Governments make many promises – whether it's to recognize Indigenous rights, advance reconciliation, or secure justice for Indigenous Peoples. But when commitments are enacted in legislation, it carries an inherent expectation: accountability.
In 2016, the federal government “unequivocally endorsed” the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In 2019, British Columbia took a significant step by enacting the Declaration on the Rights of Indigenous Peoples Act (DRIPA), becoming the first jurisdiction in Canada to pass legislation that commits to aligning provincial laws with UNDRIP. Then, in 2021, the federal government followed suit by passing legislation to align federal laws with UNDRIP.
These actions sparked optimism across Canada, as many hoped they signalled a new age of true reconciliation.
By endorsing and legislatively affirming the application of UNDRIP to the laws of British Columbia (and federally affirming the Declaration as a universal international human rights instrument with application in Canadian law), BC and Canada took what appeared to be concrete steps toward reconciliation by holding themselves accountable to this minimum international standard of Indigenous rights, signalling that Canada is prepared to deliver on its commitments.
But what happens if the Crown argues that these legislative provisions lack legal weight? If the rights and obligations declared within UNDRIP cannot be enforced in court, are they anything more than words on a page? This issue was squarely on the table recently in the BC Court of Appeal proceedings in Gitxaała Nation v BC (Chief Gold Commissioner).
This January, I had the privilege of witnessing three days of compelling legal arguments presented by a range of experienced lawyers debating this critical issue at the forefront of Indigenous rights recognition and enforcement in BC. As an articled law student, I was captivated by how each party – from the appellants (Gitxaała Nation and Ehattesaht First Nation) to the respondents (British Columbia), along with a diverse array of intervenors – contributed unique perspectives to one of the province's most pressing questions: the legal enforceability of the Declaration on the Rights of Indigenous Peoples Act. Being at the beginning of my own legal career in the intersection between environmental law and the fields of Indigenous and Aboriginal law(s) at WCEL, it was incredible to bear witness to the debate that may very well change the trajectory of how this area of law is practiced into the future.
Exploring the legal enforceability of the Declaration on the Rights of Indigenous Peoples Act (DRIPA)
On January 20-22, Gitxaała Nation and Ehattesaht First Nation appeared before a panel of three judges – Madam Justice Dickson, Madam Justice Iyer, and Mr. Justice Riley of the BC Court of Appeal – to present powerful arguments for the legal enforceability of DRIPA in BC courts. The appeal aimed to ensure that the BC government can be held accountable in court over BC laws that are inconsistent with UNDRIP (specifically the Mineral Tenure Act (MTA) regime), and to make the case that UNDRIP applies to all BC laws, including the common law duty to consult.
This question before the Court of Appeal – whether DRIPA makes disputes between the Crown and Indigenous Peoples over the consistency of a provincial law (like the MTA regime) with UNDRIP a justiciable issue (i.e., one that is appropriate for a court to adjudicate) – is more than a dry legal interpretation exercise. It’s about whether the government’s word truly binds it, or if it can walk away from its commitments without judicial consequence.
If the promise made by the Crown in section 3 of DRIPA – that “the government must take all measures necessary to ensure the laws of British Columbia are consistent with [UNDRIP]” – is held to be legally enforceable in court, this case could set a significant precedent, meaningfully and systemically advancing reconciliation between the Crown and Indigenous Peoples by holding this out to be more than just a non-binding political promise.
This appeal builds on the momentum created by Gitxaała and Ehattesaht's ground-breaking legal challenge over BC’s outdated mineral tenure regime, which led to a BC Supreme Court ruling forcing the Province to overhaul its current system to meet the Crown’s Constitutional duty to consult. The political aftermath of the first hearing placed Gitxaała in a strong position to protect its interests against non-consensual mineral tenures on its territories.
Read more about Gitxaała’s successful trial level legal challenge to BC’s MTA regime here, here and here.
Although the BC Supreme Court has already found the MTA regime to be unconstitutional, the relief currently sought by Gitxaała and Ehattesaht would ensure that Indigenous Peoples receive more than just the Crown’s word that the new and reformed MTA regime to come will have to align with UNDRIP by law (and not just by political promise). This is especially significant as the Province’s commitment to reform the MTA was only recently adopted after a long history of failing to reform this Indigenous rights-infringing regime.
Read more about the history and harms of the mineral tenure regime here.
The significance of this appeal extends beyond Gitxaała’s own interests. It has the potential to solidify the legal enforceability of Indigenous rights protections recognized under UNDRIP – including the “free, prior, and informed consent” standard – to the benefit of all First Nations in BC and across all provincial laws. In short, Gitxaała and Ehattesaht aim to ensure that the enshrinement UNDRIP into positive law in BC via DRIPA results in real and tangible legal accountability.
