Supreme Court of Canada to Hear DRIPA Case

The BC Court of Appeal’s (the “Court”) decision held that the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”) makes the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP ”) positive law in BC and that the consistency of provincial laws with UNDRIP is justiciable.[1]

Following the release of the Court’s decision, Premier Eby’s government announced its intention to suspend the sections of DRIPA  at issue in Gitxaała, notably section 3 which requires the government to “take all measures necessary” to ensure provincial laws are consistent with UNDRIP. Amidst severe opposition, Premier Eby backed down on an immediate suspension and deferred the issue to the fall legislative session.[2]

With the BC government’s quick change of course in its response to the Gitxaała decision and its successful application for leave to appeal to the SCC, questions remain about how this might play out.

Depending on the specific amendments to DRIPA that may be introduced and approved in the fall legislative session, there is a possibility that some or all of the appeal might become moot or at least radically different from how the parties have framed the issues to date.

On the one hand, the SCC might adopt the Court’s approach to the interpretation of DRIPA and affirm that it imposes a statutory duty on the Crown to address inconsistencies between BC laws and UNDRIP. This would mean that Indigenous peoples can use courts to challenge how British Columbia goes about reforming legislation to be consistent with UNDRIP.

On the other hand, the SCC might follow a different interpretation, perhaps closer to that of the chambers judge, that limits the operation of the impugned DRIPA provisions to a higher-level aspirational commitment rather than a cause of action against any and all BC laws, in order to address concerns about how it might be operationalized or abused.

Multiple potential interveners should be expected, given the far-ranging implications of this appeal not just in British Columbia but elsewhere in Canada. After all, the federal UNDRIP legislation, the United Nations Declaration on the Rights of Indigenous Peoples Act, contains a nearly identical provision as DRIPA, requiring Canada to “take all measures necessary” to ensure federal laws are consistent with UNDRIP.

For a summary of the Court’s decision, please read on.

What the Court Decided in Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430

In Gitxaała, the two Appellants, Gitxaała Nation and Ehattesaht First Nation, both challenged the mineral tenure system as it then operated under the Mineral Tenure Act after mineral claims were granted in certain territories where both First Nations have asserted Aboriginal rights and title.[3] Both First Nations sought declarations that BC’s free entry system for mineral claims was inconsistent with the honour of the Crown and with UNDRIP.[4]

The Court’s majority decision was released on December 5, 2025 and allowed the appeals, stating that the “judge adopted an unduly narrow approach to the interpretation and legal effect of the Declaration Act and UNDRIP [and that] properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of [BC] with immediate legal effect”.

The majority found that DRIPA “amounts to a binding Crown promise… that the Crown will act as though the existing legal rights, obligations, principles, minimum standards and goals expressed in UNDRIP in specific relation to Indigenous peoples apply to British Columbia laws, including the common law.” As a result of this “solemn promise,” UNDRIP should “inform the interpretation of the common law duty to consult that arises with provincial decision-making and conduct”.

The majority also found that consistency between BC laws and UNDRIP is “justiciable” and the chambers judge erred in not considering the consistency between UNDRIP and BC’s mineral tenure system. The Court issued a declaration that BC’s mineral tenure system is inconsistent with UNDRIP, stating that DRIPA creates legally binding obligations on BC to work in consultation with Indigenous peoples to make laws consistent with UNDRIP.

Furthermore, the Court found that DRIPA “incorporates UNDRIP into the positive law of British Columbia with immediate legal effect.” While DRIPA does not create new legal rights, it “affirms the interpretive lens through which British Columbia laws must be viewed and the minimum standards against which they are to be measured”. Additionally, Section 8.1 of the Interpretation Act creates a “rebuttable presumption of consistency” between BC laws and UNDRIP.

In summary, the three key determinations of the Court are as follows:

1. UNDRIP informs the duty to consult. The majority found that DRIPA has engaged the honour of the Crown and that UNDRIP now informs what is required for the Crown to discharge its duty to consult. This has the potential to be the most significant development in the law of consultation since the Haida decision in 2004.
2. Rebuttable presumption of consistency between BC laws and UNDRIP. In the decision under appeal, the judge found that where more than one interpretation of a BC law is possible, courts must choose one that is consistent with UNDRIP. The majority’s decision takes this further, suggesting that BC’s laws must be interpreted to be consistent with UNDRIP unless they were intended not be consistent with UNDRIP.
3. Consistency is justiciable. First Nations now have a new avenue to challenge legislation in court: they can seek declarations that the legislation is inconsistent with UNDRIP, triggering BC’s obligations under DRIPA to reform the legislation. Additionally, First Nations can use courts to challenge how British Columbia goes about reforming legislation to be consistent with UNDRIP.

The Court’s decision was a decisive victory for the appellants. However, the SCC will have the final say on this matter, if the provincial government doesn’t beat them to the punch by carrying through on its promise to expressly limit the scope and justiciability of DRIPA.

To date, a hearing for the appeal has not been set.

[1] Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 [Gitxaała]; Declaration on the Rights of Indigenous Peoples Act, S.B.C. 2019, c. 44; United Nations General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, UN Doc A/RES/61/295 (2007).

[2] British Columbia, Office of the Premier, “Premier’s, First Nations Leadership Council statement about DRIPA”, (April 20, 2026), online: <https://news.gov.bc.ca/releases/2026PREM0027-000438>.

[3] Gitxaala, supra note 2; Mineral Tenure Act, RSBC 1996, c 292.

[4] Gitxaała, supra note 2.