Gitxaala v. British Columbia (Chief Gold Commissioner)

2025 BCCA 430 Gitxaala v. British Columbia (Chief Gold Commissioner)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 Date: 20251205 Dockets: CA49428, CA49430 Docket: CA49428 Between: Sm'ooygit Nees Hiwaas, also known as Matthew Hill, on behalf of the Smgyigyetm Gitxaala, and Gitxaala Nation Appellants (Petitioners) And Chief Gold Commissioner of British Columbia, Lieutenant Governor in Council of British Columbia, Attorney General of British Columbia, Christopher Ryan Paul and Oliver John Friesen Respondents (Respondents) And British Columbia Civil Liberties Association, First Nations Summit, Union of B.C. Indian Chiefs, BC Assembly of First Nations, Cheona Metals Inc., B.C. Human Rights Commissioner and Association for Mineral Exploration British Columbia Interveners - and - Docket: CA49430 Between: Ehattesaht First Nation and Chief Simon John in his capacity as Chief of the Ehattesaht First Nation on behalf of all members of the Ehattesaht First Nation Appellants (Petitioners) And His Majesty the King in Right of British Columbia, as represented by the Chief Gold Commissioner, Attorney General of British Columbia, Privateer Gold Ltd., Lieutenant Governor in Council of British Columbia, Andre Lyons, Calvin Manahan, and Forest Crystal Ltd. Respondents (Respondents) And British Columbia Civil Liberties Association, First Nations Summit, Union of B.C. Indian Chiefs, BC Assembly

of First Nations, Cheona Metals Inc., B.C. Human Rights Commissioner and Association for Mineral Exploration British Columbia Interveners Before: The Honourable Justice Dickson The Honourable Justice Iyer The Honourable Justice Riley On appeal from: An Order of the Supreme Court of British Columbia, dated September 26, 2023 (Gitxaala v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680, Vancouver Dockets S219179 and S224680). Counsel for the Appellants in CA49428: L.C. Fong, K.C. R.E.S. Tillman A. Nurse, Articled Student Counsel for the Appellants in CA49430: L.C. Glowacki G. Hermansen Counsel for the Respondents, Chief Gold Commissioner of British Columbia, Lieutenant Governor in Council of British Columbia and Attorney General of British Columbia: L. Greathead S.A. Bevan H.E. Cochran Counsel for the Respondent, Privateer Gold Ltd.: J.L. Williams M.A. Sargent Counsel for the Respondents, Andre Lyons, Calvin Manahan and Forest Crystals Ltd.: D. Eeg Counsel for the Intervener, British Columbia Civil Liberties Association, First Nations Summit, Union of B.C. Indian Chiefs, BC Assembly of First Nations: R.M. Kyle, K.C. J. Walker Counsel for the Intervener, B.C. Human Rights Commissioner: T. Williams-Davidson, K.C. S.Y. Khan, K.C. Counsel for the Intervener, Association for Mineral Exploration British Columbia: K.G. O'Callaghan S.P.W. Geisterfer Counsel for the Intervener, Cheona Metals Inc.: K.L.R. Hille J.E. Abell Place and Date of Hearing: Vancouver, British Columbia January 20-22, 2025 Place and Date of Judgment: Vancouver, British Columbia December 5, 2025 Written Reasons by: The Honourable Justice Dickson Concurred in by: The Honourable Justice Iyer Dissenting Reasons by: The Honourable Justice Riley (page 75, para.

201) Summary: The appellants, the Gitxaala and Ehattesaht First Nations, challenged the mineral tenure system under the Mineral Tenure Act, R.S.B.C. 1996, c.

292. They alleged the operation of the automated online registry system permitting "free miners" to register claims to mineral rights on Crown land prior to consultation with affected First Nations was inconsistent with the duty to consult, the honour of the Crown, s. 3 of British Columbia's Declaration on the Rights of Indigenous Peoples Act, S.B.C. 2019, c. 44 ("Declaration Act"), and the rights recognized in the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP" or "Declaration"). The chambers judge found there was a breach of the duty to consult. However, he found the Declaration Act did not create justiciable rights and it did not implement UNDRIP into the laws of BC. Majority (per Justice Dickson and Justice Iyer): Appeals allowed. 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 s. 3 of 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. The issue of consistency between

the Mineral Tenure Act and UNDRIP is a justiciable question. UNDRIP and the mineral claims regime are inconsistent. Dissent (per Justice Riley): The Declaration Act gives the executive branch of government a statutory mandate and duty to take all measures necessary to bring British Columbia's laws into alignment with UNDRIP, as an exercise in legislative reconciliation. Oversight and accountability for this law reform exercise is assigned to the legislative branch of government. Nowhere in the Declaration Act is the judicial branch invited or called upon to adjudicate claims of inconsistency between UNDRIP and British Columbia's laws, and doing so would take the court outside of its proper role in our constitutional democracy. Table of Contents Paragraph Range Overview [1] - [8] Background [9] - [23] The Parties [9] - [13] The Petitions [14] - [19] Mineral Tenure Act [20] - [21] The Hearing of the Petitions [22] - [23] Reasons for Judgment: 2023 BCSC 1680 [24] - [43] Preliminary Matters [25] - [27] Section 35 Duty to Consult [28] - [28] Nature of the Breach of s. 35 Duty to Consult [29] - [32] UNDRIP and the Declaration Act [33] - [41] Remedy and Result [42] - [43] Post-Judgment Developments [44] - [47] On Appeal [48] - [52] Legal Framework and Context [53] - [100] International Law and Its Domestic Reception: General Principles [53] - [63]

UNDRIP [64] - [70] Federal Declaration Act [71] - [73] Recent Jurisprudence Regarding the Effect of the Federal Declaration Act and UNDRIP [74] - [83] Declaration Act [84] - [87] Interpretation Act [88] - [100] Discussion [101] - [198] What is the Applicable Standard of Review? [101] - [103] What is the Proper Scope of the Appeal? [104] - [111] Provincial Respondents and Privateer Gold [104] - [106] Appellants and Interveners [107] - [109] Analysis [110] - [111] What is the Effect of the Declaration Act and UNDRIP on the Laws of British Columbia? [112] - [163] Appellants [112] - [117] Provincial Respondents [118] - [121] Analysis [122] - [163] Presumption of Conformity [125] - [132] Interpretation of the Declaration Act [133] - [157] The Declaration Act, the Honour of the Crown, and the Duty to Consult [158] - [163] Is the Question of Consistency Between the Mineral Claims Regime and the Declaration Act and UNDRIP Justiciable? [164] - [182] Appellants [164] - [166] Provincial Respondents [167] - [169] Analysis [170] - [182] What Relief, If Any, Should Be Granted on the Appeal? [183] - [198] Appellants [183] - [185] Respondents [186] - [189] Analysis [190] - [198] Closing Comment [199] - [199] Conclusion [200] - [200] Reasons for Judgment of the Honourable Justice Riley Introduction [201] - [206] Background [207] - [213] Analysis [214] - [255] Statutory Interpretation [216] -