Alternatively, if Gitxaała and Ehattesaht’s appeal is rejected, the harm to Indigenous Nations seeking to enforce their rights is that, when the Crown refuses to accept that a law – such as the MTA – is inconsistent with UNDRIP, despite DRIPA’s call for aligning BC laws with UNDRIP, the courts would be unable to provide any remedy or relief. This would render such disputes legally unenforceable and reduce DRIPA to nothing more than a political promise, devoid of any legal weight in court.
Making sense of British Columbia’s position in court
BC took the position that, in this case, the question of whether the MTA regime is consistent with UNDRIP is not a justiciable one (not legally enforceable in court).
Interestingly however, they stated that the justiciability of DRIPA in future cases is not altogether off the table/foreclosed. Specifically, they noted that in different circumstances, where the Crown fails to take “all measures necessary” to align BC’s laws with UNDRIP, such an issue could then be justiciable in court.
However, in the case at hand, they argued that the process of aligning the MTA with UNDRIP is ongoing, so the Crown has not yet failed to take “all measures necessary” to align the MTA with UNDRIP. Therefore, they state that the trial court was correct in declining to grant Gitxaała and Ehattesaht the declaratory relief they sought in court.
BC also emphasized that since the trial decision, BC is now in agreement that the MTA regime is “generally” inconsistent with UNDRIP and has “openly acknowledged” that the MTA requires reform. However, as Gitxaała’s counsel pointed out, the current mandate letter for the Minister of Mines failed to mention reform that explicitly confirms alignment with UNDRIP.
BC argued that s. 3 of DRIPA only requires the Province to be committed to a framework – a process of “consultation and cooperation” with First Nations – to reform the MTA regime. Essentially, they argued that DRIPA is no more than a commitment to a forward-looking, generational process to align BC laws with UNDRIP in the future.
Accordingly, they asserted that DRIPA does not legislate each and every article of UNDRIP into BC law, meaning that the Indigenous rights declared under each provision in UNDRIP are not currently law in BC. They therefore agreed with the Chambers judge that “UNDRIP remains a non-binding international instrument.” This ultimately means that BC is not currently legally bound to incorporate the articles of UNDRIP in the new MTA regime to come – it has only made a political commitment to do so.
Therefore, the Crown argues that the BC Court of Appeal should not intervene by making the declarations sought (including a declaration that BC is legally bound to align the new MTA regime with UNDRIP), as such a process of reform in collaboration with Indigenous Peoples is underway, politically. They argued that should the court intervene, this would risk turning a process of “cooperation” into one that is adversarial and litigious – something they argue the framework of cooperation and consultation envisioned under DRIPA s. 3 aims to turn away from.
However, in the face of these arguments and on the second day of the hearings, a poignant discussion unfolded between BC’s counsel and the panel of judges, highlighting a critical tension. The judges emphatically repeated the following question multiple times: What happens when the process of “cooperation and consultation” does not work, and Indigenous Nations and the Crown cannot reach agreement?
Essentially, if Indigenous Nations and the Crown do not agree that a piece of BC legislation is inconsistent with UNDRIP, or they disagree in the process of “consultation and cooperation” that alignment with UNDRIP has been reached, what resort do Indigenous Peoples have then?
BC’s counsel responded that “reconciliation is seldom achieved in the courtroom” and returned to the argument that the court should allow First Nations and the Crown the space to navigate the process of consultation and cooperation to reach a resolution.
The frustration in the courtroom was palpable, culminating in a pointed remark from the judges’ bench: “We don’t seem to be getting an answer.”
BC’s counsel at one point conceded that their argument seemingly boiled down to “just trust us.” However, as counsel for Gitxaała and the intervenors aptly noted, without the relief sought, there would be no legally enforceable declaration to hold the Crown accountable for its sudden change of heart – agreeing to reform the inconsistent MTA to align with UNDRIP only after a long history of dispute and Gitxaała and Ehattesaht’s trial victory.
In these moments, I was reminded of the arguments made by Gitxaała, echoed by various appellants and intervenors, offering the answer Indigenous Peoples are striving for: “Where there is a right, there is a remedy.” Counsel for the BC Human Rights Commissioner reinforced this point, stating, “BC courts are the only possible venue for disputes about the consistency between the laws of BC and UNDRIP.”
Walking away from this exchange, BC’s argument that DRIPA does not make the Crown’s commitment to UNDRIP legally enforceable was particularly concerning.
For one, and by admission, BC’s counsel stated that the Crown was taking steps towards this forward-looking process of aligning BC’s laws with UNDRIP even before the passing of DRIPA, and that this work simply continued after its passing as formal BC legislation.
