In December 2025, the British Columbia Court of Appeal (BCCA) ruled that the Declaration on the Rights of Indigenous Peoples Act (Declaration Act) incorporates the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into the positive law of British Columbia, effective immediately. The court emphasized that the Declaration Act provides an interpretive framework for BC laws and establishes minimum standards for assessing those laws. Consequently, the Crown has a statutory duty to consult and collaborate with Indigenous Peoples in the province to address any inconsistencies between the rights and standards outlined in UNDRIP and BC laws.

While First Nations in BC celebrate this decision, which strengthens the recognition of Indigenous Peoples’ inherent rights, some uncertainties remain following the ruling. Several industry groups have expressed concerns, stating that the decision has created confusion regarding business operations and reconciliation efforts in BC. They are advocating for amendments to the Declaration Act and the Interpretation Act.

This decision should not be viewed through a “zero-sum” lens, where one party’s gain equates to another’s loss. Instead, it should be seen as an opportunity to improve relationships through collaborative engagement and to foster reconciliation. Political actors from both the BC government and First Nations can leverage this decision to enhance reconciliation efforts by collaborating on reforms to the Mineral Tenure Act (MTA). The goal is to ensure that these reforms uphold the rights of Indigenous Peoples while also providing strong environmental and climate safeguards for mining and mineral resource operations.

Free entry system and the Gitxaala impact

The free entry mining system allows individuals or corporations to explore and stake mineral claims on most Crown (and some private) lands without prior government approval, although they must comply with regulatory requirements. Traditionally, this system grants the right to stake a mineral claim, obtain title to the minerals, and develop or mine the discovered resources on the land. This system is characterized by a miner’s ability to physically enter any open Crown land, whether surveyed or not, that is not already subject to a claim and to stake a claim on any potential minerals found below the surface.

In British Columbia, the Mineral Tenure Act governs the registration of mineral and placer titles and provides the policy framework for mineral title administration. The Act also establishes a digital staking system—Mineral Titles Online (MTO)—which enables individuals and corporations to stake claims through an online platform. Mining activities predominantly occur in the traditional territories of Indigenous Peoples, where claims can be staked without consulting these communities. Indigenous nations regard the free entry mining system as an infringement on their existing land rights and sovereignty, as recognized under section 35 of the Constitution Act.

In October 2021, the Gitxaala Nation and the Ehattesaht First Nation filed a petition against the British Columbia Chief Gold Commissioner (CGC) in the BC Supreme Court. They claimed that the mineral tenure system violated the Crown’s duties under s. 35 of the Constitution Act, 1982, and their rights as recognized in UNDRIP and the Declaration Act, introduced and unanimously passed by the British Columbia Legislative Assembly in 2019. In September 2023, the BC Supreme Court ruled in favour of the petitioners, finding a breach of the duty to consult as established in s. 35 of the Constitution Act and the precedent set in the Haida Nation case.

However, the court also asserted that the Declaration Act did not incorporate UNDRIP into the laws of British Columbia, noting that UNDRIP remains a non-binding international instrument. Additionally, the court dismissed the petitioners’ claims regarding inconsistencies between the mineral claims regime and the Indigenous rights recognized in the Declaration Act and UNDRIP. Subsequently, the Gitxaala Nation and the Ehattesaht First Nation appealed these rulings to the BCCA.

This decision initiated the ongoing revision of the Mineral Tenure Act to ensure proper consultation with Indigenous Peoples. The reform aims to address the social, environmental, and economic priorities of First Nations, the province, and the mining industry while promoting a responsible and progressive mineral exploration and mining sector in the province, and honouring First Nations’ rights.

On the other hand, the Mineral Claims Consultation Framework (MCCF) was implemented (effective March 26, 2025) to replace the automatic claim registration system with an application-based system that includes consultation with First Nations. The MCCF emphasizes implementing the province’s duty to consult and accommodate under s. 35 of the Constitution Act, following the court’s ruling in this case.

