B.C. premier wrestles with UNDRIP implementation fallout

Court ruling rocks B.C.'s mineral rights system

B.C. Premier David Eby has expressed openness to revising the province's Declaration on the Rights of Indigenous Peoples Act (DRIPA) following a B.C. Court of Appeal ruling that found the legislation incompatible with the current system for granting mineral rights.

"It is absolutely crucial that it is British Columbians, through their elected representatives, that remain in control of this process, not the courts," B.C. Premier David Eby said. The premier indicated that the government might amend the DRIPA legislation to clarify its original intentions.

According to Amanda Stutt with MINING.com, the British Columbia Court of Appeal (BCCA) determined in a new ruling this past Friday that the province's Declaration on the Rights of Indigenous Peoples Act (DRIPA) incorporates the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and creates legally enforceable obligations.

The BCCA case, Gitxaala v. British Columbia (Chief Gold Commissioner), was a partial appeal by the Gitxaala and Ehattesaht First Nations, following a 2023 BC Supreme Court (BCSC) decision that ruled the province's automatic online mineral claim system breached its constitutional duty to consult, but had limited interpretation of DRIPA.

The ruling came in response to a legal challenge from the Gitxaała and Ehaattesaht First Nations, who argued that the automatic online registration of mineral claims violates the duty to consult impacted First Nations as outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

A full copy of the B.C. Court of Appeal ruling is found here.

Gitxaała Chief Councillor Linda Innes emphasized the need to update the province's mineral rights regime, stating, "There is absolutely no consultation with the nation, no notification. Anybody with a few dollars can stake a claim online." She called the current system "antiquated" and expressed a preference for working directly with the province rather than resorting to legal action.

The court ruling revealed differing interpretations among the judges regarding the legislation's impact on the province's ability to manage mineral rights. Two judges argued the adoption of UNDRIP has an immediate impact on all B.C. laws, while the dissenting opinion contended that it is not the court's role to adjudicate inconsistencies between existing laws and the new legislation.

In response to the ruling, the Independent Contractors and Businesses Association (ICBA) has called for immediate action from Premier Eby. Chris Gardner, ICBA President, stated, "British Columbians were told by David Eby and the NDP that DRIPA was about symbolism, reconciliation, and 'frameworks' – but the Court of Appeal makes it clear DRIPA is now hard law with sweeping consequences for every statute, regulation, permit and project in this province."

The ICBA is urging the government to take four immediate steps: recall the Legislature and repeal DRIPA, repeal section 8.1 of the Interpretation Act, reinvigorate the treaty negotiation process, and protect private property rights. Gardner argued, "Layering DRIPA, UNDRIP and section 8.1 over top of the Canadian constitution has created an unstable legal, investment and business climate that will slow down or stop everything we need to build – homes, hospitals, schools, roads, bridges, ports, mines, and other infrastructure."

As the situation unfolds, Premier Eby remains committed to working with First Nations while seeking to maintain control over the implementation of UNDRIP through elected officials rather than the courts. Chief Councillor Innes expressed hope for collaborative efforts, stating, "We are here and we're looking forward to working with B.C. and all parties to implement today's precedent-setting decision."