I. INTRODUCTION
In this article, we seek to overview current uses and abuses of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”)[1] in Canadian courtrooms, particularly in so far as these developments have implications in generating additional uncertainties for the Canadian energy sector. After setting out some basic background on UNDRIP and on UNDRIP-related legislation, we will turn to the rather underdeveloped approaches of the Supreme Court of Canada and then to three lower court cases pressing the issues forward: the Gitxaala v British Columbia (Chief Gold Commissioner) case,[2] the sweeping decision of Justice Bourque in her last judgment in the Québec Superior Court in the Montour and White case,[3] and the early decision of Justice Blackhawk in her judgment in the Kebaowek First Nation v Canadian Nuclear Laboratories Inc case.[4] All three decisions are under appeal, but we will show how citations between cases ahead of the appellate level magnify the impact even of decisions that may be overturned. More generally, we will argue that some of these cases manifest highly surprising dimensions and risk generating very significant legal uncertainties.
To develop our argument, Part II sets out basic background on UNDRIP, and Part III sets out background on the UNDRIP legislation in British Columbia and at the federal level. In Part IV, we survey a number of attempted invocations of this UNDRIP legislation in courtrooms, showing that there have been surprisingly rapid attempts to extend the implications of this legislation in courtrooms. In Part V we trace the Supreme Court of Canada’s references to UNDRIP, showing that they began very modestly but have started to be shaped by this legislation to some degree. In Part VI, we discuss briefly the Gitxaala v British Columbia (Chief Gold Commissioner) case, showing how the trial judge stuck more closely to the legislative history of British Columbia’s UNDRIP legislation. In Part VII, we discuss Montour and White and its use of the federal UNDRIP legislation to more substantially reshape major precedents. In Part VIII, we discuss Kebaowek and a number of challenging features within its reasoning on UNDRIP. In Part IX, we draw some very brief conclusions.
II. UNDRIP BACKGROUND
In thinking about how UNDRIP is being used today and how it should be used, it is helpful to set out some basic UNDRIP background. UNDRIP was adopted by a resolution of the United Nations General Assembly in 2007, meaning that it is already almost two decades old. That adoption followed on a multi-decade process that started with Indigenous drafting of a Draft Declaration, put forth in 1994,[5] and then was followed by a period of negotiation with states, which led to a very different document than the Draft Declaration would have been.
In the end, UNDRIP was adopted as a resolution of the United Nations General Assembly. The General Assembly is not a legislative body. Indeed, there is there no international legislative body. However, some resolutions of the General Assembly can be very significant as it can express the view of the world community on different issues. The Universal Declaration of Human Rights (“UDHR”) emerged as a United Nations General Assembly resolution.[6] It led to the adoption of international treaties in the form of the two international covenants that created legally binding treaties. UNDRIP has not had similar effect (at least as yet), but it arguably has significance in other ways as an important normative instrument expressing an agreed view amongst those affected by it, both states and Indigenous peoples.[7]
In 2007, Canada voted against UNDRIP. However, it offered subsequent endorsements in 2010 and in 2016.[8] We could argue about the different qualifications on those two endorsements and how different they actually were — the significance of the 2016 endorsement may sometimes be overstated — but Canada’s subsequent endorsement is in any event of significance.
Given that UNDRIP is not a treaty and not legislation, one could ask how it has legal effects in Canada. There are several ways in which it could conceivably do so. In terms of direct legal effects, parts may express norms of customary international law that may then be brought into Canadian law, parts may help to develop customary law that is still crystallizing, and/or UNDRIP may help to identify how international treaties are interpreted in the specific circumstances of Indigenous peoples.[9] It could have these sorts of direct legal effects and/or it could simply affect states and encourage them on paths towards domestic implementation of UNDRIP-style norms. The latter aspect has perhaps become the most significant dimension in Canada in so far as UNDRIP has encouraged the adoption of implementing legislation federally as well as in one province and one territory.
III. UNDRIP-RELATED LEGISLATION
Canada and its subnational units have taken several legislative steps regarding UNDRIP since it was endorsed by the federal government in 2016. Despite some efforts at the federal level in a private member’s bill introduced over a number of years by former NDP Member of Parliament Romeo Saganash,[10] the province of British Columbia was the first mover on the legislative front. In 2019, British Columbia adopted the British Columbia Declaration on the Rights of Indigenous Peoples Act (“BCDRIPA”).[11]
Subsequently, an amendment was made to section 8.1(3) of British Columbia’s Interpretation Act,[12] stating “Every Act and regulation must be construed as being consistent with the Declaration.” The amendment, while adopted after BCDRIPA, has received surprisingly limited attention. One would expect Indigenous parties — or even non-Indigenous parties, since the law is about interpretation generally, and some might prefer different interpretations than presently exist — might have taken up the amendment and argued for different interpretations of British Columbia legislation and regulatory provisions. However, at this time, the amendment has only been cited four times and not given an overly thorough treatment.[13] The most comprehensive judicial guidance comes from the Gitxaala decision, where Ross J. clarifies that s. 8.1, which anchors s. 8.1(3) “acts as an interpretive aid during the entirety of the interpretive process, and not a mere ‘confirmatory’ role at the end.”[14] Understood this way, s.8.1(3) requires BC enactments to be interpreted in a manner consistent with UNDRIP at each step of the statutory interpretation process but with little detail developed in the courts on what that might ultimately mean.
The next legislative move came in 2021, following the federal government’s adoption of the United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDRIPA”).[15] The federal statute was adopted as government legislation. More recently, the Legislative Assembly of the Northwest Territories adopted the United Nations Declaration on the Rights of Indigenous Peoples Implementation Act,[16] which has its own approaches warranting separate attention.
For purposes of this article, it is most important to focus on the federal UNDRIPA and British Columbia’s BCDRIPA. The operative provisions found in each statute are closely analogous in several respects. These are: (1) a commitment to seek to harmonize the laws of the jurisdiction with UNDRIP; and (2) a commitment to ongoing action plans to pursue the objects of the UNDRIP.[17] The operative provisions do not extend beyond these two fundamental commitments, both of which are significant but are to take place over a period of time.
At the time BCDRIPA was adopted, British Columbia Premier John Horgan spoke about it being “the start of a process”.[18] As matters moved forward with the federal UNDRIPA, federal Minister of Justice David Lametti said, “Implementing the United Nations Declaration on the Rights of Indigenous Peoples is generational work.”[19] These and similar statements have made clear the nature of both statutes as launching processes and further detailed work. In light of the statutory commitments at the federal level and in British Columbia, there is extensive work to do with the various detailed provisions of UNDRIP that cut across all areas of law. With these two statutes, those working in any area of law need to be thinking about UNDRIP, not because of any prospect of taking it into court immediately, but because there will be ongoing legislative and policy reforms underway that affect every area of practice.
The purposes of the two statutes, those sections which normally shape the interpretation, the section that specifies what the purpose of the statute is, in both the BCDRIPA and the UNDRIPA, do not have the operative provision that the federal private member’s bill C-262 was going to have, which was an operative provision stating that UNDRIP “is hereby affirmed as a universal international human rights instrument with application in Canadian law.”[20] That language does not exist in other Canadian statutes and could have had highly unpredictable effects.[21] In the versions actually adopted, that language ended up not being part of the operative provisions in the statutes but in purpose clauses that may simply help to shape the interpretation of the statutes.
IV. ATTEMPTED INVOCATIONS OF THE UNDRIP-RELATED LEGISLATION IN CANADIAN COURTROOMS
While both the federal UNDRIPA and the provincial BCDRIPA were enacted on the basis that they set the stage for gradual change and were not to be invoked immediately into courtrooms, the attempted invocation of these statutes into court is precisely what has happened — and quickly.
In 2021, there were attempts by two intervenor parties to invoke BCDRIPA in the Supreme Court of Canada in R v Desautel,[22] with the attempted invocations being put to argue for tangible results. One intervener, the Lummi Nation, advanced the argument that “[British Columbia’s] DRIPA explicitly requires that all provincial laws are consistent with UNDRIP. As a result, UNDRIP is no longer a non-binding international instrument but has the status and force of domestic legislation. As such, it is the text of UNDRIP that is a primary source of meaning or interpretation.”[23] Another intervener, the Nuchatlaht First Nation, took the position that “… a Crown pleading in a s.35 rights case is a government ‘measure’ within the meaning of the Act. The Appellant is therefore statute-barred from advancing any argument in this court which would be inconsistent with UNDRIP.”[24] While it is laudable that government lawyers act in a manner consistent with the overall obligations and policy of the government, a specific rule statute-barring particular lines of advocacy would be highly constraining of legal discussion and undermine the ability of the courts to receive the full range of submissions that might bear on a matter. The Court ultimately did not reference these interventions in its decision, leaving them as what we would consider implicitly rejected attempts to shift the nature of the statute.[25]
These attempts were not an isolated incident, and there were intervenor efforts in a series of cases decided in 2024 to get the Supreme Court of Canada to ascribe more immediate substantive significance to UNDRIPA. For example, in the Indigenous Child Welfare case,[26] the Union of British Columbia Indian Chiefs (“UBCIC”) argued that even though the statute did not make UNDRIP binding per se, it was meant to give it significant weight in Canadian law.[27] In Dickson v Vuntut Gwitchin First Nation,[28] the “Pan-Canadian Forum on Indigenous Rights and the Constitution” sought to develop an extended principled approach to using UNDRIPA in judicially altering Canadian law.[29] In Shot Both Sides,[30] the intervenor Innu Takuaikan Uashat Mak Mani-Utenam argued that UNDRIPA had changed the Canadian legal landscape and implied substantive legal effect to UNDRIP.[31] In Restoule,[32] the Assembly of First Nations (“AFN”) argued for giving weight to UNDRIPA’s preamble and argued for a province to be under a presumed obligation to conform to Canada’s federally adopted commitments on UNDRIP.[33] Obviously, some of the submissions go beyond the scope of legitimate approaches to statutory interpretation and violate principles of federalism, but those realities have not stopped them from being made. Moreover, even while no judgment has specifically mentioned any of these submissions, the gradual accumulation of such submissions may have influenced the Supreme Court of Canada into some statements ascribing legal significance to UNDRIPA, albeit still relatively ambiguous statements at the present time, the matter to which we now turn.
