In a decision released earlier today in Gitxaala v British Columbia (Chief Gold Commissioner), a majority judgment in the British Columbia Court of Appeal meaningfully extended courts’ role in applying the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to all British Columbia law.
The case concerned some of British Columbia’s legislation on staking mineral claims, which the trial judge in the case had already indicated needed to change in order to fit with Canada’s legal doctrine on the duty to consult under section 35 of Canada’s Constitution Act. However, the trial judge concluded that courts could not use UNDRIP to strike down statutes, and that led the First Nation claimants in the case to appeal, supported by other groups including province-wide Indigenous groups and the BC Human Rights Commission.
In a recent article in Energy Regulation Quarterly, a co-author and I showed that the trial judge’s view was quite consistent with what had been said at the time that BC’s UNDRIP statute was proposed and adopted with a strong vote across party lines in the BC legislature.
The BC Court of Appeal majority now says that BC’s UNDRIP statute goes further . The majority holds that whether a BC statute is consistent with UNDRIP is justiciable (paras 175-82) - that means that it’s something for courts to decide.
The minority opinion of Riley J highlights that the legislation was put forward as setting up the executive and legislature to take steps to make BC laws consistent with UNDRIP - not as something putting that task on judges (section around para 245). In my view, that opinion is right on this point. If it stands as law, the decision would dramatically expand the role of the courts into striking down BC laws for inconsistency with UNDRIP in a way that, frankly, is probably not constructive for reconciliation at the present time.
A second key issue in the case is somewhat more technical and also sees the majority saying something more to be expected. They interpret how the new section of BC’s Interpretation Act asking courts to interpret BC laws consistently with UNDRIP cashes out. On this, there is a nuanced difference between the majority (which calls for an approach oriented to interpreting BC laws consistently with UNDRIP wherever possible - cf para 125 setting out a “statutory rebuttable presumption of consistency between British Columbia enactmnents and UNDRIP”) and the minority (which reads that aim together with traditional elements of statutory interpretation - see paras 217ff).
On this Interpretation Act issue, there are important technical questions here, and there will be reasons to continue to discuss and discourse about which approach is correct. But none of this on this Interpretation Act issue is as surprising. BC’s legislature put in place an expectation on judges that they interpret BC statutes consistently with UNDRIP, and now BC judges are saying how they will interpret BC statutes consistently with UNDRIP.
Legislatures should not pass statutory rules if they do not want those statutory rules applied. That’s a pretty basic principle. But it’s often forgotten in an area of law where symbolism and virtue signalling risks taking priority over careful discussion of the effects of new rules and laws being adopted.
British Columbia will now need to decide what to do after this decision. It could let the courts take on a central role in saying how BC statutes should be amended to respond to UNDRIP. It could appeal. It could amend or repeal statutory provisions having effects that it does not want
Even while many of those often allied with him were in the midst of celebrating the decision, Premier Eby today already started speaking of possibly amending BC’s UNDRIP statute to respond to apparent confusion by the Court about its purposes. It will be interesting to see what other political actors propose.
With respect, while I do believe the judges were trying to interpret the law as they saw it to the best of their abilities, I see the Court of Appeal decision not as having solved any problems but as having posed new questions to be solved and political questions to be debated.
Reconciliation aspirations are in a highly delicate spot in BC today. I hope that constructive political actors can find ways forward that do not further divide British Columbians but that can bring British Columbians together.