But appeals or amendments could long delay implementation
First Nations in BC have won two key rulings from courts, but the BC government has spoken of appeals to the Supreme Court of Canada on both, meaning it could be years before the laws and their impact can be finally settled.
The most recent ruling came on December 5, when the BC Court of Appeal delivered its Gitxaala decision, following a challenge by the Gitxaala and Ehattesaht Nations to BC’s mineral-tenure system.
The two Nations argued that BC’s automated online registry system permitted “free miners” to register claims to mineral rights on Crown land without first consulting with affected First Nations.
The Nations said this was inconsistent with the “duty to consult” them, as recognized in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
And the Nations argued that BC had, in its Declaration Act of 2019, established that government must bring provincial laws into alignment with UNDRIP.
The initial judge to rule on the Gitxaala/Ehattesaht challenge held that, while there was indeed a breach of the duty to consult, the Declaration Act did not implement UNDRIP into the laws of BC.
Appeal court finds judge erred
But the BC Court of Appeal, in a 2-1majority decision, said this: “The judge erred in adopting an unduly narrow approach to the legal effect of the Declaration Act and UNDRIP.
“Properly interpreted, the Declaration Act incorporates UNDRIP into the positive law of British Columbia with immediate legal effect.
“It affirms the interpretive lens through which BC laws must be viewed and the minimum standards against which they should be measured.
“The Crown has a statutory duty under . . . the Declaration Act to consult and cooperate with the province’s Indigenous peoples in addressing inconsistencies between rights and standards in UNDRIP and the laws of BC.”
And it added that the government was bound to uphold its commitments to the UN declaration “with immediate legal effect.”
Premier Eby slams ruling
In reaction, BC Premier David Eby blew up: “It’s hard to understate the damage that could be done or has already been done to public support for the delicate, critical and necessary work we have to do with First Nations.
“British Columbians, not judges, have to decide our path forward. There are no judicial shortcuts to this work. . . . It is absolutely crucial that it is British Columbians through their elected representatives that remain in control of the process.”
The premier said he will “go to the wall” to protect private properties and their owners.
Eby said his government is reviewing the ruling on Gitxaala/Ehattesaht and could appeal to the Supreme Court of Canada.
However, he also said he would more likely amend the Declaration Act because there appears to be “confusion” by the courts over it.
Eby said amendments to the law could “provide clarity around what was clearly intended when we introduced this legislation, and the court appears to have some confusion about that.”
To BC Conservative calls to repeal the Declaration Act, Ravi Kahlo, BC’s minister of jobs and economic growth, said that repealing the law wouldn’t make title claims go away, would set BC back a generation in relationships with First Nations and would guarantee years of court battles and stalled projects.
Meanwhile, a group of 30 Nations in BC opposed calls to amend the Act.
Amending the law would also take time, and in the meantime Eby’s government also has to cope with a second major court decision, this one on “the Cowichan case.”
Cowichan case affects land rights
That decision came last August 7 from the BC Supreme Court, which ruled that the Cowichan Nation holds Aboriginal title to some 7½ square kilometres of southeastern Lulu Island in Richmond, and an additional two-thirds of a square kilometre along the Fraser River shoreline, where the historic Tl’uqtinus village once stood. The ruling also grants the Cowichan fishing rights in the Fraser River.
It was the first time that a court declared Aboriginal title over land that includes privately owned properties in BC, unlike previous rulings that applied solely to Crown land.
And so the ruling has raised concerns among private property owners, and neighbouring First Nations, and various government entities. The decision has also generated some backlash against the adoption in Canada of the United Nations Declaration on the. Rights of Indigenous Peoples.
As lawyer Corey Shefman notes: “The only land that Cowichan actually asked to have back, and which the court ordered returned, was land owned by Canada and the City of Richmond – not land owned by individuals.”
