British Columbia is asking Canada’s top court to hear an appeal of a ruling that found the province’s mining claim system was inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
The B.C. government’s application to the Supreme Court of Canada hinges on who should be in charge of implementing UNDRIP: elected governments working with Indigenous peoples, or the courts.
In B.C., a law known as the Declaration on the Rights of Indigenous Peoples Act, or DRIPA, establishes the UN declaration as the province’s framework for reconciliation.
The Gitxaala Nation and Ehattesaht First Nation appealed a 2023 B.C. Supreme Court decision related to the province’s “free entry” mineral tenure system, under which anyone could register a mineral claim online without consulting affected First Nations.
The First Nations argued the system violated the Crown’s constitutional duty to consult with First Nations and conflicted with UNDRIP.
A B.C. Supreme Court judge agreed the system breached the province’s duty to consult with First Nations but declined to rule on whether B.C. had a legal duty to align the Mineral Tenure Act with UNDRIP.
The province created a new consultation framework for mineral claims, which came into effect in March 2025.
In December, two of three B.C. Court of Appeal judges said the old mineral claim system was inconsistent with UNDRIP and that the province has a legal duty to co-operate with First Nations to align its laws with the declaration.
The dissenting judge agreed UNDRIP has legal effect in B.C. but said courts should not decide whether laws are inconsistent with the declaration.
A key part of the ruling said disputes about whether provincial laws align with UNDRIP can be decided by courts. The province said in its application that the appeal court’s decision leaves many questions open and is likely to lead to more litigation.
The province is asking the Supreme Court of Canada to decide whether courts have the authority to declare laws inconsistent with UNDRIP and whether courts should treat UNDRIP as if it already applies to all B.C. laws.
It said the questions go beyond B.C.’s borders, pointing to similar legislation at the federal level and in the Northwest Territories.
The Supreme Court will decide whether the case raises issues significant enough to be heard.
Premier David Eby said the ruling has “created confusion and concern about the intent of [DRIPA] and reconciliation work generally.”
“We are seeking to appeal that decision at the Supreme Court, while we work with First Nation partners on amendments to get back to the original intention of the Declaration Act. The Act’s purpose is to be a roadmap to stay out of court and try to find constructive resolution of shared concerns. It reflects that reconciliation is a two-way street,” Eby said in a statement Friday.
Eby has said his government will table amendments to DRIPA during the upcoming spring session. His office said Friday the government has begun discussing those amendments with First Nations leadership.
“Gitxaala has consistently maintained that the province should get on with implementing the United Nations Declaration on the Rights of Indigenous Peoples (Declaration Act) in cooperation and consultation with Indigenous peoples, instead of fighting us in court and threatening to amend the Declaration Act,” said Gitxaala Chief Councillor Linda Innes in a statement.
“But we will not hesitate to use our ayaawx (Gitxaala law) and every tool in our toolbox to defend our rights, including at the Supreme Court of Canada. We are confident that justice will prevail,” said Innes.
