A Weighty Source: UNDRIP as International Law
December 11, 2025
BY Megan Vis-Dunbar
BC’s highest court has clarified the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) should be applied as a “weighty source” for the interpretation of Canadian law.[1] It also rejected the characterization of UNDRIP as a non-binding international instrument. In Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430, this conclusion was reached on the basis of both BC’s Declaration on the Rights of Indigenous Peoples Act (Declaration Act), and as a matter of international law.
BCLI, as part of the Reconciling Crown Legal Frameworks program, has developed a series of primers exploring law reform issues related to the alignment of BC laws with UNDRIP. The BC Court of Appeal’s decision in Gitxaala is a significant contribution to the dialogue and understandings of law reform aimed at aligning laws with UNDRIP. This post considers the international law analysis in Gitxaala.
Debate around whether UNDRIP is binding on Canadian governments has often centred on the fact that UNDRIP is not a treaty. This simplified characterization of UNDRIP overlooks that there is more than one source of binding international law. The analysis of UNDRIP as an international instrument in the majority decision clarifies its standing within domestic law independent of legislative implementation.
Sources of binding international law
International law is a collection of rules and norms that govern relationships between nation states and between states and other entities, such as individuals. Not all international norms are binding, and those that are binding can be created in two main ways: treaty or custom.
Treaties, also referred to as conventions, are one source of binding international law. These are formal agreements through which states agree to create international legal rights and obligations.
Another source of binding international law is customary law. Customary law develops where a general practice becomes accepted as law. General practices can be reflected in how states conduct themselves and in official documents. When a general practice becomes ‘accepted as law’ is often referred to as a matter of opinio juris. Opinio juris refers to a general acceptance that a certain practice is motivated by a sense of obligation. Justice Dickson, drawing on language used by the majority of the SCC in Nevsun Resources Ltd. v Araya,[2] described it as being when “an international practice becomes widely accepted and understood as obligatory”. When this happens, the general practice becomes customary international law, binding on all states unless they have persistently objected to the rule or norm from the outset. Some norms cannot be derogated from; these are referred to as jus cogens.[3]
How international law becomes domestic law
International law forms part of domestic law through different means, depending on its source.
Treaties generally require legislative implementation. This may not be required if a provision of a treaty expresses a customary rule that is already binding in international law. However, international rules grounded in treaty are generally given effect at a domestic level through legislative implementation.[4]
Rules and norms grounded in customary international law do not require legislative implementation to take effect domestically in Canada. Customary law reflects a branch of Canada’s common law and is automatically given direct effect at a domestic level unless there is conflicting legislation.[5]
What is the status of UNDRIP in international law?
While a declaration does not create legal rules and norms the way a treaty does, it can reflect and give rise to customary law. A declaration often reflects a deliberative process. Where a deliberative process results in a formal declaration it can be a source of evidence of general practice which “ripens” into law.[6]
UNDRIP is the result of decades of negotiations between nation states and Indigenous peoples. Canada fully endorsed UNDRIP in 2016, demonstrating a reversal of its initial position before the United Nations General Assembly in 2007.
UNDRIP is a comprehensive articulation of the “minimum standards for the survival, dignity and well-being of the indigenous peoples of the world”.[7] It contains 46 articles that affirm a wide range of rights and obligations. As noted in the BCLI’s primer on The UN Declaration on the Rights of Indigenous Peoples and BC’s Declaration on the Rights of Indigenous Peoples Act, it reflects a global standard of principles which can form part of binding international law by means other than treaty.
The BC Court of Appeal described UNDRIP as an instrument which “aggregates, articulates and extends a range of internationally binding rights, obligations and general principles, together with internationally recognized minimum standards of achievement, aspirations and concerns.” For example, UNDRIP expresses concern that Indigenous peoples have suffered injustices due to colonization. It also expresses globally recognized rights, principles and standards which are generally accepted as matters of international law.[8]
Canada’s unqualified endorsement of UNDRIP and the enactment of the federal United Nations Declaration on the Rights of Indigenous Peoples Act in 2021 reflect Canada’s commitment to UNDRIP. BC has also affirmed its commitment to those internationally recognized rights, obligations and general principles through the enactment of the Declaration Act.
The federal and BC statutes affirming the application of UNDRIP domestically create a framework by which those rights and obligations can be brought into “active effect”.[9] Additionally, these statutes signal Canada and BC’s acceptance of the norms articulated in UNDRIP as forming part of binding international law.
The interpretive role of binding international law
When international norms form binding international law, they play an important role in how domestic laws are interpreted. This follows from the presumption of conformity, a common law principle of interpretation that applies regardless of whether an international instrument has been implemented domestically, and regardless of whether binding international law originates in treaty or custom.
The presumption of conformity requires domestic law to be interpreted consistently with binding international law, wherever possible.[10] It means that legislatures are assumed to act in a way that complies with Canada’s international law obligations. The presumption also means that courts should avoid an interpretation of domestic law that would place Canada in breach of its international law obligations.[11]
Interpretive weight to be given to UNDRIP domestically
The presumption of conformity plays a significant role in the analysis of the weight to be given to UNDRIP in interpreting BC law within the Gitxaala decision. The majority confirmed that the presumption of conformity and the requirement in BC’s Interpretation Act to construe BC enactments as consistent with UNDRIP serve similar functions. In BC, there is both a statutory presumption and a common law presumption of consistency with UNDRIP. There is also a requirement that BC laws be construed consistently with Canada’s solemn commitment to implement UNDRIP and with a view of UNDRIP as a “weighty source for the interpretation of Canadian law”.[12]
[1] Gitxaala v British Columbia (Chief Gold Commissioner), 2025 BCCA 430, para 129 [Gitxaala].
[2] 2020 SCC 5, para 80.
[3] Gitxaala, para 57.
[4] Gitxaala, para 55.
[5] Gitxaala, paras 58 & 62.
[6] Gitxaala, paras 57 & 59.
[7] UNDRIP, art 43.
[8] Gitxaala, paras 66-69.
[9] Gitxaala, para 143.
[10] Gitxaala, para 60.
[11] R v Hape, 2007 SCC 26, para 53.
[12] Gitxaala, paras 125-126 & 129.