[239] Justiciability [240] - [255] Conclusion [256] - [256] Appendix A (UNDRIP) Reasons for Judgment of the Honourable Justice Dickson: Overview [1] This appeal concerns the interpretation and legal effect of the Declaration on the Rights of Indigenous Peoples Act, S.B.C. 2019, c. 44 [Declaration Act] and the United Nations Declaration on the Rights of Indigenous Peoples, U.N.G.A., 33rd Sess., U.N. Doc. A/RES/61/295 (2007) G.A. Res. 61/295 [UNDRIP or Declaration]. It requires us to interpret key provisions of the Declaration Act and to consider the justiciability of alleged inconsistencies between the rights recognized in the Declaration Act and UNDRIP, on the one hand, and, on the other, the operation of a provincial statutory scheme. Some of the issues raised come before this Court for the first time. [2] UNDRIP is an international declaration of the individual and collective rights of the world's Indigenous peoples. Adopted by the United Nations General Assembly in 2007, it identifies "the urgent need to respect and promote the inherent rights of indigenous peoples" (preamble) and provides that the rights it recognizes "constitute the minimum standards for the survival, dignity and well-being of indigenous peoples of the world" (art. 43). Among other things, UNDRIP affirms that Indigenous peoples have the right to self-determination (art. 3), the right to self-government

(art. 4), and rights to own, use and control their traditional lands, territories and resources (arts. 26, 27, 29, 32). It also encourages states to implement "all their obligations as they apply to indigenous peoples under international instruments" (preamble) and provides that states shall consult and cooperate in good faith with Indigenous peoples "in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources" (art. 32(2)). [3] Canada initially voted against the General Assembly's adoption of UNDRIP. However, over time its position shifted, and in 2016 the federal government endorsed UNDRIP without qualification. Five years later, in 2021, Parliament enacted the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 [Federal Declaration Act], which expresses a commitment to "fully adopt and implement the Declaration as the framework for reconciliation" and affirms UNDRIP as "a source for the interpretation of Canadian law" (preamble). Section 4 of the Federal Declaration Act states that its purposes are to "affirm the Declaration as a universal international human rights instrument with application in Canadian law; and provide a framework for the Government of Canada's implementation of the Declaration". [4] British Columbia was the first Canadian jurisdiction to

enact a statute incorporating UNDRIP into domestic law. Passed in 2019, the Declaration Act includes within its purposes to "affirm the application of the Declaration to the laws of British Columbia" and "contribute to the implementation of the Declaration" (ss. 2(a) and (b)). It obliges the government and government actors in consultation and cooperation with the province's Indigenous peoples to "take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration" (s. 3), "prepare and implement an action plan to achieve the objectives of the Declaration" (s. 4), and report annually to the Legislature on progress made toward implementing the measures and achieving the goals of the action plan (s. 5). [5] The appellant First Nations assert Aboriginal and Indigenous rights in and title to certain territories in British Columbia. Following the grant of mineral claims in those territories, they brought petitions below challenging the mineral tenure system then operated under the Mineral Tenure Act, R.S.B.C. 1996, c.

292. The appellants contended that the operation of an automated online registry permitting "free miners" to register claims to mineral rights on Crown land prior to consultation with affected First Nations (the "Mineral Claims Regime") was inconsistent with the Crown's duties under s. 35 of the Constitution Act, 1982 ["Constitution Act"], the honour of the Crown, s. 3 of the Declaration Act, and their rights recognized in UNDRIP and the Declaration Act. Together with other relief, they sought declarations with respect to the alleged inconsistencies. [6] The chambers judge accepted that the Crown's s. 35 duty to consult was triggered by the grant of mineral claims based on the test established in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 [Haida]. He held that the absence of a system for pre-registration consultation breached that duty to consult. As a result, the judge granted related declarations, but he suspended them to allow for the design and implementation of a system providing for consultation prior to issuance of mineral claims. However, he concluded that, while the Declaration Act contemplates a forward-looking process of consultation and cooperation to address the objectives of UNDRIP, it does not "implement" UNDRIP into British Columbia law, and he stated that UNDRIP "remains a non-binding international instrument". He also concluded that s.

3 of the Declaration Act "does not create justiciable rights"; therefore, he declined to adjudicate the question of whether the Mineral Claims Regime was consistent with UNDRIP. In the result, he dismissed the appellants' claims for related declaratory relief, from which orders they appeal. [7] In my view, the judge adopted an unduly narrow approach to the interpretation and 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. This does not mean that s. 2(a) of the Declaration Act creates or confers new substantive legal rights or obligations arising from UNDRIP. Rather, it affirms the interpretive lens through which British Columbia laws must be viewed and the minimum standards against which they are to be measured. In addition, s. 3 imposes a statutory duty on the Crown to consult and cooperate with the province's Indigenous peoples in addressing unresolved inconsistencies between UNDRIP rights and standards, on the one hand, and, on the other, the laws of British Columbia. The consistency question raised by the appellants is justiciable, and the answer is obvious: UNDRIP and the Mineral Claims Regime are inconsistent. The Crown must take that inconsistency into account in discharging its consultative duties with respect to the Mineral Claims

Regime. [8] For these reasons and those that follow, I would allow the appeal and grant declarations in the form outlined below. Background The Parties [9] The judge determined two separate petitions brought by two different First Nations following a joint hearing. [10] The petitioners in the first proceeding were Sm'ooygit Nees Hiwaas, also known as Matthew Hill, on behalf of the Smgyigyetm Gitxaala, and Gitxaala Nation ("Gitxaala"). Gitxaala assert Aboriginal and Indigenous rights in and title to traditional territory located south of Prince Rupert, including Banks Island. The respondents in the first proceeding were the Chief Gold Commissioner of British Columbia ("CGC"), the Lieutenant Governor in Council of British Columbia ("LGIC"), and the Attorney General of British Columbia ("AGBC"), together with holders of certain mineral claims. [11] The petitioners in the second proceeding were Ehattesaht First Nation and Chief Simon John in his capacity as Chief of Ehattesaht First Nation on behalf of all members of Ehattesaht First Nation ("Ehattesaht"). Ehattesaht assert Aboriginal and Indigenous rights in and title to traditional territory located northwest of Tofino, including the Nomash and Zeballos River watersheds. The respondents in the second proceeding were His Majesty the King in Right of British Columbia (the "Crown") as represented by the CGC, the AGBC, and the LGIC,

