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.

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Emerging Themes and Principles

In Canada, courts can be seen to engage with Indigenous laws using two broad approaches. The first, arises in the context of claims based on section 35 of the Constitution Act, 1982where Indigenous law is often introduced as evidence to prove the existence of an Aboriginal right – as in Tsilhqot’in Nation v British Columbia, 2014 SCC 44 and Delgamuukw v British Columbia, [1997] 2 SCR 1010. Within this approach, Indigenous law may be received by Canadian courts as evidence that informs the development of principles recognized within Canadian constitutional law.

The second, involves litigants invoking Indigenous law not as evidence, but as pointing to a parallel legal order that applies to the same issues that are before the court. Within this approach, the continually developing body of law reflects an openness on the part of courts to considering the applicability of parallel Indigenous legal orders so long as doing so does not run afoul of the rule of law.

Some other principles that appear to be reflected in this area of law are:

1. There are no spaces in which laws simply do not apply,
2. There are circumstances where Indigenous law could apply in a parallel and complementary way with Canadian law, and
3. There are conceivably circumstances where Indigenous law could displace the application of Canadian law where it can be shown to serve an equivalent purpose in application to the specific facts before the court.

No Lawless Spaces

This principle centres around preserving the rule of law, which is the proposition that everyone is subject to and accountable under the law. In Cavanaugh, the BCCA touched on this principle, noting it “is well-established that, in the absence of a treaty, Indigenous persons are generally subject to the laws of Canada”. The BCCA also highlighted that there are other procedures for challenging the validity of laws, including court orders, in a way that preserves the rule of law.

Parallel and Complementary Legal Orders

In some circumstances, more than one system of law can be applied without conflict between the legal systems. In S.R.L. v J.K.T., 2014 BCSC 2562, for example, the BC Supreme Court and the Shakopee Mdewakanton Sioux (Dakota) Community Tribal Court both determined that they had parallel jurisdiction in relation to family law matters involving the same parties. The two courts communicated with each other to jointly decide each court’s jurisdiction over specific family law matters including divorce, property division, and support obligations. Ultimately, joint hearings were held – within which the BC Supreme Court had jurisdiction over issues concerning children (such as parental roles and times, guardianship, and child support) and the Dakota Community Tribal Court had jurisdiction over spousal support, divorce, and property division.

In Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10, the Supreme Court of Canada considered the application of Vuntut Gwitchin First Nation law and the Canadian Constitution. The Court determined that both systems of law could be applied within a framework that allows for Indigenous laws to grow and be shaped within the broader framework of Canadian constitutional law.

Displacement of Law

In the cases of Cavanaugh and R v Cliffe, 2022 BCCA 305 (Cliffe), individual litigants argued that parallel systems of law operate so as to displace the application of a Canadian law. These cases demonstrate the type of evidence that is necessary in advancing an argument that the application of another system of law does not violate the rule of law. In particular, information regarding the specific applicable law and its relationship to the issues before the court. This likely involves participation at some level of the First Nation whose laws are being invoked.

In Cliffe, the appellant argued that criminal consequences had already been imposed on him for the impugned conduct in accordance with the laws of a First Nation. In the case, the BCCA noted that in order to consider whether the laws of the First Nation might occupy the same space as the laws applicable under Canadian law, they required more information on the nature of the Nation’s proceedings and the legal basis behind the consequences imposed on the appellant.

In Cavanaugh, the BCCA granted intervener status to the Elected Chiefs of Tk’emlúps te Secwépemc so they could provide the Court with information about the relationship between Indigenous laws and the impugned conduct. Based on the Chiefs’ responses, the Court concluded there was not a sufficient connection between the litigants’ conduct and a specific Indigenous law to which the litigants were bound, such that the application of Canadian law might be impacted. One of the Court’s concerns here appears to be that displacing the application of Canadian law, as the litigants requested, in the absence of a parallel law to which the litigants were bound and which could apply in an equivalent way to the conduct at issue, would undermine the rule of law.

The post The Rule of Law within a Legally Plural Society first appeared on British Columbia Law Institute.

