In 2019, B.C. unanimously passed the Declaration on the Rights of Indigenous Peoples Act. It was celebrated as a major step toward working with First Nations in a better, more equal way.
But a court ruling earlier this month seems to be contributing to a change of heart for Premier David Eby. On Dec. 5, the British Columbia Court of Appeal ruled the government’s obligations under the Declaration Act are legally enforceable. Eby is now arguing judges shouldn’t be setting the province’s reconciliation agenda. And he says he is willing to change the law to make sure they can’t.
“The work we do in reconciliation is to empower people, Indigenous and non-Indigenous alike, not to empower the courts,” Eby told attendees at a BC Chamber of Commerce luncheon on Dec. 10.
“Last week’s court of appeal decision invites further and endless litigation,” he added. “It is the exact opposite of the direction we need to go: less certainty, not more; more conflict, not less.”
When the legislature resumes in the spring, Eby said the government will introduce amendments to the act to make things clear.
Merle Alexander, a lawyer who helped draft the Declaration Act, called the premier’s pledge to swiftly amend the first B.C. law co-developed with First Nations — one that passed into law with the full support of the legislature — troubling.
“[The Declaration Act] was a tacit agreement between the B.C. government and B.C. First Nations that the status quo wasn’t working and an agreement that we were going to change things together,” Alexander, a lawyer with Miller Titerle + Company, who specializes in Indigenous law, said.
“The idea that you could go back and unilaterally change some of its core purposes by yourself, with or without First Nations, to me, on the face of it, is extremely offensive.”
Cynthia Callison, a partner with Callison & Hanna Law who has advocated for First Nations in B.C. for 29 years, called Eby’s vow to alter the Declaration Act a knee-jerk reaction.
“Every time a court has acknowledged Indigenous Peoples’ rights or tried to encourage reconciliation between the Crown and First Nations, there’s always a backlash,” Callison, who is a member of the Tahltan Nation, said in an interview. “It’s something to be expected.”
What is UNDRIP and why does it matter?
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) affirms the inherent human rights of Indigenous Peoples worldwide. It acknowledges those who have suffered and continue to suffer persecution, genocide, cultural erasure, marginalization and disproportionate impacts from resource extraction and climate change. In 46 articles, the declaration covers a range of basic rights that represent the “minimum standards for the survival, dignity and well-being” of Indigenous Peoples.
In other words, UNDRIP and B.C.’s equivalent legislation, are an acknowledgement of the basic rights of Indigenous Peoples, including the right to “free, prior and informed consent” about decisions that affect their lives and well-being.
B.C.’s Declaration Act was hailed as an important step on the path of reconciliation. From left to right: Terry Teegee, regional chief of the B.C. Assembly of First Nations, Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, and his wife, Joan Phillip, MLA and Indigenous Rights advocate. Photo: Province of B.C. / Flickr
When B.C.’s Declaration Act was introduced, the government stressed this did not amount to a veto for First Nations on issues like resource development. Instead, the government described the act as “a path forward” for relations between First Nations and the province. The idea was the legislation would hold the government accountable, in law, to its stated commitments on reconciliation.
In 2021, it was Eby, in his former role as attorney general, who put forward a change to the province’s Interpretation Act, which gives courts guidance on how to apply provincial laws and statutes. At the time, Eby said the changes would make it “explicit that the province’s preferred approach” is to have laws and regulations interpreted in ways that align with the United Nations declaration.
That same year, the Canadian government passed its own law to use the declaration “as an international human rights instrument that can help interpret and apply Canadian law.”
Callison believes it will be difficult for the B.C. government to insulate its laws from being held to a widely recognized international standard, especially one that the federal government upholds.
“Whether or not it’s legislated, it’s still something that courts are able to use in decisions. Maybe they’re not bound to it, but they still can recognize those principles,” Callison said. “The reason why Indigenous people wanted it to be legislated, I think, was because then it was clear that the court could use that standard.”
The recent appeal court ruling concluded the Declaration Act has “immediate legal effect” on B.C.’s laws — not just the ones the province has decided to bring into alignment with the principles of UNDRIP.
“What the court did in the decision, unfortunately, is to say that at any time, any nation can come to court and apply to find a law invalid [under the United Nations declaration],” Eby said on Dec. 10. “And that was never the intention.”
But how a government hopes its legislation will be applied by the courts — as conveyed by ministers speaking in the legislature, for example — can only be secondary to the letter of the law, Alexander explained.
“The most important part of the interpretation is the literal words of the statute itself,” he said.
Those laws lay out a process for legal reforms to be co-developed with First Nations, Alexander added, but don’t contain any language barring the courts from interpreting them.
What’s happened to date in the Gitxaała case?