together with holders of certain mineral claims. [12] Eight intervenors participated in the joint hearing, including the Human Rights Commissioner for British Columbia ("BCHRC"). [13] In this Court, the appellants are Gitxaala and Ehattesaht. The respondents are the CGC, the AGBC, the LGIC, the Crown (together, the "provincial respondents"), and two registered mineral claim holders, Privateer Gold Ltd. and Forest Crystals Ltd., as well as two Forest Crystals directors, Calvin Manahan and Andre Lyons. There are also several interveners, including the BCHRC, BC Civil Liberties Association, First Nations Summit, Union of BC Indian Chiefs, and BC Assembly of First Nations ("BCCLA & FNLC"), Cheona Metals Inc. ("Cheona Metals"), and the Association for Mineral Exploration British Columbia ("AME"). The Petitions [14] Gitxaala and Ehattesaht brought similar, though not identical, challenges to the operation of the Mineral Claims Regime, or, alternatively, the validity of the underlying legislation. Gitxaala filed their petition in October 2021. Ehattesaht filed their petition in June 2022. [15] In their Further Amended Petition, Gitxaala sought declarations in relation to the duty to consult, the honour of the Crown, and the constitutional validity of s. 4 of the Mineral Tenure Act Regulation, B.C. Reg. 529/2004, together with orders quashing specified mineral claims and injunctive

relief in connection with the operation of the Mineral Claims Regime. Gitxaala also sought "for the purposes of, or pursuant to, section 3 of the [Declaration Act]", declarations that the Mineral Claims Regime's operation "is not consistent" with UNDRIP, and the Crown "has a statutory duty to consult and cooperate with Gitxaala concerning measures necessary to ensure the laws of British Columbia, as they relate to mineral titles within Title Lands, are consistent with the Declaration". [16] In their Further Amended Petition, Ehattesaht similarly sought declarations in relation to the duty to consult, the honour of the Crown, the validity and applicability of aspects of the statutory scheme, orders quashing specified mineral claims, and injunctive relief. As to UNDRIP and the Declaration Act, Ehattesaht sought declarations that the operation of the Mineral Claims Regime is inapplicable to the extent it operates without consultation or consent in a manner contrary to "the indigenous rights of Ehattesaht and/or First Nations recognized in UNDRIP and [the Declaration Act]". [17] Both petitioners described the statutory basis for the Mineral Claims Regime, the way in which it operated, and its alleged adverse impacts on their rights and title. Both pleaded that the Crown had failed to fulfil its duty to consult prior to the grant of mineral claims, and both relied on common law

precedents and principles relating to the honour of the Crown and the duty to consult, the Interpretation Act, R.S.B.C. 1996, c. 238, the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, the Declaration Act, and UNDRIP. [18] The provincial respondents denied that the registration of a mineral claim triggered a duty to consult and pleaded that the Crown had acted honourably. They also pleaded that the Declaration Act provides a process for implementation of UNDRIP, but it does not give UNDRIP independent legal force, and that, while it may be used as an interpretive aid, UNDRIP cannot be used to amend legislation or the Haida test. [19] To the extent relevant to their defences, the individual respondents opposed the relief sought in the petitioners' Further Amended Petitions. Mineral Tenure Act [20] The Mineral Tenure Act regime in British Columbia is rooted in colonial legislation first codified in the Gold Fields Act, 1859. That Act introduced the concept of the "free miners" and "free entry" system predicated on the notion that the Crown owns all lands within a colony's territorial boundaries that have not otherwise been devolved, granted or sold and that all subsurface minerals vest in the Crown. Under the free entry system, "free miners" were given license to roam the colony and physically stake claims, at which point rights accrued to the holder of the claim. [21]

Over the years, British Columbia modified and amended its mineral tenure legislation. In 2004, it adopted a system for online registration of mineral claims under the Mineral Tenure Act. When the appellants filed their petitions in 2021 and 2022, the draft action plan prepared under s. 4 of the Declaration Act did not include reform of the Mineral Tenure Act. The government added it to the draft action plan after the petitions were filed. The Hearing of the Petitions [22] The parties advanced a wide variety of arguments at the hearing in general alignment with their pleadings. The arguments focused on the interpretation and legal effects of s. 35 of the Constitution Act, the Declaration Act, and UNDRIP in relation to the operation of the Mineral Claims Regime. [23] Neither the petitioners nor the provincial respondents argued that s. 2(a) of the Declaration Act, in and of itself, gives UNDRIP the full force and effect of an enactment in British Columbia law such that it can create or confer substantive rights on Indigenous peoples and impose obligations on the government. However, the BCHRC submitted that s. 2(a) affirms the application of UNDRIP to the laws of British Columbia, and thereby implements it, which means that UNDRIP now has the full force and effect of law in British Columbia. Reasons for Judgment: 2023 BCSC 1680 [24] The judge began his reasons by summarizing the

petitioners' claims, the parties' positions, and his key findings. As to the latter, he stated that he had concluded the Mineral Claims Regime triggered a duty to consult flowing from s. 35 of the Constitution Act; s. 2 of the Declaration Act "does not implement UNDRIP into the domestic law of BC"; s. 3 of the Declaration Act "does not create justiciable rights"; the petitioners "are not entitled to any relief under [the Declaration Act] or UNDRIP"; and, the proper remedy was a declaration that the province owes a duty to consult. The implementation of the remedy was suspended for 18 months to allow for consultation and the design of a system that allows for consultation: at paras. 14-15. Preliminary Matters [25] The judge reviewed several salient legal concepts and listed the issues for determination: at paras. 16, 19. He also dealt with various procedural matters, including the proper mode of proceeding and the nature of the administrative decision under review. [26] Regarding the nature of the decision under review, the judge stated that the issue was "the CGC's ongoing decision not to implement a system that provides for consultation prior to the issuance of mineral claims", and this "impugned decision-making can be categorized as a series of 'non-decisions'": at paras. 76-77. He found the petitioners were seeking "judicial review of a series of non-decisions", which

presented an "awkward fit" for a judicial review, although he accepted the provincial respondents' position that "the petitioners' claims should be adjudicated, in full, on the basis of [their] petitions": at paras. 78-79. He went on to state that he was proceeding "on the basis that the petitioners question the series of higher-level decisions (or non-decisions) that have the effect of allowing the registration of mineral claims without consultation": at para.

97. He also stated that whether a duty to consult arises is a question of law to be reviewed on a standard of correctness: at para. 98. [27] After resolving other procedural and evidentiary matters, the judge identified the core substantive issue, namely, whether the provincial respondents were correct in asserting that the granting of a mineral claim does not trigger a duty to consult: at para.

