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There has been a great deal of discussion lately regarding the Cowichan Tribes1 and Gitxaala2 court cases. Cowichan Tribes found Aboriginal title to exist over private land in Richmond, relying at least in part of the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”). Gitxaala found a BC law (the Mineral Tenure Act) legally unacceptable on the basis it was contrary to DRIPA.
But there is another significant legal issue lurking here that does not appear to have received much attention to date. It relates to the question of whether or to what degree three recently signed Final Agreements (treaties) with the Kitselas,3 Kitsumkalum4 and K’omoks5 First Nations (the “New Treaty Agreements”) perpetuate the same risks the BC government has expressed concern about in the Cowichan Tribes and Gitxaala court cases. The answer to this question may ultimately depend, in part, on whether the BC government suspends parts of DRIPA as it has said it plans to,6 but it appears the government is planning to introduce treaty implementation legislation for new treaties with additional First Nations in the Legislature imminently.7
Issue #1 – the Treaty Agreements rely on UNDRIP and contain provisions similar to those that the Court relied on in Gitxaala and Cowichan Tribes
The Preambles to each of the New Treaty Agreements state that the parties enter into the respective agreements with the common objective of advancing the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). The substantive provisions of the New Treaty Agreements provide that UNDRIP is an “authoritative source” for interpretation and will inform the parties in their implementation of the respective New Treaty Agreements.
Both the Cowichan Tribes and Gitxaala decisions relied on UNDRIP and related BC legislation: in Cowichan Tribes in support of the conclusion that the provisions of the Land Title Act that provide “indefeasible” title to private landowners do not apply to protect against Aboriginal title claims over private land,8 and in Gitxaala as an “interpretive aid” in addressing the “proper reading” of the Mineral Tenure Act in support of the conclusion that the Province’s online mineral claim system used to grant mineral claims under that Act is inconsistent with UNDRIP.9
UNDRIP appears to have influenced the language used in the New Treaty Agreements. As a result—and in contrast to other modern era treaties—the New Treaty Agreements do not appear to provide the certainty found in prior modern era treaty agreements.
Issue #2 – the recent treaties use a new “certainty” model that does not protect private property owners conclusively and forever against aboriginal title claims.
Each of the New Treaty Agreements provides that the intent is to “achieve flexibility, clarity, and predictability” in providing for the implementation of Aboriginal rights recognized and affirmed by section 35 of the Constitution Act, 1982, including Aboriginal title, by setting out:
a) the respective First Nations’ “Exercisable Section 35 Rights,” their attributes, the geographic extent of those rights, and the limitations to those rights; and
b) the processes by which Aboriginal rights that are not, at this time, exercisable may become Exercisable Section 35 Rights.
Of the 13 modern day treaties passed into law in Canada since the Nisg̱a’a Final Agreement made effective on May 11, 2000, none have yet applied this new “certainty” model.10
Prior modern era treaties, for example the Tsawwassen First Nation Final Agreement made December 6, 2007,11 set out “exhaustive” Aboriginal rights and the limitations to those rights as modified by the treaty. In contrast, the New Treaty Agreements do not present this same finality, but rather provide processes that may allow for further exercisable rights to be asserted, including through binding arbitration. Private landowners, industrial users of public land, and private owners who use public land are not shielded from such claims.
While there has been some public engagement on the issue of this new treaty model, that all happened well before the Cowichan Tribes and Gitxaala decisions were rendered, and it does not appear that a great deal of attention was paid to the issue. Government reports of public feedback contain only the following minimal statements that do not in any way address the issues that have arisen from the Cowichan Tribes and Gitxaala cases:
Q: Reconcilation, rights and title – will there be extinguishment of rights, assurances against future claims?
A: Treaties do not extinguish or modify rights. They are living agreements that can evolve over time. Treaties create the foundation for renewed relationships between the Indigenous group, in this case K’ómoks, B.C. and Canada to build a stronger future.12
Q: How will the treaty affect access to private properties in Kitsumkalum treaty territory?
A: Access to private property is guaranteed under provisions set out in the treaty. Numbered provincial highways and major resource roads are excluded from the treaty land package, ensuring access for landowners. If a private property is accessed by a road that will become Treaty Lands, an easement will be provided by Kitselas or Kitsumkalum to ensure access.13
Issue #3 – The recent treaties raise a question whether the prior treaties will need to be re-opened on the basis that their “certainty” model is contrary to DRIPA
Article 26(1) of UNDRIP provides that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” No provision of UNDRIP states that such rights are subject to treaties or agreements that Indigenous peoples may make with the state that would limit or modify such rights or the exercise of them.
There is some potential a court could find the New Treaty Agreements and related implementing legislation contrary to DRIPA in this regard (using reasoning similar to that of the Court of Appeal in Gitxaala). But there is an even a greater chance a court could make such a finding in relation to the prior treaties that used the “modification of rights” model of certainty discussed above.14 This is especially true if the court were called upon to consider that question in face of other legislation implementing a different certainty model contained in the New Treaty Agreements.
These are complex questions that are subject to various contingencies and which may ultimately require litigation to address. But what is clear is that any suggestion BC will achieve certainty and avoid DRIPA-based concerns through greater use of treaties is an oversimplification and perhaps even illusory.
In the meanwhile, it is important that any business investing in any areas of BC where treaties exist or are pending consider seeking legal counsel specific to their circumstances, to ensure they understand the degree to which those treaties do (or do not) provide certainty now and for the future.
Footnotes
1. Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490.
2. Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680; Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430.
3. Kitselas Treaty (February 2025).
4. Kitsumkalum Treaty (July 2025).
5. Komoks Treaty (November 2024).
6. CBC News, BC NDP Pauses Amendments to DRIPA to Avoid Caucus Rift, Avoiding Confidence Vote.
7. Government House Leader Mike Farnworth announced on April 13 that some such implementing legislation, will be coming in the days ahead (see CBC News, BC NDP to Pause DRIPA Amendments, Will Not Be Confidence Motion: MLA Mike Farnworth), though the Nine Allied Tribes and Lax Kw’alaams Band expressed immediate concern (see Government of British Columbia Prepares to Undermine Reconciliation and Economic Certainty on North Coast of BC with Kitselas Treaty Legislation).
8. Cowichan Tribes at para. 2258.
9. Gitxaala at para. 14.
10. CIRNAC, the Modern Treaty Era.
11. Tsawwassen First Nation Final Agreement.
12. Komoks Treaty Engagement – What We Heard.
13. Kitselas Treaty and Kitsumkalum Treaty Engagement – What We Heard
14. Article 46(2) of UNDRIP contemplates legislation that may limit the “exercise” of UNDRIP rights in limited cases for purposes such as the “just and most compelling requirements of a democratic society.” It does not, however, contemplate modification of UNDRIP rights for such purposes.
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.
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