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.
At the Supreme Court, one key issue is whether there is a role for judges to rule on alleged inconsistencies between the Indigenous rights declaration and B.C.’s many other laws, or whether the work to align Indigenous rights with other laws is the job of the government.
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.
What to know about DRIPA and why B.C.’s NDP government wants to change the Indigenous rights law
The Gitxaala and the Ehattesaht First Nations had challenged B.C.’s old mineral claims regime, which allowed miners to claim mineral rights on Crown land without having consulted First Nations.
The B.C. Court of Appeal took an expansive view of what the United Nations 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.
In February, B.C. applied to the Supreme Court to appeal the decision. The top court agreed Thursday to take the case. It did not provide reasons, as is its custom.
On Thursday, Mr. Eby said his goal is “clarity for British Columbians” on DRIPA’s impact on the province’s laws. Speaking with reporters in Victoria, he said it was good news that the Supreme Court took B.C.’s case but also said the legal avenue isn’t the only route to settle the debate. His government has talks planned with Indigenous groups.
The Gitxaala said the province has “attempted to deny accountability for its promises to align laws with Indigenous human rights standards.”
“We are confident that justice will prevail at the Supreme Court of Canada,” the Gitxaala said in a statement.
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 among those typically accepted by the top court.
Several current cases in courts across the country 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 who heard the case.
A hearing date at the Supreme Court for the B.C. case has not yet been set. Based on recent averages it will likely take place early next year. A judgment likely wouldn’t land until later in 2027.
Robert Janes, a lawyer involved in an Indigenous rights declaration case at the Federal Court of Appeal, said there is a broad consensus among governments, the public and Indigenous people that this issue is “one that should be given as definitive an answer as can be given by the highest court in the country.”
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 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 enough 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 the province’s long-standing mineral rights regime. 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 viewed 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 that “doing so would take the court outside its proper role in our constitutional democracy.”
With reports from Justine Hunter in Victoria