248. For purposes of analysis, he posed three related questions: i) is there a duty to consult under s. 35 of the Constitution Act and the Haida test?; ii) where does the infirmity lie?; and iii) does a duty arise under the Declaration Act?: at para.

251. Then he dealt with each question in turn. Section 35 Duty to Consult [28] The judge rejected the petitioners' submission that the Mineral Claims Regime interfered with their laws, governance and management of their territories with adverse impacts that gave rise to a duty to consult. He stated that to trigger the duty to consult, "the impugned Crown conduct must in some way impede the petitioners' ability to govern their land in the future, when title is established", but that the petitioners' submission on the point was "only that their ability to govern at present is interfered with": at para.

306. He stated this "is not the type of adverse impact contemplated by the Haida Test": at para.

306. However, he found that allowing mineral claims without consultation created adverse impacts on the petitioners' Aboriginal rights in connection with their cultural and spiritual beliefs, and adverse physical and economic impacts on the Aboriginal rights and title of First Nations generally. Accordingly, he held, a s. 35 duty to consult was triggered under the Haida test, and the province was in breach of that duty to consult: at paras. 320-330, 389-402. Nature of the Breach of s. 35 Duty to Consult [29] The judge found that the Mineral Tenure Act is constitutionally valid because it provides the necessary authority and discretion to the CGC to institute a pre-registration consultation process. That being so, he concluded that the failure lay at the CGC level: at paras. 405-406. [30] In reaching his conclusion, the judge stated that he construed the Mineral Tenure Act using UNDRIP as an interpretive aid under s. 8.1 of the Interpretation Act. [31] Section 8.1 provides that "every enactment must be construed as upholding and not abrogating or derogating from the aboriginal and treaty rights of Indigenous peoples as recognized and affirmed by section 35", and that "every Act and regulation must be construed as being consistent with the Declaration". The judge described s. 8.1 as "an umbrella that covers the entirety of the process": at para.

417. He stated that "if there are two (or more) possibly valid interpretations of the [Mineral Tenure Act], then I am to construe the Act in a manner that is consistent with UNDRIP (i.e., that protects Indigenous rights)": at para.

416. Then he stated that "the application of s. 8.1 in this case does no more, and no less, than provide that overlay", and he was obliged to "construe [the Mineral Tenure Act] in a manner that upholds the Aboriginal rights enshrined in s. 35 and set out in UNDRIP": at para.

418. He went on to conclude that "where there is a question in the interpretation of [the Mineral Tenure Act] regarding the breadth of the CGC's authority, I construe that issue liberally, such that the legislation upholds Indigenous rights" and "[t]he logical end-point of that analysis is that the CGC has been improperly implementing [the Mineral Tenure Act] by not providing for pre-registration consultation": at para. 418. [32] After finding that the CGC had breached the s. 35 duty to consult, the judge turned to whether to grant the petitioners' applications for "a declaration that the current process for granting mineral titles under the [Mineral Tenure Act] is inconsistent with UNDRIP": at para.

432. This required him to consider "the proper interpretation of [the Declaration Act]": at para.

433. UNDRIP and the Declaration Act [33] The judge began this aspect of his analysis with a review of the relevant background, including the General Assembly's adoption of UNDRIP, Canada's endorsement of UNDRIP, and British Columbia's enactment of the Declaration Act and s. 8.1 of the Interpretation Act: at paras. 436-441. With that background in mind, he asked: a) did the Declaration Act implement UNDRIP into the domestic law of British Columbia?; and b) does s. 3 of the Declaration Act raise justiciable questions of law, and, if so, what are they?: at para. 442. [34] Under the heading "Did [the Declaration Act] "implement" the Declaration into the domestic laws of British Columbia?", the judge stated that a non-binding international instrument endorsed by the executive branch does not become a binding source of domestic law in Canada unless it is implemented through legislation: at para. 444, citing Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 69, 1999 CanLII 699. After explaining why by quoting from the minority discussion in Nevsun Resources Ltd. v. Araya, 2020 SCC 5 [Nevsun] on implementing treaties, he addressed the BCHRC's position, which he understood to be that s. 2(a) of the Declaration Act "implements" UNDRIP in the sense that "it has the same legal effect as a provincial or federal enactment. It can create rights for

citizens, impose obligations on the government, and create causes of action [and] now has the full force and effect of law in British Columbia": at para. 450. [35] The judge rejected this conception of the legal effect of the Declaration Act and UNDRIP. Based on its "broad and imprecise language", he described s. 2(a) as a purpose statement, and not a substantive provision that creates rights or imposes obligations: at paras. 457-463. In support of his view, the judge contrasted the language of s. 2(a) with that of other treaty-implementing legislation and stated that the phrase "to contribute to the implementation" of UNDRIP in s. 2(b) indicates that "implementation" was not accomplished: at para.

464. He also emphasized the prospective nature of the obligations under ss. 4 and 5, and found that "a correct, purposive interpretation of [the Declaration Act] does not lead to the conclusion that [the Declaration Act] 'implemented' UNDRIP into domestic law": at para.

466. Rather, he stated, the Declaration Act "contemplates a process wherein the province, "'in consultation and cooperation with the Indigenous peoples in British Columbia' will prepare, and then carry out, an action plan to address the objectives of UNDRIP": at para. 466. [36] Further, the judge stated the context surrounding the passage of the Declaration Act included statements by the Minister of Indigenous Relations and Reconciliation that the Declaration Act would "not in and of itself, give the UN declaration legal force and effect" and aligning domestic laws with UNDRIP would be "generational work": at para.

467. He acknowledged the human rights character of the Declaration Act and requirements of s. 8.1(3) of the Interpretation Act, but he found "these factors do not overcome the fact that s. 2(a) is a broad statement of purpose that cannot, on its own, produce substantive outcomes": at para. 469. [37] In sum, the judge concluded: [470] s. 2(a) of [the Declaration Act] does not implement UNDRIP into the domestic law of British Columbia. This interpretation is consistent with the characterization of s. 2(a) as a purpose statement as well as the legislation's purpose and context. As such, UNDRIP remains a non-binding international instrument. [38] Having answered "no" to the first question, the judge moved on to the second question. Under the heading "Does s. 3 of [the Declaration Act] raise justiciable questions of law?", he asked whether, considering its text, context and purpose, s. 3 "creates justiciable rights": at para.

471. He summarized the governing principles regarding justiciability and outlined the parties' competing positions on the issue. Then he conducted his justiciability analysis. [39] As a starting point, the judge accepted that in isolation, "the courts have the institutional capacity and legitimacy to determine whether the laws of British Columbia are 'consistent' with the rights set out in UNDRIP", and, in that sense, "the question of 'consistency' is justiciable": at para.