The appeal court’s Dec. 5 decision was the result of a challenge to part of a 2023 B.C. Supreme Court ruling launched by the Gitxaała and the Ehattesaht First Nations. That ruling agreed with the nations’ claim that B.C.’s mineral claim staking regime did not fulfill the government’s obligations to consult with First Nations. It also concluded that B.C.’s Declaration Act was not legally enforceable, which is what the nations just successfully appealed.
Gitxaała hailed the appeal court’s ruling as “precedent setting.”
“Aligning all B.C. laws with the [United Nations] declaration and upholding the standard of free, prior and informed consent is the only pathway to the investor ‘certainty’ the mining sector seeks,” Gitxaała Chief Councillor Linda Innes said in a statement.
Gitxaała elected Chief Councillor Linda Innes (Lou Gagwelks) said the recent ruling is a win both for Indigenous Rights and for industry. Photo: Jimmy Jeong / The Narwhal
The case was brought forward by Gitxaała in 2021. Like many court cases that centre on infringement of Indigenous Rights, its scope was wide reaching — but its origins stemmed from environmental damages that occurred on Lax k’naga dzol (Banks Island) in 2015 and subsequent mineral claims staked there between 2018 and 2020. Banks Island, which Gitxaała refer to as their “bread basket,” is on B.C.’s northwest coast, south of the Skeena River estuary.
B.C.’s Mineral Tenure Act is “colonial legislation” that dates back to the mid-1800s gold rush, the ruling stated. While the law, often called the free-entry system, has been updated and amended over the years, it still allowed for anyone to stake a claim on lands in B.C. without first asking permission from the landowner or First Nations.
Callison described the appeal court’s ruling as a logical next step to address a legal infringement on Indigenous Rights that the province has been aware of for a long time.
“In this case, it’s quite obvious that this mineral tenure system, the free miner system, is inconsistent with Indigenous Peoples’ rights,” Callison said.
And fulfilling the requirements of the Gitxaała decision will create more certainty for First Nations and B.C.’s mining industry, Callison argued.
“They can’t complain that they don’t know what is culturally important to First Nations if it’s identified and if it’s been declared as a non-staking area.”
Naxginkw Tara Marsden, who works with the Gitanyow Hereditary Chiefs, called the recent decision “pivotal.”
“A lot of our problems in resource management centre around these fundamental legislation like [the Mineral Tenure Act], where industry effectively gets unfettered access to the rights to resources,” she told The Narwhal. “But undoing the free-entry system, bolstered by the legal effect of UNDRIP, moves us away from that. It’s a paradigm shift, and can spill over into others.”
Naxginkw Tara Marsden, who works with the Gitanyow Hereditary Chiefs, said the court ruling could be a ‘paradigm shift’ that provides certainty for resource companies and reduces potential conflicts on the land and in the courts. Photo: Jimmy Jeong / The Narwhal
How is the political world reacting to the Gitxaała decision?
The appeal court decision on the Gitxaała case isn’t the only one troubling the premier. During his address at the luncheon, Eby called the appeal court ruling and the B.C. Supreme Court’s decision in the Cowichan Tribes case “deeply troubling.”
Eby, the one-time head of the BC Civil Liberties Association, slammed provincial judges for issuing “dramatic, overreaching and unhelpful” decisions he claimed could destabilize the provincial economy.
“It’s hard to understate the damage that could be done or has already been done to public support for the delicate, critical and necessary work we have to do with First Nations in a province that was almost entirely settled without treaties, and in a country that has Section 35 of the Constitution,” Eby warned.
“While this work is essential to our success, it could also be the undoing of our province as a place to do business.” Amending the Declaration Act and the Interpretation Act will make the government’s intentions clear, Eby told the audience, and prevent future court decisions from potentially destabilizing economic development.
Alexander believes the premier’s plan could have the opposite effect, potentially triggering more court cases from First Nations and thereby creating more uncertainty for resource extraction and other industries in the long run, while also damaging the province’s relationship with First Nations.
“People have very fragile trust in the government of the day, but when they so intentionally change legislation to ensure that there’s no objective party reviewing how they perform reconciliation, it seems very insidious.”
This year, B.C. passed legislation to fast-track the North Coast transmission line, renewable energy projects and yet-to-be-defined “provincially significant projects.” The B.C. government admitted it had not fulfilled its consultation obligations before introducing the legislation, which many First Nations forcefully criticized.
Eby’s vow to amend the Declaration Act could even stiffer opposition from First Nations leaders, Alexander warned.
“It’s hard to know how damaging it will be to reconciliation, because, in truth, Premier Eby himself has damaged reconciliation in the province so tremendously in the last year, it’s hard to measure,” he said. “There’s a lot of burning bridges already.”
Updated Dec. 16, 2025, at 11:08 a.m. PT: This story was updated to correct the spelling of Cynthia Callison’s law firm, Callison & Hanna.