Opportunities arising from the Gitxaala Decision and Mineral Tenure Act reform

The reform of the Mineral Tenure Act presents several opportunities, particularly the ending of the “free entry” system and the implementation of mandatory consultation and collaboration with Indigenous Peoples throughout all stages of exploration. It is crucial to also incorporate stronger environmental safeguards and climate-resilient practices in this modernization process. Mining significantly contributes to climate change, accounting for 4-7% of global greenhouse gas (GHG) emissions. Mining activities, which involve heavy machinery, transportation, and processing, also lead to environmental degradation, land erosion, and air pollution. As these activities contribute to climate change, mining operations in regions vulnerable to climate risks become increasingly susceptible to recurrent shocks.

To address these environmental and climate concerns, the reform of the Mineral Tenure Act should include early climate sensitivity screening during the claims registration stage. This screening should ideally be part of the early consultation package with Indigenous Peoples, prior to the granting of any claims. By doing so, provincial authorities, in collaboration with Indigenous governments, can assess the climate vulnerability of proposed areas to ensure that claims are not awarded in regions particularly sensitive to climate change.

Additionally, the reform should acknowledge Indigenous rights and governance as outlined in UNDRIP and the Declaration Act. This includes incorporating Indigenous knowledge into land and ecosystem management practices. The approach should shift from the current procedural requirement of Indigenous consultation to a model of co-management and shared decision-making. This would ensure that Indigenous knowledge and governance play a vital role in addressing environmental and climate risks related to mining and mineral governance. Such a model could serve as a precedent for other jurisdictions in how Indigenous knowledge can be utilized to mitigate the impacts of mining on climate change, especially on Indigenous lands.

Another crucial step in this modernization is the implementation of Article 32(2) of UNDRIP, which obligates states to consult and cooperate in good faith with Indigenous Peoples to obtain their free, prior, and informed consent before undertaking any project that affects their lands and resources. As highlighted by the appellants in this case and the comments from the BCCA majority, it is essential for government-to-government collaboration to define precisely what the principles of free, prior, and informed consent entail in accordance with Article 32(2) of UNDRIP. The reform of the Mineral Tenure Act provides an opportunity for these important discussions. These collaborations could lead to the establishment of ongoing obligations for mineral lease holders to demonstrate to Indigenous Peoples how their mining and exploration activities will adapt to changing environmental and climate conditions.

Effects of measures on mining and mineral resource investment

The BCCA decision, which affirmed that the Declaration Act incorporates UNDRIP into the positive law of BC with immediate legal effect, has caused significant concern within the mining and mineral investment community. Industry associations, which represent corporations and individuals accustomed to quickly acquiring subsurface rights under BC’s “free entry” mining regime, are calling for an appeal of this decision to the Supreme Court of Canada and for amendments to the Declaration Act.

The Association for Mineral Exploration noted that the BCCA’s decision “has cast confusion on business and reconciliation.” While such reactions may seem exaggerated, they reflect genuine concerns that implementing UNDRIP—particularly Article 32(2)—could lead to longer project timelines and increased costs due to mandatory prior consultations and additional procedural requirements. Investors have typically relied on fast claim staking and speculative tenure acquisition.

However, the implementation of UNDRIP does not eliminate mining and mineral resource projects. Instead, it strengthens the regulatory framework governing these operations. By addressing systemic risks that often cause delays or derail projects—such as lengthy litigations and production interruptions stemming from unresolved Indigenous rights—the implementation of UNDRIP can provide greater investment certainty. It can minimize some of the speculative elements associated with these projects, as prospectors and investors will be able to tackle potential issues early on.

Early consultation and collaboration with Indigenous Peoples can enable mining and mineral resource projects to progress without the fear of social opposition or legal challenges related to Indigenous rights. Additionally, as investors increasingly consider environmental, social, and governance (ESG) performance metrics in their decision-making, UNDRIP’s implementation in BC could further bolster the province’s reputation as a low-risk and stable jurisdiction for long-term mining investments.

Conclusion

Although the BC Court of Appeal’s decision has been appealed to the Supreme Court of Canada, enacting these measures within the ongoing reform of the Mineral Tenure Act will create a framework essential for effectively implementing UNDRIP in the province. These measures will respect and protect Indigenous rights, promote sustainable resource use, and foster collaboration in resource management, all of which are crucial for reconciliation. Moreover, this approach will help maintain a stable socioeconomic environment that is vital for ongoing economic investment in mining and mineral resource projects, ensuring that Canada remains a leader in critical minerals for the green transition.