V. SUPREME COURT OF CANADA CITATIONS TO UNDRIP
The Supreme Court of Canada was resistant to citing UNDRIP for many years. Aside from a surprising earlier citation to the 1994 Draft Declaration in Mitchell v MNR,[34] the Court for a long time said nothing about UNDRIP, despite numerous opportunities and, indeed, invitations to do so. Various cases saw intervenor groups attempt to argue that UNDRIP should influence how the case was decided. For example, in Tsilhqot’in Nation v British Columbia, there were submissions on how the UNDRIP provisions on land rights should help to shape Canada’s law of Aboriginal title, but these were ignored by the Court. In Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations),[35] a highly critiqued case involving religious freedoms, several intervenors argued for the significance of UNDRIP as a source to be considered. Notably, in that case, the Court opted to engage with other international human rights law instruments on religious freedom but without reference to UNDRIP, awkwardly showing a direct distinction between different international soft law instruments to the disadvantage of Indigenous peoples.
In Mikisew Cree First Nation v Canada (Governor General in Council),[36] when considering whether the duty to consult applies to legislative action, the Supreme Court of Canada’s decision did not feature references to UNDRIP. This was the case even in the context of an UNDRIP article that could be seen as directly on point, with article 19 explicitly requiring consultation and cooperation prior to the adoption of legislative or administrative measures that affect Indigenous peoples.[37] Some law professors wrote critically of the decision and argued that the Court was wrong not to recognize UNDRIP.[38] However, given that UNDRIP was not mentioned in oral argument and barely mentioned in factums — with one factum having a very brief mention but citing to the wrong article of UNDRIP[39] — it is frankly difficult to see the case as one where the Court ought on its own initiative to have engaged in an extensive discussion of UNDRIP. By this point, advocates had practically abandoned the idea of putting UNDRIP before the Court.
In that sense, the federal UNDRIPA arguably led to new initiatives to argue UNDRIP, and UNDRIPA appears to have encouraged the Court to reference both the legislation and UNDRIP itself. In Reference re an Act respecting First Nations, Inuit, and Metis children, youth and families,[40] the Court says that “the Declaration has been incorporated into the country’s positive law by the [UNDRIPA], s.4(a).”[41] In doing so, the Court does not outright draw anything from UNDRIP but rather reads the legislation as part of implementation and mentions that it has been incorporated into Canada’s positive law. However, that brief, factual statement that could be read as simply stating that UNDRIP had been cited in a statute lent itself to further-extended readings that now make UNDRIP much more significant within the Court’s jurisprudence.
In Dickson v Vuntut Gwitchin First Nation,[42] a case concerning the application of the Canadian Charter of Rights and Freedoms to Indigenous governments, the majority notes the “consonance” of its positions with UNDRIP.[43] The idea of looking for “consonance” now attributes a form of persuasive authority to UNDRIP, marking a significant step. The separate opinion of Martin and O’Bonsawin JJ goes even further, appearing to take UNDRIP and UNDRIPA as authority for recognizing a right to self-government.[44] The brief paragraph suggests that self-government is a way of preserving the collective and individual rights of Indigenous peoples. While Martin and O’Bonswain JJ astutely highlight that both collective and individual rights are contained in UNDRIP, there is little reasoning from that generality to the very specific conclusion that self-government must now be recognized in Canadian constitutional law in a general form (contrary to the Court’s own past precedent, it bears noting). Interestingly, while the effect of his separate opinion is actually most inclined to suggest that the sovereignty of Indigenous governments exempts them from application of the Charter, something arguably fitting well with UNDRIP’s emphasis on self-determination, Rowe J’s opinion reaches that conclusion without citing to UNDRIP.
These two decisions may simply be testing the waters in some respects. After many years of not offering any clarity on UNDRIP when asked to do so, the Supreme Court of Canada managed to discourage further argument based on UNDRIP. Then, when the new legislation seemed to open new possibilities, the Court seemed to respond to new advocacy on UNDRIP in these two cases, while ignoring the intervenor arguments on UNDRIP in other cases the same year. The Court has been unfortunately inconsistent and undertheorized in its approaches. Much work remains for the lower courts, although in now turning to three recent decisions, we will see that principles are also emerging there in an inconsistent manner.
VI. GITXAALA V BRITISH COLUMBIA (CHIEF GOLD COMMISSIONER)
In Gitxaala,[45] a judge of the British Columbia Supreme Court rejected the argument that courts could, in effect, invoke BCDRIPA to unilaterally strike down BC laws inconsistent with UNDRIP. In doing so, the Court clarified that the legislative intention of BCDRIPA does not have the effect of inviting judicial intervention. Rather, it contemplates ongoing cooperation between the government and Indigenous peoples to align existing laws and future legislation with the principles of UNDRIP.
In April 2023, two British Columbia First Nations argued that the Court could use BCDRIPA to essentially strike down provisions of the province’s mineral tenure system. The Mineral Tenure Act[46] (“MTA”) permits free miners to register a “mineral claim” on unclaimed Crown land and grants claim holders various exploration and search rights, not including the right to extract minerals for commercial purposes, which requires approvals governed by the Mines Act.[47] Consultation with potentially affected First Nations occurs at the later permitting stage, not prior to granting the mineral claim, which raised pertinent questions about the Crown’s duty to consult upon the operation of the MTA. Given the adverse physical impacts resulting from granting mineral rights, the Court held that British Columbia would need to fundamentally amend parts of the existing legislation to comply with the duty to consult doctrine.[48]
In terms of the effect of UNDRIP and BCDRIPA, the Court decided two issues:
1. Did DRIPA implement UNDRIP into the domestic law of British Columbia?[49]
2. Does s.3 of DRIPA raise justiciable questions of law? If so, what are they?[50]
The Court answered both questions in the negative, justifying its decision to use BCDRIPA as “an interpretive aid in addressing the proper reading of the MTA.”[51] First, finding that section 2 of BCDRIPA, the “purposes” provision, should be read as statements of purpose that can bear on interpretation and help give meaning to the substantive provisions found in the legislation.[52] Justice Ross relied on Hansard and legislative context to conclude DRIPA did not implement UNDRIP into BC law. BCDRIPA in effect calls for a process of cooperation and consultation to “prepare, and then carry out, an action plan to address the objectives of UNDRIP.”[53] Accordingly, on the question of justiciability, section 3 of BCDRIPA, which provides “the government must take all measures necessary to ensure consistency” should not be understood as a rights-creating provision that grants courts the authority to immediately invalidate legislation. Justice Ross recognized that courts possess both the institutional capacity and legitimacy to assess whether laws align with the rights outlined in UNDRIP.[54] However, section 3 does not impose a requirement of consistency, requiring courts to unilaterally adjudicate every instance where a law may be inconsistent with UNDRIP.[55] Instead, section 3 envisions an ongoing cooperative process involving Indigenous peoples in British Columbia, rather than giving the courts the unilateral right to strike down legislation immediately.
While some scholars who generally argue for the expansion of Indigenous rights have candidly admitted that the Court is right on the limited scope of BCDRIPA,[56] there has nonetheless been a sort of chorus of criticism of the Court for not making more of the legislation.[57] For example, British Columbia Human Rights Commissioner Kasari Govenderissued a press release with a title referring to being “dismayed” by the Court and rhetorically stating that “[t]he Declaration Act should not be merely symbolic — yet, today’s decision indicates that the UN Declaration on the Rights of Indigenous People still does not have the force of law in B.C.”.[58] This sort of harsh criticism of the Court for interpreting a statute according to its text and intentions illustrates the heated environment around these cases.
We take the view that the decision is consistent with the legislative history and the legislation. The legislative history indicates BCDRIPA was designed to foster a process over time, in which the government would work on the consistency of its legislation via an action plan reviewed every few years. British Columbia’s Minister of Indigenous Relations and Reconciliation, Scott Fraser, said during debate, “With the passage of this bill, this will still be an interpretive tool. Bill 41 brings no legal force and effect to the UN declaration. What our intention is and our commitment is, clearly and publicly, is to work with Indigenous peoples in this province to bring our laws — if they’re existing ones, future ones — into alignment over time with the UN declaration.”[59] The introduction of the bill received unanimous support based on assurances that it would not immediately strike down existing laws. Therefore, the legislative history supports interpreting BCDRIPA as an instrument for generational change through ongoing processes.
An appeal has been heard, with a decision expected this year. The appellate guidance is worth paying attention to, given the similarity of BCDRIPA to the federal UNDRIPA legislation.