However, as the BC Court of Appeal panel of judges pointed out, the passing of legislation – as opposed to simply a policy or an action plan – is a deliberate choice that carries its own significance. By contrast, the Crown’s reasoning implies that the passage of DRIPA as a provincial statute (along with its federal counterpart) would add no additional significance, legal weight, or utility as legislation. If this were truly the case, the Crown could have simply endorsed UNDRIP internationally without enacting any further domestic legislation.
Further, such reasoning could reasonably deepen the appellants’ distrust of Crown commitments, hindering reconciliation efforts, as it reduces DRIPA to a non-binding political promise – initially presented as a robust legislative commitment but turning out to ultimately lack real legal force. As counsel for the BC Human Rights Commissioner, Terri-Lynn Williams-Davidson, noted, such an outcome does not reflect "the transformative change DRIPA was meant to bring."
For a more detailed summary of the arguments presented by the parties before the BC Court of Appeal (including appellants, respondents and intervenors), refer to this legal backgrounder.
Closing thoughts
It is important to acknowledge that for many Indigenous Nations, seeking a judicial remedy is rarely the ideal or preferred course of action. More often than not, it is a last resort – pursued only after the Crown has failed to address serious infringements of Indigenous rights. This reality is often complicated by the systemic inequities and significant barriers Indigenous communities face in accessing justice.
It was deeply impactful to see rows of Gitxaała leaders and community members in their regalia, sitting through days of court proceedings as lawyers debated whether the minimum standard of their UNDRIP-recognized rights would be legally enforceable in Court. As Terri-Lynn Williams Davidson powerfully stated before the court on behalf of the BC Human Rights Commissioner (BCHRC), the rights declared under UNDRIP are "basic minimum standards not grandiose rights."
To ask Indigenous Peoples to place their trust solely in political promises – particularly in a time marked by political uncertainty and unrest – is a difficult proposition. This is especially true against the backdrop of a wide array of historical and contemporary Indigenous rights violations, where meaningful change has often required decades of persistent advocacy and resilience from Indigenous Nations before the minimum standards for rights protections are upheld in practice.
Counsel for British Columbia emphasized to the court that the Crown has shifted from an era of Indigenous rights denial to one of rights recognition, arguing that aligning laws with UNDRIP is best achieved through a process of “consultation and cooperation,” as “reconciliation is seldom achieved in the courtroom.”
However, the reality is that courts have historically played a significant role in the denial of Indigenous rights and, therefore, have their own work to do in advancing rights recognition.
Counsel for the BCHRC, Terri-Lynn Williams Davidson, powerfully noted that “when Indigenous Peoples are barred from a remedy in court” this would go against the spirit of partnership and cooperation that the Province continues to point to. The BCHRC also argued that to ensure the honour of the Crown is upheld as the work of aligning UNDRIP into provincial laws continues generationally, dispute resolution mechanisms must be available to Indigenous Peoples now.
As Ruben Tillman, co-counsel for Gitxaała, aptly concluded, “Accountability does take place in the courtroom. This is the court’s role in reconciliation.”
“It cannot be that there are legal duties without a legal remedy." – Lisa C. Fong, K.C., Co-Counsel for Gitxaała
It is difficult to imagine that any group would stake their fundamental rights on political commitments alone, without the safeguard of legal enforceability. The court declarations sought would mark a meaningful step forward – not just for Indigenous Peoples, who deserve legal enforceability of their rights under UNDRIP, but also for the Province, as it seeks to turn a new leaf with Indigenous Nations and set a global precedent for meaningful reconciliation between the Crown and Indigenous Peoples. Such a win would showcase BC as a leader in advancing reconciliation through both words and actions.
If the Province of British Columbia is truly committed, as it expressed in court, to acknowledging that the MTA regime is inconsistent with UNDRIP and to reforming it in alignment with UNDRIP, then a court declaration should be seen as an opportunity to provide legal certainty and reinforce that commitment – not a hindrance.
Gitxaała and Ehattesaht have affirmed that the declarations they seek would not have the immediate effect of invalidating provincial laws, directly addressing concerns that a court win could cause a sudden and chaotic disruption that destabilizes BC’s laws. Rather, the declarations sought by the appellants would simply make legally enforceable the commitments the Crown has already made, while allowing the process of aligning BC’s laws with UNDRIP via political ‘consultation and cooperation’ to continue – only now with added security for Indigenous Nations, ensuring judicial accountability should the Crown fail to uphold its commitment.
Accordingly, if the parties were to leave with a court declaration that the MTA is inconsistent with UNDRIP and that BC has a legal duty to reform its MTA regime to align with UNDRIP in consultation and collaboration with Indigenous Nations, this would only bolster and strengthen the Crown’s recent and ongoing efforts to align provincial laws with UNDRIP by providing legal clarity and accountability – helping to build greater trust and confidence in the reconciliation process moving forward.
Top photo: Gitxaała delegation standing in front of the Law Courts steps with Chief Councillor Linda Innes at the mic / Alexis Stoymenoff