485. However, he concluded that the consistency between British Columbia laws and UNDRIP rights is nevertheless non-justiciable: [486] while s. 3 may raise a justiciable question, it does not necessarily follow that the section either commands or invites judicial intervention. Put differently, notwithstanding my conclusion that "consistency" is justiciable, I must still determine whether s. 3 calls on the courts to adjudicate the question of consistency. [487] I conclude that s. 3 does not have that effect [40] The judge gave two reasons for his view that s. 3 of the Declaration Act does not "call upon the courts to adjudicate the issue of consistency": i) s. 3 does not impose a requirement of consistency; and ii) s. 3 allows for the Indigenous peoples of the province instead of the courts to be involved in determining whether British Columbia laws are consistent with UNDRIP: [488] First, s. 3 does not impose a requirement of consistency. As noted, s. 3 uses imperative language, specifically the term "must." However, the word "must" is used in connection with the phrase "take all measures necessary." No imperative language is used in connection with the phrase "consistency." This, in my view, indicates that s. 3 was not intended to invoke the courts to adjudicate every instance where the laws of BC may be inconsistent with UNDRIP. [489] Second, s. 3 allows for the Indigenous

peoples of BC, instead of the courts, to be involved in the determination of whether the province's laws are consistent with UNDRIP. Section 3 starts with the phrase "In consultation with the Indigenous peoples of British Columbia". I consider that placement and wording to be important. There must be cooperation and consultation in determining whether the duties imposed by s. 3 are satisfied. It is not for the court to intervene and unilaterally determine what is meant by this provision. The provision contemplates ongoing cooperation between the government and the Indigenous peoples of BC to determine which of our laws are inconsistent with UNDRIP. [Emphasis added.] [41] Based on the foregoing analysis, the judge concluded as follows: [490] Therefore, I find that s. 3 does not call upon the courts to adjudicate the issue of consistency. I do note, however, that s. 3 obligates the province to consult and cooperate with the Indigenous peoples of British Columbia. It may be the case that failure to do so would constitute a justiciable breach of the government's obligations. However, that question does not arise on this hearing and will be for a future court to decide. [491] As a final point, I note that the parties agree that the question of what is meant by "all measures necessary" is not a justiciable question. Because there is no dispute on this issue, I accede to the parties'

position. I do not suggest that I have determined the issue. Remedy and Result [42] With respect to remedy, the judge declared that the Crown owes a s. 35 duty to consult prior to issuing mineral claims under the Mineral Tenure Act, and the CGC's conduct in establishing an online system allowing for automatic registration of mineral claims without creating a system for consultation breached that duty. As noted, he suspended the latter declaration for 18 months to allow for the design and implementation of a regime that provides for consultation prior to the issuance of mineral claims. He dismissed the petitioners' other claims for relief, including their claims for declarations of inconsistency between the Mineral Claims Regime and the Indigenous rights recognized in the Declaration Act and UNDRIP. [43] In his final summary, the judge stated that he found "s. 2 does not implement UNDRIP into the domestic law of BC" and "s. 3 does not create justiciable rights": at para.

559. The orders that he made provide, in relevant part: [Gitxaala Petition] 4. The following claims for relief sought by the Petitioners are dismissed: a) a declaration that, for the purposes of, or pursuant to, section 3 of [the Declaration Act] the current system for granting mineral claims is inconsistent with [UNDRIP]; b) a declaration that, for the purposes of, or pursuant to, section 3 of [the Declaration Act], the Crown has a statutory duty to consult and cooperate with the Petitioners concerning measures necessary to ensure the laws of British Columbia, as they relate to mineral titles within the territory in which the Petitioners assert Aboriginal rights and title under section 35 of the Constitution Act, 1982, are consistent with [UNDRIP]. [Ehattesaht Petition] 4. The following claims for relief sought by the Petitioners are dismissed: a) A declaration that the current system for granting mineral claims is inconsistent with [UNDRIP] and [the Declaration Act]; Post-Judgment Developments [44] The judge released his reasons for judgment on September 26, 2023. Shortly thereafter, the appellants appealed the orders dismissing their applications for UNDRIP-related declaratory relief, together with those dismissing their applications for injunctions and quashing orders. The provincial respondents did not appeal or cross appeal the declarations regarding the s. 35 duty to

consult and related breaches of duty. [45] In February 2024, the Supreme Court of Canada released its reasons for judgment in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 [First Nations Families Act Reference]. As discussed below, the Court stated in the First Nations Families Act Reference that UNDRIP "has been incorporated into the country's positive law" by the Federal Declaration Act: at para.

4. Additional judgments have since touched on the domestic effect of UNDRIP, including R. c. Montour, 2023 QCCS 4154; Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10; and Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319 [Kebaowek]. [46] In March and July of 2024, the LGIC made orders under s. 7 of the Environment and Land Use Act, R.S.B.C. 1996, c. 117, preventing new mineral claim registrations and deferring mining activity under existing claims in Gitxaala and Ehattesaht territories. As a result, the appellants abandoned their appeals of the orders dismissing the quashing and injunctive relief previously sought. [47] In March 2025, the Mineral Claims Regime was replaced with a new mineral claims consultation framework: see Government of British Columbia, "Mineral Tenure Act Reform", online: Government of British Columbia <https://engage.gov.bc.ca/mtareform/>. These changes were evidently made in response to the lower court ruling, and they came into effect after the hearing of the appeal. They are not germane to the issues on appeal, but important to note as part of the narrative. On Appeal [48] The parties rely on many of the arguments they made below, with refinements and updates in response to recent developments. Those positions are discussed in detail in the analysis that follows. [49] The BCCLA & FNLC, Cheona Metals, and the BCHRC generally

support the appellants' position. In doing so, the BCCLA & FNLC emphasize the interpretive significance of UNDRIP in light of s. 8.1(3) of the Interpretation Act. Cheona Metals emphasizes the significance of the presumption of conformity, customary international law, and international treaties and conventions in domestic law. The BCHRC emphasizes the human rights character of the Declaration Act and submits that s. 2(a) of the Declaration Act and article 40 of UNDRIP make the question of consistency between domestic laws and UNDRIP justiciable, as is the question of "all measures necessary" under s. 3 of the Declaration Act. [50] To varying extents, Forest Crystals and its directors, Privateer Gold and AME generally support the position of the provincial respondents. Forest Crystals and its directors emphasize that their mineral activities were irrelevant to the live issues and ask that we encourage all concerned not to draw third parties into complex litigation of this sort unnecessarily. Privateer Gold submits that the essential question below was whether the Crown has a duty to consult, which was resolved, and, therefore, the appeal is moot. The AME emphasizes the importance of mining to British Columbia's economy, submits that the judge interpreted the Declaration Act correctly, and says that reconciliation is most effectively achieved through non-court processes such as