VII. R V MONTOUR AND WHITE
In R v Montour and White,[60] Justice Sophie Bourque of the Québec Superior Court released the final judgment of her judicial career in a highly novel judgment on a broad range of Aboriginal and treaty rights questions. Using a novel legal test in place of the Van der Peet test, Bourque J held that the right to freely determine and pursue economic development is a generic right shared by all Indigenous peoples, as established by UNDRIP and protected by the traditional legal system of the Mohawks of Kahnawà:ke.[61] On a separate issue, the judgment also determined that the Crown unjustifiably infringed its obligation under the Covenant Chain, a treaty between the Haudenosaunee and the British as recognized by s. 35(1), by limiting the right to trade tobacco through the imposition of excise duties and criminal charges under the Excise Act.[62]
As a part of a lengthy 1696 paragraph decision, Bourque J. used the federal government’s adoption of UNDRIPA as evidence of a change in circumstances meeting the Bedford/Carter standard for lower courts to overrule SCC decisions, to hold in relation to UNDRIP that the Van der Peet test must be overturned, and to create a replacement test, all in the course of a fairly small number of paragraphs.[63] Unsurprisingly, the Attorney General of Québec has appealed the judgment. Nevertheless, there has been widespread comment against Québec seeking further judicial guidance on the groundbreaking ruling.[64]
Justice Bourque cites to the Bedford/Carter standard at some length in considering the possibility of using UNDRIPA to overturn past precedent.[65] In Canada (Attorney General) v Bedford[66]and Carter v Canada (Attorney General),[67] the Supreme Court defined the limits of vertical stare decisis on lower courts. The Court held that lower courts could depart from precedent set by higher courts in two circumstances: (1) where a new legal issue is raised and (2) where there is a change in circumstances that “fundamentally shifts the parameters of the debate.”[68] In what she framed as her application of this standard, Justice Bourque held that presumption of conformity with UNDRIP, the endorsement of UNDRIP “without qualification,”[69] and the adoption of the UNDRIPA constitute new legal issues not raised before the SCC in Van der Peet. Further, the entire social landscape underpinning the decision has changed.[70] As such, Bourque J held that exceptional circumstances exist to overturn Van der Peet and develop a new framework for s.35(1) claims.
Academics have extensively critiqued the Van der Peet “integral to a distinctive culture” test over the years. In addition to arguments about the potential culture-freezing effects of the test, some critiques include that subsequent applications of the Van der Peet test have seen the court have to make ad hoc adjustments to parts of the test to make it fit other s.35 contexts, leading to peculiar cultural limits on the scope of property rights and other rights.[71] The Court in Montour found Van der Peet inconsistent with UNDRIP because recognition of rights is limited to specific practices.[72] Accordingly, the Court posited that the current test is unable to capture modern rights with economic impacts, which hampers rights articulated in UNDRIP that depend on the right to develop an autonomous economy because “without independent financial leverage, most collective rights are just empty shells.”[73]
The replacement test created by Justice Bourque departs from the Van der Peet test, which is oriented towards customs, practices, and traditions, to a framework that contemplates whether the right under consideration “is a right protected by the traditional legal system of the Indigenous peoples claiming the right.”[74] Thus, the Court must determine which rights are protected by Indigenous legal systems as opposed to the frozen “integral idea.”
The reformed s.35(1) test devised in Montour imposes three burdens on applicants to determine whether a right invoked is protected by the traditional legal system of Indigenous peoples claiming the right:
1. It will require first to identify the collective right that an Applicant invokes;
2. Then, an Applicant will have to prove that such a right is protected by his or her traditional legal system; and
3. Finally, an Applicant will have to show that the litigious practice or activity in question is an exercise of that right.[75]
This represents a notable shift, as it may have the potential to influence the outcomes of various Aboriginal rights questions across the country (and, in the meantime, also potentially alters the duty to consult analysis in every consultation situation involving an asserted Aboriginal right, with the prima facie strength of the claim now to be analyzed under a different test). While this amendment could be viewed as a positive and constructive change, it also has the effect of creating an evidentiary barrier for some Indigenous communities, if they are then put in a position of having to prove “sufficient continuity” of a right within an Indigenous legal system rather than proven customs, practices, and traditions.[76] So, there could be unintended consequences, and the highly limited analysis of the alteration of the test within a very lengthy judgment does not show the sort of careful attention that would be appropriate on a change of this magnitude.
A final concern regarding UNDRIP pertains to a significant conclusion on constitutional interpretation. Justice Bourque concluded that UNDRIP “despite being a declaration of the General Assembly, should be given the same weight as a binding international instrument in the constitutional interpretation of s. 35(1).”[77] An argument could then be advanced that UNDRIP could appropriately change the interpretation of the constitution. In principle, if Nevsun Resources Ltd. v Araya,[78] is correct and will be applied, that might also mean parts of UNDRIP become part of Canadian common law outside of the statutory process. Nevertheless, there are some complexities concerning how the decision will work. The question remains: How does the adoption of a federal statute change the interpretation of the Constitution? On a principled level, the adoption of a federal statute cannot legitimately change the interpretation of the Constitution, or one has created an unprincipled new amending formula within the sole power of the federal government.
VIII. KEBAOWEK FIRST NATION V CANADIAN NUCLEAR LABORATORIES
On February 19, 2025, the Federal Court in Kebaowek First Nation v Canadian Nuclear Laboratories[79] purported to adopt the UNDRIP free, prior, and informed (“FPIC”) standard in lieu of the duty to consult, with this adoption being as a result of Canada’s implementation of UNDRIP into domestic law via UNDRIPA. On that basis, the Court found that the Canadian Nuclear Safety Commission’s consultation process for approving a license amendment for Canadian Nuclear Laboratories to construct a Near Surface Disposal Facility at Chalk River Laboratories was inadequate.[80] However, Blackhawk J. also interprets FPIC as mandating a process rather than an obligation to obtain consent.[81] The case is currently under appeal. Some may argue that of the three cases, this one stands out as the most remarkable. Thus, a few key elements require further attention.
First, it is worth noting the impact of the existing authorities. The chosen authorities are significant, particularly the citation to another lower court decision that is not definitive, and it itself is currently under appeal. Blackhawk J. begins by citing Reference re An Act respecting First Nations, Inuit and Métis children, youth and families,[82] along with Montour,[83] to stand for the idea that UNDRIP has been implemented into Canada’s domestic positive law and can be required to inform the interpretation of Canadian law.[84] UNDRIP is described as “an interpretive lens to be applied to determine if the Crown has fulfilled its obligations.”[85] Following this, it is asserted that the Supreme Court of Canada has indicated that the rights articulated in UNDRIP exist, suggesting that what has been legislated in UNDRIPA codifies pre-existing rights.[86]
Interestingly, Gixtaala, which considers the consistency of the provincial mineral tenure system with UNDRIP and BCDRIPA, is referenced only much later in the decision.[87] Here, Blackhawk J. briefly finds that the Gixtaala decision is unpersuasive and distinguishable from Kebaowek, noting that, unlike the former, the issue being contemplated is “not conformity of laws… Rather, the question is whether UNDRIP has been incorporated into Canadian law such that it may inform the interpretation of the duty to consult and accommodate.”[88] A more thorough treatment of the questions raised in Gixtaala would surely have been warranted, given that it considers highly parallel legislation that predates the federal legislation.
These points on sources highlight that ambiguous statements in the Supreme Court of Canada are apt to be read in unexpected ways. They also show that some judges may pick amongst other lower court decisions during this interim phase in which appellate guidance is lacking, thus amplifying the effects of decisions that may ultimately be overturned. This period of legal development gives rise to some significant uncertainties on what might happen in any given case affecting clients.
Second, the general statement in the case that the adoption of UNDRIP via UNDRIPA “…means more than a status quo application of the section 35 framework”[89] is significant. Once again, we observe a lower court taking the view that the adoption of a federal statute changes constitutional interpretation, again adopting that new constitutional amendment process that lets the federal government effect unilateral changes to the constitution that affect the provinces.
Third, operating on the basis that UNDRIP is to be used to interpret the Crown’s analysis of the duty to consult and accommodate, the Court takes an interesting approach of beginning by trying to identify a specific article of UNDRIP into which the case fits. The Court concludes that the proposed Near Surface Disposal Facility project clearly falls within the scope of Article 29(2) of UNDRIP, thereby triggering the UNDRIP FPIC standard. Article 29(2) states that “no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.”[90] As a result, based on this rather distinctive methodology, Blackhawk J suggests that an FPIC standard applies in reshaping the duty to consult.
However, Justice Blackhawk then interprets FPIC as “a right to a robust process…not a veto or a right to a particular outcome.”[91] This interpretation actually corresponds with the mainstream view in international law scholarship, which contends that FPIC in general mandates a right to a process aimed at consent but not necessarily requiring the obtaining of consent on every decision.[92] A divergent stream of thought in international law scholarship contends that FPIC requires a consultation process to obtain consent, sometimes portrayed as a “veto,” which implies an absolute power to override all other considerations.[93]
However, here is where the methodology of fitting matters into article 29 becomes peculiar. As stated, on FPIC generally, Blackhawk J’s approach of saying that FPIC processes do not always require obtaining consent is within mainstream views. However, those holding this mainstream often arrive at it by considering the text of UNDRIP and the distinction between articles that textually require consent and articles that do not textually require consent but simply consultation and cooperation “in order to obtain” consent. Article 29(2) of UNDRIP, which governs the storage of nuclear waste, is one of the rare articles that contains language stating that obtaining consent is mandatory. The only other article with such language is Article 10, which contains a mandatory consent requirement for the relocation of a population. Thus, to say that the methodology of a right to a process is to fit in Article 29(2) is a highly peculiar feature of the decision, raising some broader questions about the cohesiveness of the judgment’s methodology.
The judgment also contains an interesting citation to Article 46(2), the limitations clause of the UNDRIP, which states that UNDRIP rights are not absolute and that States may infringe on UNDRIP rights in limited circumstances.[94] This article is seldom cited, as many scholars and judges alike proceed as if UNDRIP contained no limitations clause, thereby interpreting UNDRIP solely as a rights-affirming instrument in every circumstance. Thus, the Court’s reference is notable, as it suggests possible limits on the effects of the articles of UNDRIP that the Court chose to engage with and suggests that UNDRIP can be interpreted in balanced ways. If courts are going to follow this methodology, using UNDRIP as an interpretive framework, proper engagement with Article 46(2) to interpret the substantive provisions within the Declaration and how they interact with Canadian law is imperative for a more balanced approach.