Indigenous Territories within Colombia are reserves over which Indigenous Peoples hold title and rights. They are constitutionally recognized political and administrative entities, which comprise approximately one third of Colombia’s geographic area.

The Decree lays out a process for self-determining Indigenous Councils to establish themselves as state recognized bodies with self-governing powers within a delimited geographic area.[4] Where distinct Indigenous authorities have overlapping territories, the process requires consent as between those Indigenous authorities. State recognition leads to an intercultural agreement to clarify powers and functions and the coordination of such with other state and territorial authorities.[5] The framework emphasizes legal pluralism, self-determination, and decision-making guided by Indigenous Peoples’ own systems of knowledge. Article 18 confirms that Indigenous Territories are to be governed by a body formed and regulated in accordance with Indigenous Peoples’ own laws, subject only to the Constitution.

The Decree also outlines mechanisms for strengthening Indigenous jurisdictions. Specifically, legal practitioners must recognize and respect the authority of Indigenous Councils to establish their own judicial norms in accordance with their laws and jurisdiction.[6] Provisions are also included for state financial support to strengthen the exercise of Indigenous jurisdiction and support projects led by Indigenous Peoples within their Territories.[7]

Importantly, the Decree provides that the Colombian government has “no influence whatsoever” on the decisions of an Indigenous Council[8] – signalling the country’s adoption of FPIC.

Drawing Parallels to Canada’s Laws 

Decree 0488/2025 is a recent enactment, and it remains to be seen how it will be implemented. This is a clear and innovative example of how a law can be structured to lend support to the right of self-determination and FPIC. It moves beyond recognition, and implements procedures for legal pluralism and financial support for Indigenous jurisdiction at a broad level, creating a framework that diverse Indigenous nations in Colombia can choose to engage with.[9]

Within Canada’s constitutional framework, legislation and courts play a key role in interpreting and enforcing laws. The enactment of BC’s Declaration on the Rights of Indigenous Peoples Act (DRIPA),[10] and the federal United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA)[11] require that legislation be consistent with UNDRIP. This means that legislation needs to support pluralism within the legal processes it provides for. Legislation can enable legal pluralism by creating a transparent and stable framework for the operation of both state legal systems and Indigenous legal orders. Legislation can do this while continuing to uphold rights and protect citizens from arbitrary exercises of power – key aspects of the rule of law.

Interpretative principles requiring that legislation be construed as upholding the rights of Indigenous peoples is one pathway towards applying law in a legally plural manner. Another pathway, exemplified in Colombia’s Decree, is to shift legislative frameworks towards explicitly enabling procedures for the exercise of rights and jurisdiction flowing from the right to self-determination. A proposed amendment to the recently passed federal Building Canada Act, put forward by Senator Paul Prosper, demonstrated one way in which the new law could explicitly recognize the right of Indigenous peoples to FPIC.[12] The proposed amendment would have required the Governor in Council to consider the extent to which a project could “advance the interests of Indigenous peoples by fulfilling Canada’s commitment to obtaining free, prior and informed consent of those peoples”.[13] While the amendment did not pass, it is an example to consider as we innovate ways to meet the requirements of DRIPA and UNDA.

In the 2025 Speech from the Throne, His Majesty King Charles III explicitly affirmed Canada’s commitment to upholding FPIC in its approach to Indigenous relations and resource development.[14] Weaving the rights of self-determination and FPIC into Canada’s legislative fabric could support the implementation of this commitment.  As quoted by Senator Prosper using the words of Chief Shelly Moore-Frappier of the Temagami First Nation, “The honour of the Crown is not just ceremonial; it is the moral foundation of your relationship with First Peoples. That honour is on the line.”[15]

  Learning from and understanding developments in other jurisdictions can provide guidance for the implementation of UNDRIP in Canada.  Colombia’s Decree 0488/2025 is an important development showing how innovative legal and institutional mechanisms can support a more pluralistic approach to Crown–Indigenous relations. 

