In February, B.C. applied to the Supreme Court to appeal a decision by the B.C. Court of Appeal.Sean Kilpatrick/The Canadian Press
The Supreme Court of Canada on Thursday said it will hear a case from British Columbia on the legal breadth of the UN Declaration on the Rights of Indigenous Peoples in domestic laws.
B.C. had codified the declaration in law, called the Declaration on the Rights of Indigenous Peoples Act, or DRIPA, in 2019. The federal government did the same in 2021.
Last December, the B.C. government lost a case against two First Nations at the province’s Court of Appeal. It sparked a political tumult that has shaken Premier David Eby’s government.
The Gitxaala and the Ehattesaht First Nations had challenged the province’s old mineral claims regime, which allowed miners to claim mineral rights on Crown land without first consulting First Nations.
The B.C. Court of Appeal took an expansive view of what the UN Indigenous declaration means in the province. It concluded the government had a duty to consult and co-operate with Indigenous people in B.C. to address “inconsistencies between rights and standards” in the UN declaration and the province’s laws.
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In February, B.C. applied to the Supreme Court to appeal the decision. The top court agreed to take the case on Thursday. It did not provide reasons, as is its custom.
The Supreme Court agrees to only a small fraction of applications for appeal, but cases that raise issues of national importance or involve legal disagreements among judges in the lower courts are ones that the Supreme Court typically agrees to hear.
There are several current cases in courts across the country that revolve around the UN Indigenous rights declaration. While B.C. lost at the province’s appeal court, there was a strong dissent among the three judges that heard the case. A hearing date has not yet been set and based on recent averages it will likely take place early next year. A judgment likely wouldn’t land until later in 2027.
In B.C.’s appeal application to the Supreme Court, the province argued that “existing case law presents a tangle of unclear and conflicting statements” on the UN declaration.
“Guidance from this court is required to ensure a coherent and consistent approach is taken to these critical issues,” the B.C. filing to the top court stated.
The Indigenous rights declaration ruling has roiled the B.C. government. This spring, Mr. Eby sought to suspend parts of DRIPA. But after backlash from Indigenous groups and lacking support from his own caucus, which holds a narrow majority in the legislature, he backed down.
Several years ago, the Gitxaala and the Ehattesaht challenged a long-standing mineral rights regime that allowed companies to automatically register mineral claims without consulting with First Nations.
In 2023, the First Nations won at the B.C. Supreme Court. A judge ruled the mining system violated the Crown’s duty to consult under Section 35 of Canada’s Constitution, the rights of Aboriginal Peoples.
But the judge also ruled that DRIPA did not implement the UN Indigenous rights declaration into B.C. laws.
It was a win for the government.
B.C. thereafter updated its mineral rights regime. But the First Nations sought to challenge the DRIPA element of the ruling at the B.C. Court of Appeal.
Last December, a majority of two of three judges, in a ruling written by Justice Gail Dickson, stated that the lower court had too narrowly viewed the legal effect of DRIPA. Justice Dickson ruled DRIPA was “the interpretive lens through which B.C. laws must be views and the minimum standards against which they should be measured.”
In dissent, Justice Paul Riley said DRIPA provides a mandate for the government to bring B.C. laws into alignment with the UN declaration but oversight and accountability for that work belongs to the government – not the courts.
Justice Riley said there was no indication in DRIPA that the courts were “invited or called upon to adjudicate claims of inconsistency between UNDRIP and British Columbia’s laws.” The judge further said “doing so would take the court outside its proper role in our constitutional democracy.”