The Supreme Court of Canada has agreed to hear British Columbia’s challenge of a lower court ruling related to the province’s mineral tenure system and its reconciliation law.
B.C.’s government has said the December ruling from the B.C. Court of Appeal on Gitxaała v. British Columbia leaves the province vulnerable to legal challenges tied to the Declaration on the Rights of Indigenous Peoples Act (DRIPA).
B.C. applied to Canada’s top court in February to hear an appeal of the ruling. The Supreme Court approved that application on Thursday.
B.C.’s Attorney General Niki Sharma said the province is pleased it will have the chance to argue the case before Canada’s highest court.
“We’ve been pretty clear that we disagree with aspects of the decision,” she said.
Sharma said the province will continue discussions with First Nations on a solution that could address the province’s legal concerns stemming from the ruling.
The B.C. government put off plans to table legislation to amend or suspend parts of DRIPA during the spring legislative session, following vocal opposition from First Nations leaders.
Sharma didn’t rule out the possibility of tabling legislation to amend DRIPA in the fall, despite the uncertain outcome of the Supreme Court challenge.
“I think it does make sense to continue our discussions with First Nations, and we’re having discussions on solutions that have a range of possible outcomes, whether legislative or not,” said Sharma.
Premier David Eby said Thursday the Supreme Court’s willingness to hear the challenge is “helpful,” but he also wouldn’t rule out other routes for the province, including future changes to DRIPA.
“The piece that we have to deliver, though, is that answer to how we move forward, how we deliver that certainty — maybe through the Court, maybe through negotiations. We’re not closing any doors. The goal here is just to find that certainty,” he said.
Premier David Eby has previously said amendments were needed to get back to the original intent of DRIPA, which he said is to allow the province to work toward reconciliation with First Nations outside of the courts.
DRIPA was introduced in 2019, establishing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) as the province’s framework for reconciliation.
A 2023 B.C. Supreme Court decision found B.C.’s “free entry” mineral tenure system breached the province’s duty to consult with First Nations, but the judge declined to rule on whether B.C. had a legal duty to align the Mineral Tenure Act with UNDRIP.
The Gitxaała Nation and Ehattesaht First Nation launched a partial appeal, and in December two of three B.C. Court of Appeal judges said the old mineral claim system was inconsistent with UNDRIP and that the province has a legal duty to co-operate with First Nations to align its laws with the declaration.
A key part of the ruling said disputes about whether provincial laws align with UNDRIP can be decided by courts.
The dissenting judge agreed UNDRIP has legal effect in B.C. but said courts should not decide whether laws are inconsistent with the declaration.
The province is asking the Supreme Court of Canada to decide whether courts have the authority to declare laws inconsistent with UNDRIP and whether courts should treat UNDRIP as if it already applies to all B.C. laws.
Todd Stone, head of the Association for Mineral Exploration BC (AME), said his organization is considering whether it will seek intervenor status, as it did in the initial case.
He notes that a Supreme Court of Canada decision on the case could be months or years away, and encouraged all B.C. parties to work on amendments to DRIPA.
“By the province deciding to kick the ball down the field and not move forward with the amendments … this has just resulted in uncertainty growing by the day for our sector and for the economy,” said Stone.
B.C. Conservative Indigenous relations critic Scott McInnis said the Supreme Court of Canada hearing offers a “glimmer of hope.”
“This is a long term potential solution. In the meantime, we certainly haven’t seen any leadership from this government as far as addressing the issues that are in front of us right now,” he said.
The Gitxaała elected and hereditary leadership said in a statement Thursday they welcome the opportunity to make their case to the Supreme Court of Canada.
“While we would have preferred that BC respect the BC Court of Appeal decision, we agree that the case raises ‘novel issues of national importance’ and are unsurprised that the Supreme Court of Canada agreed to hear the case,” the leaders said.
“The Supreme Court of Canada will determine whether the commitments made by BC in DRIPA are legally enforceable in Court, or, as BC claims, merely political promises,” they said. “From the get-go, BC has attempted to deny accountability for its promises to align laws with Indigenous human rights standards, even going as far as to threaten amendments to DRIPA to deny Nations access to the courts.”
There is no hearing date set for the case, but the leaders said the court is expected to hear the case in spring 2027.
