I won’t normally be posting daily on here, but I am over the coming days looking to unpack a few things about the huge Aboriginal title decision in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490. I posted yesterday about the big implications of the decision for fee simple (privately owned) land. Today, I want to face a question some have been asking of whether BC policy on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) affected the decision. As many readers may know, British Columbia adopted legislation on UNDRIP in November 2019 (Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 (often called “BCDRIPA” to distinguish it from federal legislation or, now, legislation in the NWT along similar lines).
The judgment could give initial appearances that UNDRIP and BC policy on UNDRIP had little effect. There are very few references to UNDRIP, and there is essentially no sustained discussion of UNDRIP or its interpretation. This is in contrast to some other recent Canadian court decisions that have more explicitly used and interpreted UNDRIP (I will post soon about my forthcoming article, coauthored with a research assistant, on these cases: Dwight Newman & Jenna Renwick, “Uses and Abuses of UNDRIP in Canadian Courtrooms” (2025) Energy Regulation Quarterly (forthcoming)).
However, UNDRIP makes an appearance in three key spots in Madam Justice Young’s judgment. And one shows an actual effect from it, though it’s a bit complex. The effect could be larger in other cases, and the judgment does partly open the door to that.
(1) First, during her discussion of the application of the Aboriginal title test, she rejects arguments that the Court should use UNDRIP to consider against their claim the fact the Cowichan Tribes acquired territory through brutal conquest. She says that today’s international law cannot be applied retroactively (para 653), so UNDRIP does not apply to the issue of how Indigenous peoples themselves acquired territory. It applies to states today to question their acquisition of land in the past but not to the Indigenous peoples’ own acquisition of land in the past.
People may agree or disagree with the merits of that proposition, but it is likely an accurate statement of current law. On this point, UNDRIP didn’t change anything.
(2) Second, there was an attempt by the plaintiffs to argue that UNDRIP and BC’s commitment on UNDRIP affected fiduciary duties BC had in relation to past promises (para 3650). That point was contested by BC (para 3662), and in part, this whole section of the judgment shows some complexities on the way honour of the Crown has replaced fiduciary duty without being noticed as such even by many lawyers and other legal experts - a very messy area of law. Justice Young steers through it well in many respects, but one thing she does not do is say anything explicitly about this argument on UNDRIP. She could have clarified more here but chose not to do so. Again, UNDRIP didn’t change anything here.
(3) Third, though, we are going to see an actual effect from UNDRIP. In deciding whether the indefeasibility provisions in BC’s Land Titles Act (which are meant to make land title that’s registered subject only to other registered interests and otherwise effective against the world) apply to protect private land against (inherently unregistered) Aboriginal title claims, Madam Justice Young refers to s. 8.1 of BC’s Interpretation Act (paras 2257-2258).
This was a new provision adopted in the wake of the BCDRIPA legislation, and it requires courts to try to interpret BC legislation consistently with UNDRIP (putting it informally - if you want the exact wording go look here).
It’s a fascinating provision that has been used surprisingly little since it was adopted as an amendment to the Interpretation Act in November 2021. It doesn’t need to be invoked by an Indigenous party as it just pertains to the interpretation of laws generally. (We discuss briefly the very limited uses so far in Newman & Renwick, forthcoming).
In this judgment, the reference to this provision is very brief, as Justice Young just puts it as extra support for a conclusion she said already followed concerning the Land Titles Act from legal barriers to a province extinguishing Aboriginal title (I discussed that briefly in the last post). But UNDRIP and BC’s legislation on UNDRIP are used. And they’re used in support of (even if not as the main argument for) the idea that Aboriginal title could yet take priority over current private property rights.
The use is very brief, and that’s actually a problem. It shows the courts not really grappling with any sort of appropriate tests or interpretive frameworks for how to use s. 8.1 of BC’s Interpretation Act and its incorporation of UNDRIP or with how to understand UNDRIP itself. (I have written some on the latter but might need to write more on it as well as on the former.)
Beyond that point, in some ways, this use just highlights many possible future uses of UNDRIP for courts to reinterpret BC statutes. The BCDRIPA legislation had a process within it for government to be working on harmonization of legislation with UNDRIP, but the Interpretation Act amendment opens it up for the courts to work on that at the same time.
The fact it has been little used so far is a peculiarity because I don’t think it suggests that BC legislation wouldn’t need changes to be consistent with UNDRIP. It may speak to a surprising lack of awareness of the amendment and/or to some uncertainty on how to go about arguing for a different interpretation of a statute to fit with UNDRIP.
The latter is fair in some ways - there needs to be much more thought by the legal community on how this might work. There have been huge changes made in BC law in recent years, and there’s a lot of work for the profession and judiciary to catch up to use them in any principled, predictable ways. Right now, without this having been entirely noticeable, the state of BC law is extremely unsettled. This judgment just opens new questions, and various actors are going to have to respond in responsible ways.