Finally, it is worth noting the Court’s extensive use of decisions from the Inter-American Court of Human Rights (“IACHR”) to assist with the interpretation of FPIC.[95] The IACHR is the judicial body, based in San José, Costa Rica, established to interpret and apply the American Convention on Human Rights (“ACHR”),[96] a regional human rights treaty in the Americas. Two key aspects should be considered. First, the IACHR decisions referenced were not cited by the parties or raised by the parties for comment. Thus, the Court appears to have engaged with IACHR jurisprudence without first seeking submissions from the parties regarding what these cases should mean in the context of the case before the court. While this practice is not unprecedented, it does not seem like the ideal process in an adversarial system of advocacy. Parties should have a chance to consider the legal arguments included in cases and not be rendered unable to challenge influential arguments advanced by the Court on its own initiative. Second, the IACHR decisions are arguably not applicable in the ways presented by Blackhawk J. In our view, significant methodological issues exist with the Court’s engagement with international law materials. For the most part, the IACHR cases in question interpret the ACHR., As noted, that is a regional human rights treaty in the Americas. It is a treaty ratified by many member states of the Organization of American States (“OAS”) — but not by Canada, thus raising profound questions about the appropriateness of relying upon these cases in interpreting Canadian obligations.[97] In referencing these cases, Blackhawk J. is arguably doing something other than interpreting FPIC in UNDRIP and almost certainly doing something other than interpreting international law materials applying to Canada in the ordinary ways.
Kebaowek represents an ambitious attempt to implement UNDRIP into Canadian law via UNDRIPA, but it is fraught with methodological incoherence. The Court based its analysis on an unsettled legal question as to whether UNDRIPA, a federal statute, alters constitutional interpretation and proceeded on this basis to interpret FPIC as a right to process. This was arguably correct in relation to FPIC in general terms but did not fit well with the language in Article 29(2), the provision which the Court claimed triggered the FPIC standard. Moreover, the Court’s reliance on arguably inapplicable jurisprudence from the IACHR and unsettled legal questions under appeal from Montour raises additional concerns. The decision is under appeal, and those seeking to rely upon it in the meantime should be highly cautious in doing so. However, those who could be affected by its citation by other courts again face significant risks during this interim period.
IX. PRACTICAL IMPLICATIONS AND CONCLUSIONS
We are currently experiencing a period of significant instability regarding the impact of UNDRIP and UNDRIPA legislation on various issues. As a result, we observe a phenomenon in which courts cite each other faster than matters are being resolved at the appellate level, with cases of uncertain authority being cited by other cases of uncertain authority in rendering major decisions. Ultimately, we need a resolution from an appellate court, and ultimately something principled and rigorous from the Supreme Court of Canada.
We also see a phenomenon in which UNDRIP legislation may be invoked in various ways that were assumed against in agreements to pass legislation. Problematic interpretations that deviate from the original legislative intention upon adoption risk rendering positively viewed aspects of the legislation politically contentious and may ultimately lead to the revocation of such legislation in the future. When BCDRIPA was enacted in 2019, it had unanimous support in the BC legislature. Five years later, it was saved from a promised revocation by the new main opposition party in BC only by a knife-edge election result. If legislation is interpreted in ways going beyond the assurances offered at the time of its adoption, we are likely to see an unfortunate heightening of politicization and less sustainable support for Indigenous rights.
For those working in the energy law space, there is also quite possibly now a need to consider UNDRIP-related uncertainties in nearly every case. This even includes considering how to deal with arguments that the other side does not raise but that the judge may rely upon or develop, potentially incorrectly, on the judge’s own initiative. An additional need has arisen for natural resources-related organizations to consider engaging more rigorously on these matters to ensure careful, balanced consideration of these issues in commentary and scholarship. Canadians can be simultaneously proud of their efforts to respond to past wrongs against Indigenous peoples and to advance Indigenous rights while also working to do so in ways that follow proper process, that do not generate economically harmful uncertainties, and that bring people together rather than driving them apart.
I. INTRODUCTION
In this article, we seek to overview current uses and abuses of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”)[1] in Canadian courtrooms, particularly in so far as these developments have implications in generating additional uncertainties for the Canadian energy sector. After setting out some basic background on UNDRIP and on UNDRIP-related legislation, we will turn to the rather underdeveloped approaches of the Supreme Court of Canada and then to three lower court cases pressing the issues forward: the Gitxaala v British Columbia (Chief Gold Commissioner) case,[2] the sweeping decision of Justice Bourque in her last judgment in the Québec Superior Court in the Montour and White case,[3] and the early decision of Justice Blackhawk in her judgment in the Kebaowek First Nation v Canadian Nuclear Laboratories Inc case.[4] All three decisions are under appeal, but we will show how citations between cases ahead of the appellate level magnify the impact even of decisions that may be overturned. More generally, we will argue that some of these cases manifest highly surprising dimensions and risk generating very significant legal uncertainties.
To develop our argument, Part II sets out basic background on UNDRIP, and Part III sets out background on the UNDRIP legislation in British Columbia and at the federal level. In Part IV, we survey a number of attempted invocations of this UNDRIP legislation in courtrooms, showing that there have been surprisingly rapid attempts to extend the implications of this legislation in courtrooms. In Part V we trace the Supreme Court of Canada’s references to UNDRIP, showing that they began very modestly but have started to be shaped by this legislation to some degree. In Part VI, we discuss briefly the Gitxaala v British Columbia (Chief Gold Commissioner) case, showing how the trial judge stuck more closely to the legislative history of British Columbia’s UNDRIP legislation. In Part VII, we discuss Montour and White and its use of the federal UNDRIP legislation to more substantially reshape major precedents. In Part VIII, we discuss Kebaowek and a number of challenging features within its reasoning on UNDRIP. In Part IX, we draw some very brief conclusions.
II. UNDRIP BACKGROUND
In thinking about how UNDRIP is being used today and how it should be used, it is helpful to set out some basic UNDRIP background. UNDRIP was adopted by a resolution of the United Nations General Assembly in 2007, meaning that it is already almost two decades old. That adoption followed on a multi-decade process that started with Indigenous drafting of a Draft Declaration, put forth in 1994,[5] and then was followed by a period of negotiation with states, which led to a very different document than the Draft Declaration would have been.
In the end, UNDRIP was adopted as a resolution of the United Nations General Assembly. The General Assembly is not a legislative body. Indeed, there is there no international legislative body. However, some resolutions of the General Assembly can be very significant as it can express the view of the world community on different issues. The Universal Declaration of Human Rights (“UDHR”) emerged as a United Nations General Assembly resolution.[6] It led to the adoption of international treaties in the form of the two international covenants that created legally binding treaties. UNDRIP has not had similar effect (at least as yet), but it arguably has significance in other ways as an important normative instrument expressing an agreed view amongst those affected by it, both states and Indigenous peoples.[7]
In 2007, Canada voted against UNDRIP. However, it offered subsequent endorsements in 2010 and in 2016.[8] We could argue about the different qualifications on those two endorsements and how different they actually were — the significance of the 2016 endorsement may sometimes be overstated — but Canada’s subsequent endorsement is in any event of significance.
Given that UNDRIP is not a treaty and not legislation, one could ask how it has legal effects in Canada. There are several ways in which it could conceivably do so. In terms of direct legal effects, parts may express norms of customary international law that may then be brought into Canadian law, parts may help to develop customary law that is still crystallizing, and/or UNDRIP may help to identify how international treaties are interpreted in the specific circumstances of Indigenous peoples.[9] It could have these sorts of direct legal effects and/or it could simply affect states and encourage them on paths towards domestic implementation of UNDRIP-style norms. The latter aspect has perhaps become the most significant dimension in Canada in so far as UNDRIP has encouraged the adoption of implementing legislation federally as well as in one province and one territory.
III. UNDRIP-RELATED LEGISLATION
Canada and its subnational units have taken several legislative steps regarding UNDRIP since it was endorsed by the federal government in 2016. Despite some efforts at the federal level in a private member’s bill introduced over a number of years by former NDP Member of Parliament Romeo Saganash,[10] the province of British Columbia was the first mover on the legislative front. In 2019, British Columbia adopted the British Columbia Declaration on the Rights of Indigenous Peoples Act (“BCDRIPA”).[11]
Subsequently, an amendment was made to section 8.1(3) of British Columbia’s Interpretation Act,[12] stating “Every Act and regulation must be construed as being consistent with the Declaration.” The amendment, while adopted after BCDRIPA, has received surprisingly limited attention. One would expect Indigenous parties — or even non-Indigenous parties, since the law is about interpretation generally, and some might prefer different interpretations than presently exist — might have taken up the amendment and argued for different interpretations of British Columbia legislation and regulatory provisions. However, at this time, the amendment has only been cited four times and not given an overly thorough treatment.[13] The most comprehensive judicial guidance comes from the Gitxaala decision, where Ross J. clarifies that s. 8.1, which anchors s. 8.1(3) “acts as an interpretive aid during the entirety of the interpretive process, and not a mere ‘confirmatory’ role at the end.”[14] Understood this way, s.8.1(3) requires BC enactments to be interpreted in a manner consistent with UNDRIP at each step of the statutory interpretation process but with little detail developed in the courts on what that might ultimately mean.
The next legislative move came in 2021, following the federal government’s adoption of the United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDRIPA”).[15] The federal statute was adopted as government legislation. More recently, the Legislative Assembly of the Northwest Territories adopted the United Nations Declaration on the Rights of Indigenous Peoples Implementation Act,[16] which has its own approaches warranting separate attention.
For purposes of this article, it is most important to focus on the federal UNDRIPA and British Columbia’s BCDRIPA. The operative provisions found in each statute are closely analogous in several respects. These are: (1) a commitment to seek to harmonize the laws of the jurisdiction with UNDRIP; and (2) a commitment to ongoing action plans to pursue the objects of the UNDRIP.[17] The operative provisions do not extend beyond these two fundamental commitments, both of which are significant but are to take place over a period of time.