those envisioned by the Declaration Act. [51] Broadly speaking, the issues that emerge for determination are: a) What is the applicable standard of review? b) What is the proper scope of the appeal? c) What is the effect of the Declaration Act and UNDRIP on the laws of British Columbia? d) Is the question of consistency between the Mineral Claims Regime and the Declaration Act and UNDRIP justiciable? e) What relief, if any, should be granted on appeal? [52] To explain my conclusions on these issues I will provide an overview of the legal framework and statutory context for their determination, followed by a discussion of each issue. Legal Framework and Context International Law and Its Domestic Reception: General Principles [53] International law regulates the conduct and relations of states, and between states and other entities, including individuals. Its sources are established by the practice of states. The main sources are treaty, custom, and widely recognized general principles of law. Judicial decisions and the writings of pre-eminent authors are a subsidiary means of determining the rules of international law: Nevsun at para. 76; Statute of the International Court of Justice, Can. T.S. 1945 No. 7, art. 38(1); Gib van Ert, Using International Law in Canadian Courts, 3rd ed. (Toronto: Irwin Law, 2024) at 15-16 ["Using International Law in Canadian Courts"]. [54] Treaties

are the most significant law-making instruments in modern international law. Formal agreements concluded between or among states with the intention of establishing international legal rights and obligations, they are the product of state consent to be bound by the rules articulated in and created by the treaty or convention. Consent to be bound by those rules is expressed by signature or ratification in accordance with the constitutional laws of the consenting state: Using International Law in Canadian Courts at 16-20; J. Brunnée and S.J. Toope, "A Hesitant Embrace: The Application of International Law by Canadian Courts" (2002), 40 Can. Y.B. Intl. L. 3 at 14 ["A Hesitant Embrace"]. [55] Under Canada's constitutional system of government, international treaties and conventions are not "self-executing". As a result, they are not stand-alone sources of domestic law. This is because the executive branch is empowered to conduct foreign affairs, but not to make domestic law without legislative action. Based on principles of parliamentary sovereignty and democracy, unless a provision in a treaty or convention expresses a customary rule or peremptory norm of international law, it will only be given direct domestic legal effect through legislative implementation. In other words, Canada maintains a dualist system of application of treaty and conventional international law: Health

Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 at para. 69; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62 at paras. 149-150; Using International Law in Canadian Courts at 284-285. [56] The extent to which a particular statute implements a treaty domestically depends on the circumstances, such as the text of the statute and the specificity of the treaty. Depending on the will of the legislator, treaty-created international legal rights and obligations may be fully or partially implemented by statute in domestic law: Society of Composers, Authors, and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30 at paras. 46-48; Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022) at §18.03 ["Sullivan, Statutes"]. [57] While treaties are now the pre-eminent form of law-making on the international plane, custom is the oldest and original source of international law. As Justice Abella explained in Nevsun, it is "the common law of the international legal system--constantly and incrementally evolving based on changing practice and acceptance": at para.

74. Customary law is evidenced by state practice that is both general, consistent, and widespread (though not necessarily universal) and motivated by a sense of legal obligation, known as opinio juris. If, and, if so, when, an international practice becomes widely accepted and understood as obligatory, it "ripens" into a customary international law norm that binds all states except those that persistently objected from the outset. There is also a subset of peremptory norms known as jus cogens from which no derogation is allowed: Nevsun at paras. 74-84; see also Using International Law in Canadian Courts at 20-22, 284. [58] State practice may be exhibited in many ways, including by treaties, state acts such as legislation and judicial decisions, and resolutions of the General Assembly touching on legal questions. Custom emerges where many states support or adhere to the practice, together with the requisite opinio juris. In some cases, this process may take years; in others, a customary rule may develop quickly if many states support or adhere to the practice in question. Unlike treaty-created rules, absent conflicting legislation, the rules and norms of customary international law are automatically incorporated into Canadian law and given direct effect without the need for legislation. Unlike foreign law, established customary rules and norms are judicially noticed without the

need for formal proof by evidence: Nevsun at paras. 71-72, 79, 86-99; Using International Law in Canadian Courts at 20-22; A Hesitant Embrace at 15-17. [59] International activity that is not explicitly law-making by nature is often referred to as "soft law" in international law rhetoric. The term is commonly used to mean a written instrument that sets out international principles and norms such as a resolution or declaration of the General Assembly, which is a deliberative, not law-making, international body. Although non-binding per se, "soft law" instruments may be evidence of existing, new, or developing international laws and provide the state practice and opinio juris required to support a claim of custom. In other words, while General Assembly resolutions typically do not create new legal rights and obligations or formally bind states on the international plane, they may be declaratory of existing customary or conventional law, as in the case of the Universal Declaration of Human Rights, U.N.G.A., 3rd Sess., U.N. Doc. A/810 (1948) G.A. Res 217A (III). In addition, non-binding international instruments may assist courts in construing domestic law: Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 at paras. 25, 30-38, 41 [9147-0732 Québec inc.]; Using International Law in Canadian Courts at 29-30; A Hesitant Embrace at 10, 18-20. [60] Binding international

instruments trigger the presumption of conformity. A common law interpretive principle, the presumption of conformity requires domestic law to be construed consistently with international law and comity, wherever possible. Its normative justification is respect for international law. In R. v. Hape, 2007 SCC 26, Justice LeBel explained the presumption this way: 53 The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result. R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 422, explains that the presumption has two aspects. First, the legislature is presumed to act in compliance with Canada's obligations as a signatory of international treaties and as a member of the international community. In deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of those obligations. The second aspect is that the legislature is presumed to comply with the values and principles of customary and conventional international law. Those values and principles form part of the context in which statutes are enacted, and courts will therefore prefer a construction that

reflects them. [Emphasis added; see also Using International Law in Canadian Courts at 166-169.] [61] The presumption of conformity applies to all internationally binding instruments, regardless of whether they have been implemented domestically. In 9147-0732 Québec inc., Justices Brown and Rowe emphasized the differing normative value and interpretive weight attributable to different international law sources and stated that the presumption of conformity is tied "to the language of Canada's international obligations or commitments": at paras. 33-35. They also stated that while courts may draw on both binding and non-binding international instruments for interpretive purposes, those courts "drawing from a non-binding instrument should be careful to explain why they are drawing on a particular source and how it is being used": at para. 38. [62] The presumption of conformity applies whether a binding international rule originates in treaty or custom. In the case of customary international law, the presumption applies to both statute and the common law. As to the latter, custom-based rules are indistinguishable from the doctrine of incorporation because, absent conflicting legislation, customary international law is considered a branch of the common law. Consistent with the presumption of conformity, the Canadian Charter of Rights and Freedoms is presumed to provide at least as

great a level of protection as those protections included in Canada's international human rights obligations: Ktunaxa Nation v. British Columbia (Forest, Lands and Natural Resource Operations), 2017 SCC 54 at para. 65; Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675 at paras. 64-67, 2004 CanLII 871 (C.A.), leave to appeal ref'd, [2004] S.C.C.A. No. 410; Using International Law in Canadian Courts at 201-202. [63] International law can also influence the application of domestic legislation. For example, in some contexts, "international law will operate as an important constraint on an administrative decision maker". In addition, "international treaties and conventions, even where they have not been implemented domestically by statute, can help to inform whether a decision was a reasonable exercise of administrative power": Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para.

