Author: Kate Babony & Adam Wheeler, Fogler, Rubinoff LLP
The British Columbia Court of Appeal's recent decision in Gitxaala v British Columbia (Chief Gold Commissioner) ("Gitxaala")[1] 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, such as the federal United Nations Declaration on the Rights of Indigenous Peoples Act ("UNDRIPA"), 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.[2] These "recognized" rights therefore inform the Crown’s statutory duty to “take all necessary measures to take steps to implement UNDRIP”.[3]
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 UNDRIPA 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 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.[4] Gitxaala takes the reasoning in those cases a step further with significant impacts for the DTCA.
(1) Increased focus on Free, Prior, and Informed Consent when triggering and scoping the DTCA
The decision presents opportunities for greater consideration of Free, Prior, and Informed Consent ("FPIC") when it comes to how courts assess whether the DTCA has been satisfied. Changes in the legal framework for determining when the DTCA is triggered and/or the scope of required consultation and accommodation are live realities given that the Court found both legislation and common law must be UNDRIP-consistent — for example, article 32(2) of UNDRIP sets out that there is a standard of free, prior and informed consent. This could lead to the DTCA being triggered in novel situations that would not have previously been sufficient to trigger the DTCA.
(2) 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[5] and extends this analysis to UNDRIP. The Court states that, even where UNDRIP expresses a non-binding statement like an internationally recognized minimum standard, where interpretive issues arise a court may need to still assess whether legislation is generally harmonious with that minimum standard.[6]
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.[7]
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.
[1] Gitxaala v British Columbia (Chief Gold Commissioner), 2025 BCCA 430 [Gitxaala].
[2] See ibid at paras 74-81.
[3] See ibid at paras 149, 161.
[4] 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.
[5] Gitxaala, supra note 1, at para 62.
[6] Ibid at paras 97-98.
[7] Ibid at paras 175-182.