At the time BCDRIPA was adopted, British Columbia Premier John Horgan spoke about it being “the start of a process”.[18] As matters moved forward with the federal UNDRIPA, federal Minister of Justice David Lametti said, “Implementing the United Nations Declaration on the Rights of Indigenous Peoples is generational work.”[19] These and similar statements have made clear the nature of both statutes as launching processes and further detailed work. In light of the statutory commitments at the federal level and in British Columbia, there is extensive work to do with the various detailed provisions of UNDRIP that cut across all areas of law. With these two statutes, those working in any area of law need to be thinking about UNDRIP, not because of any prospect of taking it into court immediately, but because there will be ongoing legislative and policy reforms underway that affect every area of practice.
The purposes of the two statutes, those sections which normally shape the interpretation, the section that specifies what the purpose of the statute is, in both the BCDRIPA and the UNDRIPA, do not have the operative provision that the federal private member’s bill C-262 was going to have, which was an operative provision stating that UNDRIP “is hereby affirmed as a universal international human rights instrument with application in Canadian law.”[20] That language does not exist in other Canadian statutes and could have had highly unpredictable effects.[21] In the versions actually adopted, that language ended up not being part of the operative provisions in the statutes but in purpose clauses that may simply help to shape the interpretation of the statutes.
IV. ATTEMPTED INVOCATIONS OF THE UNDRIP-RELATED LEGISLATION IN CANADIAN COURTROOMS
While both the federal UNDRIPA and the provincial BCDRIPA were enacted on the basis that they set the stage for gradual change and were not to be invoked immediately into courtrooms, the attempted invocation of these statutes into court is precisely what has happened — and quickly.
In 2021, there were attempts by two intervenor parties to invoke BCDRIPA in the Supreme Court of Canada in R v Desautel,[22] with the attempted invocations being put to argue for tangible results. One intervener, the Lummi Nation, advanced the argument that “[British Columbia’s] DRIPA explicitly requires that all provincial laws are consistent with UNDRIP. As a result, UNDRIP is no longer a non-binding international instrument but has the status and force of domestic legislation. As such, it is the text of UNDRIP that is a primary source of meaning or interpretation.”[23] Another intervener, the Nuchatlaht First Nation, took the position that “… a Crown pleading in a s.35 rights case is a government ‘measure’ within the meaning of the Act. The Appellant is therefore statute-barred from advancing any argument in this court which would be inconsistent with UNDRIP.”[24] While it is laudable that government lawyers act in a manner consistent with the overall obligations and policy of the government, a specific rule statute-barring particular lines of advocacy would be highly constraining of legal discussion and undermine the ability of the courts to receive the full range of submissions that might bear on a matter. The Court ultimately did not reference these interventions in its decision, leaving them as what we would consider implicitly rejected attempts to shift the nature of the statute.[25]
These attempts were not an isolated incident, and there were intervenor efforts in a series of cases decided in 2024 to get the Supreme Court of Canada to ascribe more immediate substantive significance to UNDRIPA. For example, in the Indigenous Child Welfare case,[26] the Union of British Columbia Indian Chiefs (“UBCIC”) argued that even though the statute did not make UNDRIP binding per se, it was meant to give it significant weight in Canadian law.[27] In Dickson v Vuntut Gwitchin First Nation,[28] the “Pan-Canadian Forum on Indigenous Rights and the Constitution” sought to develop an extended principled approach to using UNDRIPA in judicially altering Canadian law.[29] In Shot Both Sides,[30] the intervenor Innu Takuaikan Uashat Mak Mani-Utenam argued that UNDRIPA had changed the Canadian legal landscape and implied substantive legal effect to UNDRIP.[31] In Restoule,[32] the Assembly of First Nations (“AFN”) argued for giving weight to UNDRIPA’s preamble and argued for a province to be under a presumed obligation to conform to Canada’s federally adopted commitments on UNDRIP.[33] Obviously, some of the submissions go beyond the scope of legitimate approaches to statutory interpretation and violate principles of federalism, but those realities have not stopped them from being made. Moreover, even while no judgment has specifically mentioned any of these submissions, the gradual accumulation of such submissions may have influenced the Supreme Court of Canada into some statements ascribing legal significance to UNDRIPA, albeit still relatively ambiguous statements at the present time, the matter to which we now turn.
V. SUPREME COURT OF CANADA CITATIONS TO UNDRIP
The Supreme Court of Canada was resistant to citing UNDRIP for many years. Aside from a surprising earlier citation to the 1994 Draft Declaration in Mitchell v MNR,[34] the Court for a long time said nothing about UNDRIP, despite numerous opportunities and, indeed, invitations to do so. Various cases saw intervenor groups attempt to argue that UNDRIP should influence how the case was decided. For example, in Tsilhqot’in Nation v British Columbia, there were submissions on how the UNDRIP provisions on land rights should help to shape Canada’s law of Aboriginal title, but these were ignored by the Court. In Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations),[35] a highly critiqued case involving religious freedoms, several intervenors argued for the significance of UNDRIP as a source to be considered. Notably, in that case, the Court opted to engage with other international human rights law instruments on religious freedom but without reference to UNDRIP, awkwardly showing a direct distinction between different international soft law instruments to the disadvantage of Indigenous peoples.
In Mikisew Cree First Nation v Canada (Governor General in Council),[36] when considering whether the duty to consult applies to legislative action, the Supreme Court of Canada’s decision did not feature references to UNDRIP. This was the case even in the context of an UNDRIP article that could be seen as directly on point, with article 19 explicitly requiring consultation and cooperation prior to the adoption of legislative or administrative measures that affect Indigenous peoples.[37] Some law professors wrote critically of the decision and argued that the Court was wrong not to recognize UNDRIP.[38] However, given that UNDRIP was not mentioned in oral argument and barely mentioned in factums — with one factum having a very brief mention but citing to the wrong article of UNDRIP[39] — it is frankly difficult to see the case as one where the Court ought on its own initiative to have engaged in an extensive discussion of UNDRIP. By this point, advocates had practically abandoned the idea of putting UNDRIP before the Court.
In that sense, the federal UNDRIPA arguably led to new initiatives to argue UNDRIP, and UNDRIPA appears to have encouraged the Court to reference both the legislation and UNDRIP itself. In Reference re an Act respecting First Nations, Inuit, and Metis children, youth and families,[40] the Court says that “the Declaration has been incorporated into the country’s positive law by the [UNDRIPA], s.4(a).”[41] In doing so, the Court does not outright draw anything from UNDRIP but rather reads the legislation as part of implementation and mentions that it has been incorporated into Canada’s positive law. However, that brief, factual statement that could be read as simply stating that UNDRIP had been cited in a statute lent itself to further-extended readings that now make UNDRIP much more significant within the Court’s jurisprudence.
In Dickson v Vuntut Gwitchin First Nation,[42] a case concerning the application of the Canadian Charter of Rights and Freedoms to Indigenous governments, the majority notes the “consonance” of its positions with UNDRIP.[43] The idea of looking for “consonance” now attributes a form of persuasive authority to UNDRIP, marking a significant step. The separate opinion of Martin and O’Bonsawin JJ goes even further, appearing to take UNDRIP and UNDRIPA as authority for recognizing a right to self-government.[44] The brief paragraph suggests that self-government is a way of preserving the collective and individual rights of Indigenous peoples. While Martin and O’Bonswain JJ astutely highlight that both collective and individual rights are contained in UNDRIP, there is little reasoning from that generality to the very specific conclusion that self-government must now be recognized in Canadian constitutional law in a general form (contrary to the Court’s own past precedent, it bears noting). Interestingly, while the effect of his separate opinion is actually most inclined to suggest that the sovereignty of Indigenous governments exempts them from application of the Charter, something arguably fitting well with UNDRIP’s emphasis on self-determination, Rowe J’s opinion reaches that conclusion without citing to UNDRIP.
These two decisions may simply be testing the waters in some respects. After many years of not offering any clarity on UNDRIP when asked to do so, the Supreme Court of Canada managed to discourage further argument based on UNDRIP. Then, when the new legislation seemed to open new possibilities, the Court seemed to respond to new advocacy on UNDRIP in these two cases, while ignoring the intervenor arguments on UNDRIP in other cases the same year. The Court has been unfortunately inconsistent and undertheorized in its approaches. Much work remains for the lower courts, although in now turning to three recent decisions, we will see that principles are also emerging there in an inconsistent manner.
VI. GITXAALA V BRITISH COLUMBIA (CHIEF GOLD COMMISSIONER)
In Gitxaala,[45] a judge of the British Columbia Supreme Court rejected the argument that courts could, in effect, invoke BCDRIPA to unilaterally strike down BC laws inconsistent with UNDRIP. In doing so, the Court clarified that the legislative intention of BCDRIPA does not have the effect of inviting judicial intervention. Rather, it contemplates ongoing cooperation between the government and Indigenous peoples to align existing laws and future legislation with the principles of UNDRIP.
In April 2023, two British Columbia First Nations argued that the Court could use BCDRIPA to essentially strike down provisions of the province’s mineral tenure system. The Mineral Tenure Act[46] (“MTA”) permits free miners to register a “mineral claim” on unclaimed Crown land and grants claim holders various exploration and search rights, not including the right to extract minerals for commercial purposes, which requires approvals governed by the Mines Act.[47] Consultation with potentially affected First Nations occurs at the later permitting stage, not prior to granting the mineral claim, which raised pertinent questions about the Crown’s duty to consult upon the operation of the MTA. Given the adverse physical impacts resulting from granting mineral rights, the Court held that British Columbia would need to fundamentally amend parts of the existing legislation to comply with the duty to consult doctrine.[48]
In terms of the effect of UNDRIP and BCDRIPA, the Court decided two issues:
1. Did DRIPA implement UNDRIP into the domestic law of British Columbia?[49]
2. Does s.3 of DRIPA raise justiciable questions of law? If so, what are they?[50]
The Court answered both questions in the negative, justifying its decision to use BCDRIPA as “an interpretive aid in addressing the proper reading of the MTA.”[51] First, finding that section 2 of BCDRIPA, the “purposes” provision, should be read as statements of purpose that can bear on interpretation and help give meaning to the substantive provisions found in the legislation.[52] Justice Ross relied on Hansard and legislative context to conclude DRIPA did not implement UNDRIP into BC law. BCDRIPA in effect calls for a process of cooperation and consultation to “prepare, and then carry out, an action plan to address the objectives of UNDRIP.”[53] Accordingly, on the question of justiciability, section 3 of BCDRIPA, which provides “the government must take all measures necessary to ensure consistency” should not be understood as a rights-creating provision that grants courts the authority to immediately invalidate legislation. Justice Ross recognized that courts possess both the institutional capacity and legitimacy to assess whether laws align with the rights outlined in UNDRIP.[54] However, section 3 does not impose a requirement of consistency, requiring courts to unilaterally adjudicate every instance where a law may be inconsistent with UNDRIP.[55] Instead, section 3 envisions an ongoing cooperative process involving Indigenous peoples in British Columbia, rather than giving the courts the unilateral right to strike down legislation immediately.
