Current plans to amend or even repeal the Declaration on the Rights of Indigenous Peoples Act (DRIPA) are out of step with what is actually needed to move government relations with Indigenous groups in B.C. forward.
In 2019, the B.C. legislature unanimously passed DRIPA to spell out how the B.C. government will implement the United Nations Declaration on the Rights of Indigenous Peoples. It seems though that some law-makers believed the legislation was merely declaratory and legally unenforceable. In other words, many political leaders in the B.C. government believed that DRIPA was just another performative step taken to appease Indigenous interests.
On December 5, 2025, the British Columbia Court of Appeal (BCCA) made its decision in Gitxaala v. British Columbia, 2025 BCCA 430 (Gitxaała), ruling that DRIPA incorporates the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into the positive law of British Columbia. It is therefore legally enforceable and as “positive law” it places specific obligations on the Province of British Columbia. Generally, DRIPA requires the province to act in ways that are consistent with the honour of the Crown, are in “good faith”, and which acknowledge the government’s fiduciary obligations to indigenous people.
UNDRIP is a United Nations declaration that sets out minimum standards for the survival, dignity and well-being of Indigenous Peoples, including rights tied to lands, territories, resources, culture and self-determination. While initially opposed, Canada fully endorsed UNDRIP in 2016. Because UNDRIP is an international instrument, there must be domestic legislation that enables its application for it to have specific legal effect. British Columbia was the first jurisdiction to enact legislation incorporating UNDRIP into provincial law in 2019 through DRIPA[1].
In 2021 and 2022, Gitxaała Nation and Ehattesaht First Nation brought challenges to the operation of the mineral tenure system, asserting that the “free entry” claim staking system under the Mineral Tenure Act was both a breach of the Province’s obligations under section 35 of the Constitution Act, 1982 as well as those imposed by DRIPA.
In 2023, the Supreme Court of British Columbia (BCSC) determined that the Crown’s duty to consult with Indigenous Peoples was triggered and required that the Province amend the mineral tenure system to become consistent with the duty to consult. However, with respect to DRIPA obligations, the BCSC held that DRIPA did not create legally enforceable obligations on the Province to implement UNDRIP.
In late 2025 On appeal the B.C. Court of Appeals (BCCA) overturned the BCSC judge’s decision and held that DRIPA does implement the substance of UNDRIP into domestic law and it does create legally enforceable rights where the Province fails in its implementation.
In essence the more recent ruling dictates that the B.C. government must comply with the intent and substance of UNDRIP. As such the courts have a role to ensure compliance and to make determinations including as to:
Whether there is an inconsistency between a British Columbia law and UNDRIP
Whether the type of inconsistency in issue must be addressed by the Crown taking measures
What measures should be taken
The adequacy of a consultation process
By enacting this provision, the Legislature engaged the honour of the Crown, of which a key aspect is the presumption that the Crown will fulfill its promises. Despite the unanimous passing of the legislation the current government is not happy with the onus the recent ruling places on it and has announced through the Premier’s office that the government will seek to amend DRIPA to either narrow its scope and application or may even repeal the legislation altogether.
Fear mongering by uninformed antagonists over the B.C. Supreme Court award in the Quw’utsun (Cowichan) Nation title case has raised concerns with respect to the role of the courts in Aboriginal title claims. Unfortunately, the depth and nuances of the processes are not well understood and too many commentators have used the Cowichan case to raise fears.
In a democracy founded on the rule of law the courts serve as a check over government powers to ensure there is a balance that properly considers crown obligations and the rights of all stakeholders. Notwithstanding the act of reconciliation is essentially a political act between the government and various indigenous interests. It is a process of negotiation and consultation.
Arguably DRIPA was enacted to provide a process that facilitates those negotiations and consultations in a way that properly upholds the honour of the crown and respects the principles of UNDRIP. This includes the established processes for developing provincial laws, policies and practices with Indigenous Peoples and guidelines to define adequate consultation.
Premier Eby’s efforts to amend or repeal DRIPA are the product of catering to an ill-informed popular sentiment rather than making good faith efforts to resolve the issues though proper processes.
It is the failure of the provincial government to act consistently and to uphold the honour of the crown that has led to too much uncertainty with respect to such issues as property rights and mineral development in the province. Despite numerous assertions by various First Nation leaders that private property rights will continue to be respected and protected the markets have reacted to the uncertainty caused by naysayers who simply do not like the fact that much of B.C. is unceded territory and that the Indigenous people who share the province with settlers actually have inherent rights to much of the land.
B.C. took the step of being the first government to embrace the principles set out in the U.N. Declaration (UNDRIP). It was a brave decision precisely because it set the stage for added complexity to law-making processes and much needed development decisions in the province. With brave actions comes significant efforts to live up to the promises of change that those actions and decisions initiate. It appears that the current government simply does not have the moral fortitude or vision necessary to live up to the expectations established by DRIPA and now want to change the game rules.
Canada has an opportunity to strengthen its democracy by demonstrating how many sovereign interests can interact under a unified confederation to establish a unique country able to meet the needs of a wide variety of stakeholders.
Nothing in DRIPA or UNDRIP or any other frameworks developed to facilitate reconciliation interfere with resource development. Rather as we carefully consider indigenous interests we find there are opportunities for participation that will allow Indigenous communities to participate in the broader Canadian economy in self-sufficient ways that will support independence, self-government and self-determination. It is in every Canadians interest to see this happen and efforts like Eby’s current efforts to reduce the impact of DRIPA are nothing less than giant steps backwards.
[1] On June 21, 2021, the United Nations Declaration on the Rights of Indigenous Peoples Act received Royal Assent and immediately came into force. This legislation advances the implementation of the Declaration as a key step in renewing the Government of Canada’s relationship with Indigenous peoples. The purpose of this Act is to affirm the Declaration as an international human rights instrument that can help interpret and apply Canadian law.
In October 2023, the Northwest Territories (NWT) has enacted legislation to facilitate the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
In June 2024, Vancouver became the first Canadian municipality to adopt an UNDRIP action plan.
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