114.

UNDRIP [64] UNDRIP is an international declaration of the individual and collective rights of the world's Indigenous peoples. Adopted by the General Assembly in 2007, it is the product of decades of negotiations between states and Indigenous peoples of the world. When UNDRIP was adopted, 143 states voted in favour, four states voted against, and 11 states abstained from voting. Australia, Canada, New Zealand, and the United States were the four states that voted against its adoption. All have since changed their positions and expressed their support. [65] Described by the UN Department of Economic and Social Affairs as the "most comprehensive international instrument on the rights of Indigenous Peoples", UNDRIP includes 24 preambulatory clauses and 46 articles. Article 43 provides that the rights recognized in UNDRIP "constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world". According to the UN, UNDRIP "establishes a universal framework of minimum standards" and "elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of Indigenous Peoples": United Nations, Department of Economic and Social Affairs - Social Inclusion, online: United Nations Declaration on the Rights of Indigenous Peoples

<https://social.desa.un.org/issues/indigenous-peoples/united-nations-declaration-on-the-rights-of-indigenous-peoples>. A copy of UNDRIP is attached to these reasons as "Appendix A". [66] As a General Assembly resolution, UNDRIP does not create or impose new international legal rights or obligations, nor is it formally binding as a treaty. Rather, it is a statement of internationally recognized human rights and standards. Some of its articles overlap with existing rules of treaty, custom or general principles of law of broad application, expressed in specific relation to Indigenous peoples. For example, article 3 recognizes and affirms the inherent right of Indigenous peoples to self-determination, which the International Law Commission has identified as a peremptory norm of international law and which is enshrined in binding conventions such as the International Covenant on Civil and Political Rights, 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47 and the International Covenant on Economic, Social and Cultural Rights, 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No.

46. Other UNDRIP articles elaborate and extend existing international legal rights derived from convention or custom and, to varying degrees, still others are, in whole or in part, aspirational. In other words, UNDRIP 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: Gib van Ert, "The impression of harmony: Bill C-262 and the implementation of the UNDRIP in Canadian law" (27 November 2018) 2018 CanLIIDocs 252 at 2-5; Naiomi Metallic, "Breathing Life into Our Living Tree and Strengthening Our Constitutional Roots: The Promise of the United Nations Declaration on the Rights of Indigenous Peoples Act" in Alpert et. al., eds., Rewriting the Canadian Constitution (forthcoming) at 7-9; Sylvanus Ghendazhi Barnabas, "The Legal Status of the United Nations Declaration on the Rights of Indigenous Peoples (2007) in Contemporary International Human Rights Law" (2017) 6:2 Int'l. Hum. Rts. L. Rev. 242 at 251 ["The Legal Status of the United Nations Declaration"]. [67] In its preamble, UNDRIP expresses concern that the Indigenous peoples of the world have suffered from historic injustices due to "their colonization and dispossession of their lands, territories and resources" and recognizes the "urgent need to respect and promote

the inherent rights of indigenous peoples". It also recognizes that the situations of Indigenous peoples vary throughout the world, which means that national and regional "particularities" require consideration. The final preambulatory clause proclaims UNDRIP "as a standard of achievement to be pursued in a spirit of partnership and mutual respect". [68] Several UNDRIP articles recognize and, in some respects, extend international rights, principles and standards in relation to traditional territories and resources, and provide for state obligations to consult with Indigenous peoples affected by state action. These land-related rights, obligations, principles and standards are conceptually rooted in the inherent right to self-determination recognized in article 3 and international human rights in relation to property, culture, and non-discrimination. For example, article 32(2) of UNDRIP provides: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. [69] The content and contours of the state duty to consult and the standard of free, prior and

informed consent expressed in article 32(2) as well as the extent to which it expresses binding international legal obligations or otherwise is a matter of some debate in international legal circles. That said, the existence of a state duty to consult Indigenous peoples in connection with state action affecting their lands or territories is generally accepted as a matter of international law: see Kebaowek at para. 96; The Legal Status of the United Nations Declaration at 249-251, 256; Sarah Morales, "Braiding the Incommensurable: Indigenous Legal Traditions and the Duty to Consult" in J. Borrows et. al., eds., Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples, (Montreal: McGill-Queen's University Press, 2019) at 68-73; Kevin W. Gray, "Change by Drips and Drabs or No Change at All: The Coming UNDRIP Battles in Canadian Courts" (2023) 11:2 Am. Indian L.J. 1 at 16-22. [70] Other notable UNDRIP articles for present purposes include articles 19, 38, 40 and 46. Article 19 provides that states "shall consult and cooperate in good faith with the indigenous people concerned in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them". Article 38 provides that states "in consultation and cooperation with indigenous peoples, shall take the

appropriate measures, including legislative measures, to achieve the ends of this Declaration". Article 40 affirms the right of Indigenous peoples to "access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties" and to effective remedies where there are infringements of individual and collective rights. Article 46(2) provides that the exercise of UNDRIP rights shall be subject only to those limitations "determined by law and in accordance with international human rights obligations" and strictly necessary "for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society". Federal Declaration Act [71] Canada's position on UNDRIP evolved incrementally. Traced in recent case authorities, that evolution eventually led to the passage of the Federal Declaration Act in 2021: see Montour; First Nations Families Act Reference; and Kebaowek. [72] In summary, after voting against its adoption in 2007, Canada expressed qualified support for UNDRIP in a 2010 statement, describing it as an aspirational, non-legally binding document that did not change Canadian laws: Montour at para. 1182; Kebaowek at para.