While some scholars who generally argue for the expansion of Indigenous rights have candidly admitted that the Court is right on the limited scope of BCDRIPA,[56] there has nonetheless been a sort of chorus of criticism of the Court for not making more of the legislation.[57] For example, British Columbia Human Rights Commissioner Kasari Govenderissued a press release with a title referring to being “dismayed” by the Court and rhetorically stating that “[t]he Declaration Act should not be merely symbolic — yet, today’s decision indicates that the UN Declaration on the Rights of Indigenous People still does not have the force of law in B.C.”.[58] This sort of harsh criticism of the Court for interpreting a statute according to its text and intentions illustrates the heated environment around these cases.
We take the view that the decision is consistent with the legislative history and the legislation. The legislative history indicates BCDRIPA was designed to foster a process over time, in which the government would work on the consistency of its legislation via an action plan reviewed every few years. British Columbia’s Minister of Indigenous Relations and Reconciliation, Scott Fraser, said during debate, “With the passage of this bill, this will still be an interpretive tool. Bill 41 brings no legal force and effect to the UN declaration. What our intention is and our commitment is, clearly and publicly, is to work with Indigenous peoples in this province to bring our laws — if they’re existing ones, future ones — into alignment over time with the UN declaration.”[59] The introduction of the bill received unanimous support based on assurances that it would not immediately strike down existing laws. Therefore, the legislative history supports interpreting BCDRIPA as an instrument for generational change through ongoing processes.
An appeal has been heard, with a decision expected this year. The appellate guidance is worth paying attention to, given the similarity of BCDRIPA to the federal UNDRIPA legislation.
VII. R V MONTOUR AND WHITE
In R v Montour and White,[60] Justice Sophie Bourque of the Québec Superior Court released the final judgment of her judicial career in a highly novel judgment on a broad range of Aboriginal and treaty rights questions. Using a novel legal test in place of the Van der Peet test, Bourque J held that the right to freely determine and pursue economic development is a generic right shared by all Indigenous peoples, as established by UNDRIP and protected by the traditional legal system of the Mohawks of Kahnawà:ke.[61] On a separate issue, the judgment also determined that the Crown unjustifiably infringed its obligation under the Covenant Chain, a treaty between the Haudenosaunee and the British as recognized by s. 35(1), by limiting the right to trade tobacco through the imposition of excise duties and criminal charges under the Excise Act.[62]
As a part of a lengthy 1696 paragraph decision, Bourque J. used the federal government’s adoption of UNDRIPA as evidence of a change in circumstances meeting the Bedford/Carter standard for lower courts to overrule SCC decisions, to hold in relation to UNDRIP that the Van der Peet test must be overturned, and to create a replacement test, all in the course of a fairly small number of paragraphs.[63] Unsurprisingly, the Attorney General of Québec has appealed the judgment. Nevertheless, there has been widespread comment against Québec seeking further judicial guidance on the groundbreaking ruling.[64]
Justice Bourque cites to the Bedford/Carter standard at some length in considering the possibility of using UNDRIPA to overturn past precedent.[65] In Canada (Attorney General) v Bedford[66]and Carter v Canada (Attorney General),[67] the Supreme Court defined the limits of vertical stare decisis on lower courts. The Court held that lower courts could depart from precedent set by higher courts in two circumstances: (1) where a new legal issue is raised and (2) where there is a change in circumstances that “fundamentally shifts the parameters of the debate.”[68] In what she framed as her application of this standard, Justice Bourque held that presumption of conformity with UNDRIP, the endorsement of UNDRIP “without qualification,”[69] and the adoption of the UNDRIPA constitute new legal issues not raised before the SCC in Van der Peet. Further, the entire social landscape underpinning the decision has changed.[70] As such, Bourque J held that exceptional circumstances exist to overturn Van der Peet and develop a new framework for s.35(1) claims.
Academics have extensively critiqued the Van der Peet “integral to a distinctive culture” test over the years. In addition to arguments about the potential culture-freezing effects of the test, some critiques include that subsequent applications of the Van der Peet test have seen the court have to make ad hoc adjustments to parts of the test to make it fit other s.35 contexts, leading to peculiar cultural limits on the scope of property rights and other rights.[71] The Court in Montour found Van der Peet inconsistent with UNDRIP because recognition of rights is limited to specific practices.[72] Accordingly, the Court posited that the current test is unable to capture modern rights with economic impacts, which hampers rights articulated in UNDRIP that depend on the right to develop an autonomous economy because “without independent financial leverage, most collective rights are just empty shells.”[73]
The replacement test created by Justice Bourque departs from the Van der Peet test, which is oriented towards customs, practices, and traditions, to a framework that contemplates whether the right under consideration “is a right protected by the traditional legal system of the Indigenous peoples claiming the right.”[74] Thus, the Court must determine which rights are protected by Indigenous legal systems as opposed to the frozen “integral idea.”
The reformed s.35(1) test devised in Montour imposes three burdens on applicants to determine whether a right invoked is protected by the traditional legal system of Indigenous peoples claiming the right:
1. It will require first to identify the collective right that an Applicant invokes;
2. Then, an Applicant will have to prove that such a right is protected by his or her traditional legal system; and
3. Finally, an Applicant will have to show that the litigious practice or activity in question is an exercise of that right.[75]
This represents a notable shift, as it may have the potential to influence the outcomes of various Aboriginal rights questions across the country (and, in the meantime, also potentially alters the duty to consult analysis in every consultation situation involving an asserted Aboriginal right, with the prima facie strength of the claim now to be analyzed under a different test). While this amendment could be viewed as a positive and constructive change, it also has the effect of creating an evidentiary barrier for some Indigenous communities, if they are then put in a position of having to prove “sufficient continuity” of a right within an Indigenous legal system rather than proven customs, practices, and traditions.[76] So, there could be unintended consequences, and the highly limited analysis of the alteration of the test within a very lengthy judgment does not show the sort of careful attention that would be appropriate on a change of this magnitude.
A final concern regarding UNDRIP pertains to a significant conclusion on constitutional interpretation. Justice Bourque concluded that UNDRIP “despite being a declaration of the General Assembly, should be given the same weight as a binding international instrument in the constitutional interpretation of s. 35(1).”[77] An argument could then be advanced that UNDRIP could appropriately change the interpretation of the constitution. In principle, if Nevsun Resources Ltd. v Araya,[78] is correct and will be applied, that might also mean parts of UNDRIP become part of Canadian common law outside of the statutory process. Nevertheless, there are some complexities concerning how the decision will work. The question remains: How does the adoption of a federal statute change the interpretation of the Constitution? On a principled level, the adoption of a federal statute cannot legitimately change the interpretation of the Constitution, or one has created an unprincipled new amending formula within the sole power of the federal government.
VIII. KEBAOWEK FIRST NATION V CANADIAN NUCLEAR LABORATORIES
On February 19, 2025, the Federal Court in Kebaowek First Nation v Canadian Nuclear Laboratories[79] purported to adopt the UNDRIP free, prior, and informed (“FPIC”) standard in lieu of the duty to consult, with this adoption being as a result of Canada’s implementation of UNDRIP into domestic law via UNDRIPA. On that basis, the Court found that the Canadian Nuclear Safety Commission’s consultation process for approving a license amendment for Canadian Nuclear Laboratories to construct a Near Surface Disposal Facility at Chalk River Laboratories was inadequate.[80] However, Blackhawk J. also interprets FPIC as mandating a process rather than an obligation to obtain consent.[81] The case is currently under appeal. Some may argue that of the three cases, this one stands out as the most remarkable. Thus, a few key elements require further attention.
First, it is worth noting the impact of the existing authorities. The chosen authorities are significant, particularly the citation to another lower court decision that is not definitive, and it itself is currently under appeal. Blackhawk J. begins by citing Reference re An Act respecting First Nations, Inuit and Métis children, youth and families,[82] along with Montour,[83] to stand for the idea that UNDRIP has been implemented into Canada’s domestic positive law and can be required to inform the interpretation of Canadian law.[84] UNDRIP is described as “an interpretive lens to be applied to determine if the Crown has fulfilled its obligations.”[85] Following this, it is asserted that the Supreme Court of Canada has indicated that the rights articulated in UNDRIP exist, suggesting that what has been legislated in UNDRIPA codifies pre-existing rights.[86]
Interestingly, Gixtaala, which considers the consistency of the provincial mineral tenure system with UNDRIP and BCDRIPA, is referenced only much later in the decision.[87] Here, Blackhawk J. briefly finds that the Gixtaala decision is unpersuasive and distinguishable from Kebaowek, noting that, unlike the former, the issue being contemplated is “not conformity of laws… Rather, the question is whether UNDRIP has been incorporated into Canadian law such that it may inform the interpretation of the duty to consult and accommodate.”[88] A more thorough treatment of the questions raised in Gixtaala would surely have been warranted, given that it considers highly parallel legislation that predates the federal legislation.
