Gitxaała Nation: What property owners and developers should know

The decision in Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430, is one of the most significant recent decisions from the British Columbia Court of Appeal, with broad implications for land development, Crown decision-making, and the recognition of Indigenous rights across the province. While the case arose in the context of mineral claims, it represents an important broader development in how British Columbia courts may interpret and apply the province’s commitments under the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”) and the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”).

Lower Court Decision

The proceeding concerned British Columbia’s former mineral claims registration system under the Mineral Tenure Act[i] (the “MTA”).[ii] Under the previous framework, mineral claims could be acquired online without any prior consultation with potentially affected Indigenous peoples.

Gitxaala Nation and Ehattesaht First Nations challenged the regime, arguing that it breached the Crown’s duty to consult because mineral claims could be registered without consultation. The petitioners also argued that the MTA was inconsistent with both DRIPA and UNDRIP.

While the Court concluded that the MTA breached the Crown’s duty to consult, on the issue of whether the regime was inconsistent with UNDRIP, the chamber’s judge held that:

1)       UNDRIP had not been directly implemented into the domestic law of British Columbia;

2)       the question of whether provincial laws are consistent with UNDRIP was not justiciable; and

3)       DRIPA could and should be used as an interpretive aid in construing provincial legislation.

Court of Appeal Decision

In December 2025, the BC Court of Appeal went further. In allowing the appeal, the majority agreed with the appellants that the chambers judge interpreted UNDRIP and DRIPA too narrowly, stating:

In my view, the judge adopted an unduly narrow approach to the interpretation and legal effect of the Declaration Act and UNDRIP. Properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect. This does not mean that s. 2(a) of the Declaration Act creates or confers new substantive legal rights or obligations arising from UNDRIP. Rather, it affirms the interpretive lens through which British Columbia laws must be viewed and the minimum standards against which they are to be measured. In addition, s. 3 imposes a statutory duty on the Crown to consult and cooperate with the province’s Indigenous peoples in addressing unresolved inconsistencies between UNDRIP rights and standards, on the one hand, and, on the other, the laws of British Columbia. The consistency question raised by the appellants is justiciable, and the answer is obvious: UNDRIP and the Mineral Claims Regime are inconsistent. The Crown must take that inconsistency into account in discharging its consultative duties with respect to the Mineral Claims Regime.[iii]

How Did We Get Here?

To understand the significance of Gitxaala, it is important to consider the broader legal and political context surrounding UNDRIP and DRIPA.

In 2007, the United Nations General Assembly adopted UNDRIP as an international framework recognizing and affirming the rights of Indigenous peoples. Canada initially voted against the resolution, citing concerns that certain provisions were overly broad and open to varying interpretations. Ottawa later reversed its position and formally endorsed UNDRIP in 2016.

Following the Truth and Reconciliation Commission’s Calls to Action in 2015, governments across Canada faced increasing pressure to implement UNDRIP domestically. British Columbia became the first province to do so through the enactment of DRIPA in 2019, which was passed unanimously.

At the time, the Province characterized DRIPA primarily as a framework for gradually aligning provincial laws with UNDRIP, rather than legislation creating immediate legal obligations. Many proponents – in line with the chambers judge interpretation in Gitxaala – understood DRIPA to function principally as an interpretive aid for future legislative and policy development.

The Court of Appeal’s decision in Gitxaala represents a significant shift from that understanding. The majority held that DRIPA imposes substantive obligations on the province and that “every Act and regulation must be construed as being consistent with the Declaration.”

Appeal to Supreme Court of Canada and Political Response

The province has appealed the decision to the Supreme Court of Canada.

The decision has also generated significant political debate within British Columbia. Premier David Eby has stated that the province intends to amend DRIPA, while conservatives have called for the legislation to be repealed entirely.

More recently, in April 2026 Premier Eby announced that the province would work with First Nations to develop a joint approach to addressing concerns arising from the decision before the fall legislative session.[iv] What those changes to DRIPA might look like remains to be seen.

Why Property Owners and Developers Should Pay Attention

Many development projects depend on governmental approvals, including – to name a few – rezoning approvals, environmental permits, road access approvals, and resource or forestry authorizations. Where those approvals may affect asserted Aboriginal rights or title, consultation issues can become a significant project risk.

From a practical perspective, unresolved consultation issues can affect financing, project timelines, certainty, and marketability. Even where approvals are ultimately granted, projects may still face delays, added cost, judicial review proceedings, or increased negotiation pressure on other necessary approvals.

Moving Forward

For now, one functional takeaway of Gitxaala is that consultation obligations may arise earlier in the development process than previously assumed. A governmental “decision” does not need to authorize physical construction before consultation concerns are engaged. If an approval potentially grants legal rights, access, priority, or economic advantages, it may still trigger consultation obligations or become vulnerable to challenge under this shift in the law.

While the Province considers amendments to DRIPA and the appeal remains before the Supreme Court of Canada, developers should carefully assess and mitigate consultation-related risks at the outset of a project. This includes identifying potentially affected First Nations early, assessing whether Crown approvals may trigger consultation obligations, incorporating consultation timelines into project planning, and generally conducting enhanced due diligence on how Indigenous interests may be impacted.

For more information or help with navigating your obligations, contact Tessa Pedersen.