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On December 5, 2025, the BC Court of Appeal released its reasons for judgment in Gitxaała v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430. In a split decision, the majority allowed the appeals of Gitxaała Nation and Ehattesaht First Nation and issued a declaration that the Mineral Claims Regime, which is in the process of legislative reform, is inconsistent with article 32(2) of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Background
The appeals arose after the chambers judge decided not to issue declarations regarding UNDRIP in Gitxaała v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680. In that decision, the chambers judge found a duty to consult and granted the Province a period of 18 months to modernize the mineral tenure system to include consultation with Indigenous Nations. For more information on the chambers judge's decision, please refer to our bulletin on that case: Consultation and Mineral Claim Staking: The Gitxaała Case.
After the judgment, the provincial government issued orders related to mining activities in Gitxaała and Ehattesaht territory. These orders significantly narrowed the issues on appeal.
Implications
The decision in Gitxaała v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 clarifies judicial interpretation of the Declaration on the Rights of Indigenous Peoples Act. Although this legislation is BC-specific, there is analogous federal legislation, the United Nations Declaration on the Rights of Indigenous Peoples Act. The broader implications of this decision remain to be determined.
Our own Kevin O'Callaghan and Samuel Geisterfer represented an intervenor, the Association for Mineral Exploration – BC, in the appeal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