These points on sources highlight that ambiguous statements in the Supreme Court of Canada are apt to be read in unexpected ways. They also show that some judges may pick amongst other lower court decisions during this interim phase in which appellate guidance is lacking, thus amplifying the effects of decisions that may ultimately be overturned. This period of legal development gives rise to some significant uncertainties on what might happen in any given case affecting clients.
Second, the general statement in the case that the adoption of UNDRIP via UNDRIPA “…means more than a status quo application of the section 35 framework”[89] is significant. Once again, we observe a lower court taking the view that the adoption of a federal statute changes constitutional interpretation, again adopting that new constitutional amendment process that lets the federal government effect unilateral changes to the constitution that affect the provinces.
Third, operating on the basis that UNDRIP is to be used to interpret the Crown’s analysis of the duty to consult and accommodate, the Court takes an interesting approach of beginning by trying to identify a specific article of UNDRIP into which the case fits. The Court concludes that the proposed Near Surface Disposal Facility project clearly falls within the scope of Article 29(2) of UNDRIP, thereby triggering the UNDRIP FPIC standard. Article 29(2) states that “no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.”[90] As a result, based on this rather distinctive methodology, Blackhawk J suggests that an FPIC standard applies in reshaping the duty to consult.
However, Justice Blackhawk then interprets FPIC as “a right to a robust process…not a veto or a right to a particular outcome.”[91] This interpretation actually corresponds with the mainstream view in international law scholarship, which contends that FPIC in general mandates a right to a process aimed at consent but not necessarily requiring the obtaining of consent on every decision.[92] A divergent stream of thought in international law scholarship contends that FPIC requires a consultation process to obtain consent, sometimes portrayed as a “veto,” which implies an absolute power to override all other considerations.[93]
However, here is where the methodology of fitting matters into article 29 becomes peculiar. As stated, on FPIC generally, Blackhawk J’s approach of saying that FPIC processes do not always require obtaining consent is within mainstream views. However, those holding this mainstream often arrive at it by considering the text of UNDRIP and the distinction between articles that textually require consent and articles that do not textually require consent but simply consultation and cooperation “in order to obtain” consent. Article 29(2) of UNDRIP, which governs the storage of nuclear waste, is one of the rare articles that contains language stating that obtaining consent is mandatory. The only other article with such language is Article 10, which contains a mandatory consent requirement for the relocation of a population. Thus, to say that the methodology of a right to a process is to fit in Article 29(2) is a highly peculiar feature of the decision, raising some broader questions about the cohesiveness of the judgment’s methodology.
The judgment also contains an interesting citation to Article 46(2), the limitations clause of the UNDRIP, which states that UNDRIP rights are not absolute and that States may infringe on UNDRIP rights in limited circumstances.[94] This article is seldom cited, as many scholars and judges alike proceed as if UNDRIP contained no limitations clause, thereby interpreting UNDRIP solely as a rights-affirming instrument in every circumstance. Thus, the Court’s reference is notable, as it suggests possible limits on the effects of the articles of UNDRIP that the Court chose to engage with and suggests that UNDRIP can be interpreted in balanced ways. If courts are going to follow this methodology, using UNDRIP as an interpretive framework, proper engagement with Article 46(2) to interpret the substantive provisions within the Declaration and how they interact with Canadian law is imperative for a more balanced approach.
Finally, it is worth noting the Court’s extensive use of decisions from the Inter-American Court of Human Rights (“IACHR”) to assist with the interpretation of FPIC.[95] The IACHR is the judicial body, based in San José, Costa Rica, established to interpret and apply the American Convention on Human Rights (“ACHR”),[96] a regional human rights treaty in the Americas. Two key aspects should be considered. First, the IACHR decisions referenced were not cited by the parties or raised by the parties for comment. Thus, the Court appears to have engaged with IACHR jurisprudence without first seeking submissions from the parties regarding what these cases should mean in the context of the case before the court. While this practice is not unprecedented, it does not seem like the ideal process in an adversarial system of advocacy. Parties should have a chance to consider the legal arguments included in cases and not be rendered unable to challenge influential arguments advanced by the Court on its own initiative. Second, the IACHR decisions are arguably not applicable in the ways presented by Blackhawk J. In our view, significant methodological issues exist with the Court’s engagement with international law materials. For the most part, the IACHR cases in question interpret the ACHR., As noted, that is a regional human rights treaty in the Americas. It is a treaty ratified by many member states of the Organization of American States (“OAS”) — but not by Canada, thus raising profound questions about the appropriateness of relying upon these cases in interpreting Canadian obligations.[97] In referencing these cases, Blackhawk J. is arguably doing something other than interpreting FPIC in UNDRIP and almost certainly doing something other than interpreting international law materials applying to Canada in the ordinary ways.
Kebaowek represents an ambitious attempt to implement UNDRIP into Canadian law via UNDRIPA, but it is fraught with methodological incoherence. The Court based its analysis on an unsettled legal question as to whether UNDRIPA, a federal statute, alters constitutional interpretation and proceeded on this basis to interpret FPIC as a right to process. This was arguably correct in relation to FPIC in general terms but did not fit well with the language in Article 29(2), the provision which the Court claimed triggered the FPIC standard. Moreover, the Court’s reliance on arguably inapplicable jurisprudence from the IACHR and unsettled legal questions under appeal from Montour raises additional concerns. The decision is under appeal, and those seeking to rely upon it in the meantime should be highly cautious in doing so. However, those who could be affected by its citation by other courts again face significant risks during this interim period.
IX. PRACTICAL IMPLICATIONS AND CONCLUSIONS
We are currently experiencing a period of significant instability regarding the impact of UNDRIP and UNDRIPA legislation on various issues. As a result, we observe a phenomenon in which courts cite each other faster than matters are being resolved at the appellate level, with cases of uncertain authority being cited by other cases of uncertain authority in rendering major decisions. Ultimately, we need a resolution from an appellate court, and ultimately something principled and rigorous from the Supreme Court of Canada.
We also see a phenomenon in which UNDRIP legislation may be invoked in various ways that were assumed against in agreements to pass legislation. Problematic interpretations that deviate from the original legislative intention upon adoption risk rendering positively viewed aspects of the legislation politically contentious and may ultimately lead to the revocation of such legislation in the future. When BCDRIPA was enacted in 2019, it had unanimous support in the BC legislature. Five years later, it was saved from a promised revocation by the new main opposition party in BC only by a knife-edge election result. If legislation is interpreted in ways going beyond the assurances offered at the time of its adoption, we are likely to see an unfortunate heightening of politicization and less sustainable support for Indigenous rights.
For those working in the energy law space, there is also quite possibly now a need to consider UNDRIP-related uncertainties in nearly every case. This even includes considering how to deal with arguments that the other side does not raise but that the judge may rely upon or develop, potentially incorrectly, on the judge’s own initiative. An additional need has arisen for natural resources-related organizations to consider engaging more rigorously on these matters to ensure careful, balanced consideration of these issues in commentary and scholarship. Canadians can be simultaneously proud of their efforts to respond to past wrongs against Indigenous peoples and to advance Indigenous rights while also working to do so in ways that follow proper process, that do not generate economically harmful uncertainties, and that bring people together rather than driving them apart.
* Dwight Newman, Professor of Law & Tier 1 Canada Research Chair in Rights, Communities, and Constitutional Law, University of Saskatchewan. I presented an earlier form of parts of this article at the Canadian Bar Association (CBA) Alberta Natural Resources South Section in Calgary on 14 May 2025. I am grateful for organization of that event by Dana Poscente and for extended discussion on related themes with Bernie Roth. This research was undertaken, in part, thanks to funding from the Canada Research Chairs Program.
Jenna Renwick, JD candidate, University of Saskatchewan.
1 [United Nations] Declaration on the Rights of Indigenous Peoples (UNDRIP), GA Res 61/295, UN Doc A/RES/47/1 (2007).
2 Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680.
3 R v Montour and White, 2023 QCCS 4154.
4 Kebaowek First Nation v Canadian Nuclear Laboratories Inc, 2025 FC 319.
5 Draft United Nations Declaration on the Rights of Indigenous Peoples, UN Doc E/CN.4/Sub.2/RES/1994/45 (26 August 1994).
6 UNDRIP, supra note 1.
7 See Dwight Newman, “Interpreting FPIC in UNDRIP” (2019) 27 International Journal on Minority and Group Rights 233 at 234.
8 See Government of Canada, “Canada Endorses the United Nations Declaration on the Rights of Indigenous Peoples” News Release, (12 November 2010), online: <canada.ca/en/news/archive/2010/11/canada-endorses-united-nations-declaration-rights-indigenous-peoples.html> ; See Government of Canada, “Canada Becomes a Full Supporter of the United Nations Declaration on the Rights of Indigenous Peoples” News Release, (10 May 2016), online: <canada.ca/en/indigenous-northern-affairs/news/2016/05/canada-becomes-a-full-supporter-of-the-united-nations-declaration-on-the-rights-of-indigenous-peoples.html>.
9 If we might have nuanced differences from him elsewhere, here we align well with Gib van Ert, Using International Law in Canadian Courts, 3rd ed (Toronto: Irwin Law, 2024) at 626–28. These possible routes to a legal status for UNDRIP are clear enough and it is also clear that some of them require rigorous proof of, for instance, state practice and opinio juris.
10 Bill C-262 (“United Nations Declaration on the Rights of Indigenous Peoples Act”), 2nd sess, 42nd parliament, 2018 (failed to pass third reading in the Senate in advance of 2019 election).
11 British Columbia Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 [BCDRIPA].
12 Interpretation Act, RSBC 1996, c 238, s.81(c).
13 Gixtaala, supra note 2 at paras 416–17, 469; Skii km Lax Ha v British Columbia (Chief Executive Assessment Officer), 2024 BCSC 1687 at paras 90–92; Kits Point Residents Association v Vancouver (City), 2023 BCSC 1706 at para 170; L.L. v A.I., 2023 BCSC 1503 at para 36.
