In 2023, Gitxaala Nation and Ehattesaht First Nation successfully challenged British Columbia’s archaic, colonial, free-entry system of mineral tenures. The system allows prospective miners to register mineral claims for a mere $1.75 per hectare over huge swaths of unceded First Nations territory throughout BC, without notice, consultation, or consent. In the appeal, Gitxaala Nation and Ehattesaht First Nation are seeking an order to ensure all BC laws are consistent with the United Nations Declaration on the Rights of Indigenous People (UNDRIP).

The BCCLA and First Nation Leadership Council (“FNLC”) jointly intervened in the resulting appeal. The FNLC is comprised of representatives of the BC Assembly of First Nations, the Union of BC Indian Chiefs, and the First Nations Summit.

We are presenting arguments around the meaning and relevance of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) to the interpretation of laws in BC, particularly in light of recent statutory reforms aimed at aligning BC laws with UNDRIP. Specifically, we rely on section 8.1(3) of the Interpretation Act which reads, “Every Act and regulation must be construed as being consistent with the Declaration”, meaning UNDRIP.

This case has the power to push the BC government to fulfill its promise to align the laws of BC with UNDRIP. If laws aren’t tested for consistency, there will be no legal pathway to hold the government accountable to DRIPA’s goals. 

The BCCLA and FNLC argue that courts interpreting BC laws must either interpret them consistently with UNDRIP or explicitly say that this is not possible, thus providing the opportunity for inconsistent laws to be amended. In this way, the Legislature has recruited the judiciary to assist in the ongoing process of aligning the laws of British Columbia with UNDRIP.

BCCLA and FNLC are represented by Joelle Walker of Miller Titerle and Rosanne Kyle of Mandell Pinder.