open.”Supreme Court of Canada appeals typically take 12 to 18 months from the granting of leave to a final judgment, with hearings often scheduled six to 12 months after leave is granted and decisions rendered an average of about six months after the hearing.

Top court accepts B.C. challenge to landmark Gitxaala mineral rights ruling

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