[1] Republic of Colombia, Decreto 0488 de 2025, translated in English (5 May 2025) (“Decree 0488/2025”).

[2] Ibid, in the last paragraph of the introduction.

[3] Ibid, in the third paragraph of the introduction.

[4] Ibid, at arts 5-11.

[5] Ibid, at art 11.

[6] Ibid, at art 25.

[7] Ibid, at art 26.

[8] Ibid, at art 19.

[9] Ibid, at art 6 (para 2). The Decree sets out a framework for when the jurisdictional scope of the Indigenous Territory “is located in more than one reservation or other indigenous territorial entity” . Under such circumstances, this provision requires the application for the Indigenous Territory to be signed by the respective Indigenous governing bodies.

[10] Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44.

[11] United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14.

[12] Canada, Debates of the Senate (Hansard), 45^th Parl, 1^st Sess, Vol 154, No 16 (26 June 2025) (P. Prosper) at 11:50.

[13] Ibid at 12:20.

[14] Canada, His Majesty the King in Right of Canada, Building Canada Strong: A bold, ambitious plan for our future Speech from the Throne to open the first session of the 45th Parliament of Canada (Library and Archives Canada, 2025). 

[15] P. Prosper, supra note 9 at 12:20.

The post Legislating Support for Self-Determination and FPIC: Lessons from Colombia first appeared on British Columbia Law Institute.

A word from our Executive Director

BCLI Releases Legal Pluralism Primers 

As we approach Orange Shirt Day and the National Day for Truth and Reconciliation, we at the BCLI are taking time to reflect upon the impacts of residential schools and other harms caused by colonization.  

The work of the BCLI supporting implementation of the BC Declaration on the Rights of Indigenous Peoples Act (Declaration Act) occurs throughout the year and September is an important time for us to reflect on this commitment to reconciliation. We also wish to express our gratitude for the Indigenous leaders, lawyers and scholars who guide the work of BCLI’s Reconciling Crown Legal Frameworks (RCLF) program. 

This week, the BCLI has released three primers on legal pluralism: 

• Primer 3, Legal Pluralism in Canada explores the way in which the Canadian state has always managed coexisting sources of law. 
• Primer 4, Legal Pluralism: Indigenous Legal Orders & Other State Jurisdictions explores how other state jurisdictions have built frameworks for managing coexisting state and Indigenous laws.
• Primer 5, Legal Pluralism: Indigenous Legal Orders & Canadian State Law explores interactions between different systems of law and jurisdiction in Canada by looking at: 1) Indigenous legal orders and 2) the Canadian state and Indigenous legal orders. We are happy to have the opportunity to collaborate with the Indigenous Law Research Unit at the University of Victoria on this publication. 

These primers examine how applying a legal pluralist lens to our systems of law can help to understand existing arrangements and build respectful relationships between legal orders. We believe these primers will help to consider ways in which BC’s Crown legal frameworks can evolve to ensure consistency with the UN Declaration on the Rights of Indigenous Peoples.  

2022 Annual Report 

Our 2022 Annual Report is now available on our website. The report provides an overview of our projects and highlights from the year 2022.

Karen Campbell Executive Director, BCLI

 @kcvancouver
 kcampbell@bcli.org

Undue Influence Recognition and Prevention Guide Update Project 

We have released a new video called: “Why the New Undue Influence Guide is important to your practice”. This video explains why our “Undue Influence Recognition and Prevention: A Guide for Legal Practitioners” is an important resource for those who draft wills and other personal planning documents.

AI and Civil Liability Project

Our Consultation Paper on Artificial Intelligence and Civil Liability, which proposes draft recommendations to modernize tort law to deal with the challenges of AI, remains open for comment until the extended date of November 1st, 2023. Please send comments to <bcli@bcli.org>. 

MEGAN VIS-DUNBAR
Latest Reconciliation Primers Explore Legal Pluralism

GREG BLUE
BCLI Remembers Donovan Waters, KC FRSC 1928-2023

KELLY MELNYK
Inspiring Conversations About Elder Law: The 2023 Canadian Elder Law Conference and CCEL

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