The Cowichan (comprising the Cowichan Tribes, Stz’uminus First Nation, Penelakut Tribe, and Halalt First Nation) have stressed that they were not targeting private landowners.
“We’re not going after the small private citizens who own a house, and we made that very clear. We do expect government to come to the table in good faith and work this out in terms of what are the rights that exist for Hul’qumi’num people.”
For that, read compensation in one or more forms for the land that was taken from the Cowichan.
Compensation not dispossession
That approach was endorsed by the New Brunswick Court of Appeal, on a claim by Wolastoqey Nation of Aboriginal title on privately owned land covering the western half of New Brunswick.
Speaking for the appeal court, Justice Ernest Drapeau wrote this: “In an article entitled ‘How can Canada reconcile Aboriginal title and the rights of people with property on that land?’ and published in The Globe and Mail on September 9, 2024, Professor Kent McNeil expresses the following opinion:
“‘Dispossessing the current beneficiaries of government land grants would not be just, especially when the land has passed through numerous innocent hands. Instead, compensation should be paid to the Indigenous nations concerned.’
“I endorse this commonsensical and reconciliation-friendly conclusion. In my view, remedial justice favours compensation from the Crown over dispossession of private fee simple owners in all cases although, admittedly, that is especially the case “when the land has passed through numerous innocent hands”.
Longest trial in history
The Cowichan decision came after the longest trial in Canadian history — 513 days over almost four years. The ruling came from Justice Barbara Young of the BC Supreme Court, covering lands owned by the federal government, BC, the City of Richmond, the Vancouver Fraser Port Authority, private companies — and individuals.
The Cowichan Nation presented extensive evidence, including oral histories and historical records. It said the Tl’uqtinus village on the Fraser River once housed up to 108 longhouses and supported as many as 2,250 Cowichan members.
The Cowichan maintained the village until 1871, when the BC government began parcelling out the land without their knowledge or consent. By 1914, the entire area had been sold to settlers, an action Justice Young deemed an infringement on the Cowichan’s Aboriginal rights.
Justice Young found that “The Crown grants of fee simple interest deprived the Cowichan of their village lands, severely impeded their ability to fish the south arm of the Fraser River, and are an unjustified infringement of their Aboriginal title.”
Cowichan Tribes outline aims
The case has also sparked concern from private property owners, and has generated some backlash against the adoption in Canada of the United Nations Declaration on the. Rights of Indigenous Peoples.
Chief Cindy Daniels of the Cowichan Tribes: “Our land and resources objectives are to recover and restore our village and surrounding lands, re-establish our permanent residence and river access, re-establish our cultural practices, including those that support food security and sustainability, realize economic development, and re-establish the truth of our history in that region.”
The land now includes critical infrastructure such as warehouses, port facilities, and municipal assets like dikes, flood-control catchments, and pump stations, which Richmond estimates to be worth $100 billion.
Justice Young ruled that federal and municipal titles in parts of the area are “defective and invalid.” However, she issued an 18-month stay on this aspect of the decision to allow time for title transfers.
Appeal(s) in the future
But the BC government plans to appeal to the BC Appeal Court. And if it loses there, look for an appeal to the Supreme Court of Canada, and thus more years spent before the Cowichan rights are settled.
Legal experts, including Dwight Newman, a professor of law at the University of Saskatchewan, predict the case will likely escalate to the Supreme Court. He estimates that legal costs could approach or exceed $100 million by the time the case concludes.
Also interested in the outcome are the Musqueam Indian Band and the Tsawwassen First Nation, who argue that the Cowichan claims infringe on their own titles and fishing rights.
Our First Nations Natural Gas Alliance naturally supports the full recognition of Indigenous rights, in law and in practice, and endorses laws and policies that enable Indigenous peoples to become full partners in the Canadian economy.
But we need governments to get it right the first time around, and not to produce defective legislation that generates years of appeals, delays, costs, and frustration.
(Posted here 08 January 2026 and updated 14 January 2026)