14 Gitxaala, ibid at para 413.
15 United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 [UNDRIPA].
16 United Nations Declaration on the Rights of Indigenous Peoples Implementation Act, SNWT 2023 c 36 [NWT DRIPA].
17 These key commitments from the legislation are found in UNDRIPA, supra note 14, s 5 (statutory alignment) and s. 6 (action plan); BCDRIPA, supra note 10, ss. 3 (statutory alignment) and 4 (action plan). Notably, BCDRIPA also has extra provisions on consent agreements with Indigenous governments (ss 6 and 7), but those need to be the subject of more extended discussion elsewhere.
18 Andrew Macleod, “Celebrations as BC Government Moves to Adopt UN Declaration on Indigenous Rights”, The Tyee (24 October 2019).
19 See Government of Canada, “Implementing United Nations Declaration on the Rights of Indigenous Peoples Act: Next phase of co-development” News Release, (20 March 2023) online: <canada.ca/en/department-justice/news/2023/03/implementing-united-nations-declaration-on-the-rights-of-indigenous-peoples-act-next-phase-of-co-development.html>.
20 Supreme Court of Canada File No 40153 (R v Shot Both Sides), Factum of Intervener Innu Takuaikan Uashat Mak Mani-Utenam, at paras 41–43.
21 One of us (Dwight Newman) made submissions to this effect in the parliamentary committee hearings on the legislation, suggesting that it is proper to consider considerations on statutory drafting when enacting a statute. Such submissions were surprisingly rare in a process that arguably featured many good intentions but could have used additional rigour all the way along. Even in the context of well-intentioned legislation intended to advance rights, it is important to consider statutory drafting considerations, unintended effects, and other similar considerations, and the implicit pressures on people not to raise such issues in good faith for fear of being seen as opposed to the legislative objectives were highly unfortunate and something of a discredit to a process that should have always been aimed at bringing everyone together in developing good, sustainable paths forward on Indigenous rights.
22 R v Desautel, 2021 SCC 17 [Desautel].
23 R v Desautel, 2021 SCC 17 (Factum of the Intervener Lummi Nation at para 32).
24 R v Desautel, 2021 SCC 17 (Factum of the Intervener Nuchatlaht First Nation at para 37).
25 We do not say that the statutes could never be invoked in seeking a judicial remedy. Notably, in the event of a governmental failure to meet the two key commitments in the statute, such as if a government made no efforts at statutory alignment or failed to prepare an action plan, there would be ways of seeking a remedy for such failures to comply with a statutory obligation. But the operative commitments in the statute must be the basis for any judicial action, rather than any excessively generalized reading of the statute as giving force to UNDRIP.
26 Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (“Indigenous Child Welfare”), 2024 SCC 5.
27 Supreme Court of Canada File No 40061 (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families), Factum of intervenor Union of British Columbia Indian Chiefs (UBCIC), paras 24–25.
28 Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10.
29 Supreme Court of Canada File No 39856 (Dickson v Vuntut Gwitchin First Nation), Factum of intervenor Pan-Canadian Forum on Indigenous Rights and the Constitution.
30 Shot Both Sides v Canada, 2024 SCC 12.
31 Supreme Court of Canada File No 40153 (Shot Both Sides v Canada), Factum of intervenor Innu Takuaikan Uashat Mak Mani-Utenam, paras 41–43.
32 Ontario (Attorney General) v Restoule, 2024 SCC 27.
33 Supreme Court of Canada File No 40024 (Ontario (Attorney General) v Restoule), Factum of intervenor Assembly of First Nations (AFN), paras 28, 33.
34 Mitchell v MNR, 2001 SCC 33 at para 81 [Mitchell].
35 Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 [Ktunaxa].
36 Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 [Mikisew].
37 UNDRIP, supra note 1, art 19.
38 See eg Sarah Morales, “Supreme Court of Canada Should Have Recognized UNDRIP in Mikisew Cree Nation v Canada”, Canadian Lawyer (29 October 2018) (criticizing the Court inter alia for “fail[ing] to consider any legal principles recognized by the United Nations Declaration on the Rights of Indigenous Peoples”).
39 See Supreme Court of Canada File No 37441 (Mikisew Cree v Canada (Governor General in Council)), Factum of Intervenor Assembly of First Nations (AFN), para 21 (incorrectly citing art. 32 for a point on which the cite should have been to art. 19).
40 Reference re an Act respecting First Nations, Inuit, and Metis children, youth and families, 2025 SCC 5 [Indigenous Child Welfare Reference].
41 Ibid at para 4.
42 Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10.
43 Ibid at paras 47, 110.
44 Ibid at para 283.
45 Gitxaala, supra note 2.
46 Mineral Tenure Act, RSBC 1996, c 292, ss.6.3, 7–14.
47 Mines Act, RSBC 1996, c 293.
48 Gixtaala, supra note 2 at paras 396–98.
49 Ibid at para 442.
50 Ibid.
51 Ibid at para 14.
52 Ibid at para 461.
53 Ibid at paras 466–67.
54 Ibid at para 485.
55 Ibid at para 488.
56 See e.g. Nigel Bankes, “The Legal Status of UNDRIP in British Columbia: Gitxaala v British Columbia (Chief Gold Commissioner)” (5 October 2023), online (blog): ABlawg, <ablawg.ca/2023/10/05/the-legal-status-of-undrip-in-british-columbia-gitxaala-v-british-columbia-chief-gold-commissioner>.
57 Consider elements of David Wright, “British Columbia Free Entry Mining System Triggers Duty to Consult and Must Change: Gitxaala v British Columbia (Chief Gold Commissioner)”(18 October 2023) , online (blog): ABlawg, <ablawg.ca/2023/10/18/british-columbia-free-entry-mining-system-triggers-duty-to-consult-and-must-change-gitxaala-v-british-columbia-chief-gold-commissioner>; Jeffrey Warnock, “So, I Guess We’re Going with Vacuous Political Bromide: A Commentary on Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680”, (2024) 57:3 UBC Law Review;
58 See British Columbia’s Office of the Human Rights Commissioner, “B.C. Human Rights Commissioner dismayed as court decision undermines impact of Declaration on the Rights of Indigenous Peoples Act” (26 September 2023), online: <bchumanrights.ca/news-and-events/news/b-c-human-rights-commissioner-dismayed-as-court-decision-undermines-impact-of-declaration-on-the-rights-of-indigenous-peoples-act>.
59 British Columbia, Official Reports of Debates of the Legislative Assembly (Hansard), 41st Parl, 4th Sess, No 292 (19 November 2019) at 10569 (Hon. S. Fraser).
60 Montour, supra note 3.
61 Ibid at para 1375.
62 Excise Act, SC 2002, c 22, s 42(1).
63 Montour, supra note 3 at paras 1171–1204 present the main reasoning on the point (there could be arguments for including more paragraphs, but one could also argue for including fewer), with this reasoning on such a crucial issue thus making up about two percent of the judgment.
64 Laura Koerner-Yeo & Brendan Schatti, “Update Part II: Attorney General of Quebec Appeals trailblazing R v Montour and White decision”, JFK Law (19 March 2024), online: <jfklaw.ca/update-attorney-general-of-quebec-appeals-quebec-superior-courts-trailblazing-r-v-montour-and-white-decision-part-ii/#_ftn4>; Ka’nhehsí:io Deer, “Quebec appeals ‘landmark’ decision recognizing Kanien’kehá:ka treaty right to trade tobacco”, CBC News (11 January 2024), online: <cbc.ca/news/indigenous/quebec-appeals-treaty-right-tobacco-trade-1.7080655>.
65 Montour, supra note 3 at paras 1145ff. At paras 1154–56, Bourque J also references the notes of caution in the application of the Bedford/Carter standard indicated by the Supreme Court of Canada in R v Comeau, 2018 SCC 15, but her view was that the case at bar surmounted even a cautious application of the Bedford/Carter standard.
66 Carter v Canada (Attorney General), 2015 SCC 5 [Carter].
67 Ibid at para 44.
68 Ibid.
69 Montour, supra note 3 at para 1204.
70 Ibid at para 1205.
71 Dwight Newman, “Day Six: Dwight Newman” (30 December 2018), online (blog): <doubleaspect.blog/2018/12/30/day-six-dwight-newman>.
72 Montour, supra note 3 at para 1295.
73 Ibid.
74 Ibid at 18.
75 Ibid at para 1297.
76 Ibid at para 1327.
77 Ibid at para 1201.
78 Nevsun Resources Ltd. v Araya, 2020 SCC 5.
79 Kebaowek, supra note 4.
80 Ibid at para 183.
81 Ibid at para 131.
82 Montour, supra note 3 at para 1287.
83 Kebaowek, supra note 4 at para 76.
84 Ibid at para 76.
85 Ibid.
86 Ibid.
87 Ibid at paras 101–02.
88 Ibid at para 102.
89 Ibid at para 128.
90 UNDRIP, supra note 1, art. 29.
91 Kebaowek, supra note 4 at para 130.
92 See Newman, “Interpreting FPIC in UNDRIP”, supra note 7; Mauro Barelli, “Free, Prior and Informed Consent in the United Nations Declaration on the Rights of Indigenous Peoples – Articles 10, 19, 29(2) and 32(2)”, in Jessie Hohmann & Marc Weller, eds, The UN Declaration on the Rights of Indigenous Peoples: A Commentary (Oxford: Oxford University Press, 2018).
93 See discussion of this view in Newman, “Interpreting FPIC in UNDRIP”, ibid at 238.
94 Kebaowek, supra note 32 at para 131.
95 Ibid at paras 107–11.
96 American Convention on Human Rights, San José, Costa Rica, 22 November 1969, 1144 UNTS 123 (entered into force 27 August 1979) [American Convention].
97 The cases also involve some reference to ILO Convention 169 (Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No 169), 72 ILO Official Bulletin 59, entered into force Sept. 5, 1991), which has similarly not been ratified by Canada.