B.C. Court of Appeal finds mineral tenure regime inconsistent with UNDRIP

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Key takeaways

• The B.C. Court of Appeal held that courts in British Columbia can assess whether provincial legislation is consistent with UNDRIP.
• The Court found B.C.’s mineral tenure regime inconsistent with UNDRIP because it permits claim registration without prior Indigenous consultation.
• The decision rests on the interpretation of the Declaration on the Rights of Indigenous Peoples Act and amendments to the Interpretation Act.
• Unless overturned or addressed legislatively, the ruling may provide a new basis to challenge B.C. laws and provincial approvals for B.C. projects, particularly in the resource sector.

Why this matters

By finding that courts can assess whether provincial laws comply with UNDRIP, and that UNDRIP can inform the duty to consult, the Court of Appeal has introduced new uncertainty with respect to the rules of consultation for B.C. authorizations relating to projects.

Overview

In Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 (Gitxaala), the British Columbia Court of Appeal held in a 2–1 decision that B.C. courts can adjudicate whether B.C. laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and found that the B.C. mineral tenure regime is inconsistent with UNDRIP because it did not provide for Indigenous consultation in advance of claim registration.

This result was based on the Court’s interpretation of the Declaration on the Rights of Indigenous Peoples Act (“Declaration Act”) and related amendments to the Interpretation Act (British Columbia). The dissenting opinion held that the question of whether a B.C. law is consistent with UNDRIP is not a justiciable matter in light of the Legislature’s intent in enacting the Declaration Act.

The B.C. government has sought leave to appeal to the Supreme Court of Canada and announced that it would be proposing legislative amendments, but it has since backed away from amending the legislation, at least for the time being.

Legislative framework and background

British Columbia enacted the Declaration on the Rights of Indigenous Peoples Act in 2019 to provide a framework for implementing UNDRIP over time. Among other things, the legislation requires the B.C. government to “take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration” in consultation and cooperation with the Indigenous peoples of B.C. 

During legislative debates, the Minister of Indigenous Relations and Services emphasized that the Declaration Act was not intended to give UNDRIP direct legal force, but to operate as an interpretive aid for provincial laws.

As part of the process contemplated by the Declaration Act, the Interpretation Act was also amended to clarify that all provincial enactments “must be construed as being consistent with the Declaration.” These legislative amendments are unique to B.C.

The Gitxaala appeal

The appeal in Gitxaala arose from a challenge to B.C.’s mineral claim registration system, which allowed mineral claims to be acquired on Crown land without prior consultation with potentially affected Indigenous groups. Two First Nations argued that this regime breached:

• the duty to consult
• the honour of the Crown
• the Declaration Act

At first instance, the British Columbia Supreme Court held that the absence of pre-registration consultation breached the duty to consult but rejected the argument that the Declaration Act implemented UNDRIP into domestic law or created justiciable rights. A majority of the Court of Appeal reversed that conclusion in key respects.

Key findings of the majority

In a majority decision, the Court of Appeal made several significant findings regarding the legal effect of UNDRIP in B.C.:

B.C. courts can review laws for consistency with UNDRIP

The Declaration Act incorporates UNDRIP into the positive law of B.C. with immediate effect. While the legislation does not create new substantive rights arising from UNDRIP, it affirms an “interpretive lens” through which B.C. laws must be viewed and assessed, and it creates justiciable obligations that permit courts to assess whether provincial laws are consistent with UNDRIP.

Rebuttable presumption of consistency

The amendment to the Interpretation Act establishes a rebuttable presumption that provincial enactments are consistent with UNDRIP. Legislation must therefore, where possible, be interpreted in a manner that conforms with international rights, obligations, and principles recognized in UNDRIP, and generally harmonize with the international standards articulated in the Declaration Act.

The Court rejected a uniform approach to UNDRIP’s interpretive weight, holding that the presumption of conformity does not apply in the same way to all provisions of UNDRIP. In each case, the relevant article must be assessed to determine whether it reflects:

• a binding rule or general principle
• a minimum standard 
• an aspirational norm

Where an article reflects a binding international legal obligation or general principle, closer conformity is required. Where an article reflects a minimum standard or an aspirational norm, greater interpretive flexibility is permitted, and general harmony may suffice.

In reaching its decision, the Court introduced novel principles for the use of international law domestically, particularly with respect to international instruments or portions thereof that do not reflect customary international law. This may be one of the focal issues if leave to appeal is granted.

Duty to consult

The Court of Appeal found that UNDRIP can inform the content of the duty to consult, and Indigenous groups are entitled to raise “both their section 35 rights and their UNDRIP rights” in consultation relating to the B.C. mineral claims regime, notwithstanding the Court’s finding that the Declaration Act does not create substantive rights arising out of UNDRIP. The Court did not explain how consultation requirements could be affected by UNDRIP and left this issue for another day. This may also be an area of focus on appeal, given the duty to consult is a constitutional duty and, as such, cannot be amended through ordinary legislation.

Application to the mineral claims regime

Applying the findings above, the majority concluded that British Columbia’s mineral claim regime was inconsistent with Article 32 of UNDRIP because it allowed for automatic registration of mineral claims without requiring prior consultation with affected Indigenous peoples.

Although Article 32 refers to “free, prior and informed consent” (“FPIC”), the majority acknowledged that the international legal status of FPIC remains a subject of debate. The Court held that the existence of a duty to consult Indigenous peoples in connection with state action affecting their lands is generally accepted under international law. The majority found that the circumstances of this case did not require the Court to engage in a detailed way with the text of Article 32(2) or other UNDRIP articles to make a finding of inconsistency. 

The inconsistency identified focused solely on the absence of any consultation whatsoever and not on the level of consultation required.

Implications

The decision applies only to British Columbia and is based on a legislative framework that does not exist in other provinces. The federal government has enacted UNDRIP-related legislation and a decision is pending from the Federal Court of Appeal on this legislation. There are numerous bases on which the Federal Court of Appeal could reach a different conclusion, including legal principles not considered or properly applied by the B.C. Court of Appeal and differences in the legislative framework such as the absence of a comparable amendment to the federal Interpretation Act.

Unless the decision is set aside or varied on appeal, this decision may:

• lead to new challenges to B.C. laws and future provincial approvals for projects
• increase consultation uncertainty
• reshape mineral tenure processes

The B.C. government has sought leave to appeal the Supreme Court of Canada. It has also stated that the decision has "created confusion and concern" about the intent of the Declaration Act and previously signalled an intention to introduce amendments to the Declaration Act and the Interpretation Act to clarify the role of courts in assessing UNDRIP consistency. More recently, the B.C. government announced it would not be proceeding with the amendments and instead would be pursuing collaborative dialogue and negotiations with First Nations. The content, timing, and parties involved in the negotiations remain unclear and it will likely be very difficult to reach a resolution given diverging perspectives.

Businesses operating in B.C., particularly in the mining, energy, forestry, and infrastructure sectors, should review how this decision may affect tenure rights, consultation strategies, provincial project approvals, and broader regulatory risk. Our Global Metals & Mining team is closely monitoring developments, including any appeal to the Supreme Court of Canada and proposed legislative amendments.

Our Mining Disputes Insights Series highlights recent court decisions, legal developments and policy shifts that are influencing how capital is deployed, how transactions are structured, and how projects are advanced and defended when challenged. Each article offers focused insight on a specific pressure point or recent development, with an emphasis on practical consequences for mining companies, investors, and other market participants. Across the series, we explore questions that matter to both operational and deal teams.