75. Then, following the 2015 call of the Truth and Reconciliation Commission of Canada for all levels of government to fully adopt and implement UNDRIP as the framework for reconciliation, in a 2016 speech to the UN Permanent Forum on Indigenous Issues, the Minister of Indigenous and Northern Affairs expressed the government's unqualified endorsement of UNDRIP. In doing so, she stated that "by adopting and implementing the Declaration, we are excited that we are breathing life into s. 35 and recognizing it now as a full box of rights for Indigenous peoples in Canada": see also First Nations Families Act Reference at paras. 13-14; Montour at paras. 1183-1185; Kebaowek at para.

75. Following a further call by the National Inquiry into Missing and Murdered Indigenous Women and Girls for implementation of various principles recognized in UNDRIP, "[i]t seems that these calls for action were heard", and Parliament enacted the Federal Declaration Act on June 21, 2021: Montour at para. 1187; First Nations Families Act Reference at paras. 4, 15; Kebaowek at para. 75. [73] The Federal Declaration Act expresses the government's commitment to "fully adopt and implement the Declaration as the framework for reconciliation". Among other things, its preamble states that the government "is committed to taking effective measures--including legislative, policy and administrative measures--at the national and international level, in consultation and cooperation with Indigenous peoples, to achieve the objectives of the Declaration" and affirms UNDRIP "as a source for the interpretation of Canadian law". Section 2(3) provides that "[n]othing in this Act is to be construed as delaying the application of the Declaration in Canadian law". Sections 4(a) and (b) state that its purposes are to "affirm the Declaration as a universal international human rights instrument with application in Canadian law" and to "provide a framework for the Government of Canada's implementation of the Declaration". Section 5 provides that the government "must, in consultation and cooperation with

Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration". Sections 6 and 7 impose specific obligations in relation to an action plan and annual reporting to Parliament. Recent Jurisprudence Regarding the Effect of the Federal Declaration Act and UNDRIP [74] As noted, in February 2024 the Supreme Court of Canada handed down judgment in the First Nations Families Act Reference. The question for determination was the constitutional validity of the Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 [First Nations Families Act]. In addressing that question, the Court made obiter statements of relevance for present purposes regarding the domestic legal effect of the Federal Declaration Act and UNDRIP. [75] In the introduction to its reasons, the Court stated that although UNDRIP is not binding as a treaty, it has been incorporated into Canada's positive law by s. 4(a) of the Federal Declaration Act: [4] While the Declaration is not binding as a treaty in Canada, it nonetheless provides that, for the purposes of its implementation, states have an obligation to take "in consultation and cooperation with indigenous peoples, the appropriate measures, including legislative measures, to achieve the ends" of the Declaration (art. 38). Recognized by Parliament as "a universal international

human rights instrument with application in Canadian law", the Declaration has been incorporated into the country's positive law by [the Federal Declaration Act], s. 4(a). This statute recognizes that the Declaration "provides a framework for reconciliation" (preamble): s. 5 of the same statute requires the Government of Canada, in consultation and cooperation with Indigenous peoples, to take "all measures necessary to ensure that the laws of Canada are consistent with the Declaration". The statute's preamble expressly provides that the implementation of the Declaration in Canada "must include concrete measures to address injustices" facing, among others, Indigenous youth and children. [5] The [First Nations Families Act] challenged in this reference is therefore directly in keeping with Canada's commitment to "implementing [UNDRIP], as the first recital of its preamble confirms. [76] The Court then reviewed the preamble and purpose provision of the First Nations Families Act. It noted that s. 8 provides for three purposes: to "affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services"; "set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children"; and "contribute to the implementation of [UNDRIP]". The Court described these purposes as a reflection

of Parliament's "openness to using three different types of legal norms that will be interwoven in this framework for reconciliation", namely, Indigenous legislative authority in relation to child and family services, national standards established by Parliament, and international standards referred to in UNDRIP. It endorsed the metaphor of braiding the three together in implementing UNDRIP and stated that Parliament's effort to do so in the First Nations Families Act "constitutes the specific framework for reconciliation when it comes to Indigenous child and family services, in the spirit of the Declaration": at paras. 7-8. [77] In discussing the context in which the First Nations Families Act was enacted, the Court repeated that in the Federal Declaration Act, Parliament recognized UNDRIP "as a universal international human rights instrument with application in Canadian law". Then it stated "[i]t is therefore through [the Federal Declaration Act] that the Declaration is incorporated into the country's domestic positive law": at para. 15 (emphasis added). It went on to note that UNDRIP calls for lawmakers to pass legislation affirming and facilitating self-government and described such measures as part of a process of "legislative reconciliation" in which legislation is enacted "to respect, promote, protect, and accommodate inherent rights through mechanisms or frameworks elaborated upon within the statute": at para.

17. It also explained that legislation of this kind "does not purport to be the source of the rights in question" and may be characterized as "recognition legislation", which "proceeds on the premise that these rights exist": First Nations Families Act Reference at paras. 16-17, quoting N.S.W. Metallic, "Aboriginal Rights, Legislative Reconciliation, and Constitutionalism" (2023), 27:2 Rev. Const. Stud. 1 at 5; see also Kebaowek at paras. 76-78. [78] I understand the Court's statement that the Federal Declaration Act incorporated UNDRIP into positive law and its reference to Canada's commitment to implement UNDRIP to indicate that, consistent with our dualist system, Parliament enacted the Federal Declaration Act to incorporate (i.e., integrate) UNDRIP into Canadian law and thus give domestic legal effect to Canada's obligations and commitments in relation to UNDRIP by providing a foundational structure for putting them into action. As discussed below, in my view this signals that UNDRIP should be applied as a weighty source for the interpretation of Canadian law in accordance with the presumption of conformity, with due regard to the extent to which the relevant articles express binding international legal rights, obligations, or general principles, minimum standards, or aspirations. [79] The Court went on in the First Nations Families Act Reference to address the legal

effects of certain provisions of the First Nations Families Act that affirm the inherent right to self-government. It stated that Parliament may bind the Crown through such affirmations, and, subject to constitutional imperatives, constrain and limit government actors, thus shaping the exercise of public powers: at paras. 19, 56-58. In particular, the Court stated, "[b]y enacting a binding affirmation, Parliament has bound the federal government to the position it has affirmed as a matter of statutory positive law" as "government actors are bound by laws that create, structure and limit their powers": at para.

59. Specifically, the Court explained, while Parliament cannot bind the courts or the provinces with respect to the definitive interpretation to be given to s. 35, the affirmations in the First Nations Families Act regarding self-government require the federal government "to act in accordance with its position that this right of self-government was recognized" and to prevent it from asserting "in any proceedings or discussion, that there is no Indigenous right of self-government in relation to child and family services": at paras. 60-62. [80] Moreover, the Court stated, the statutory affirmations of the right of self-government could have other legal effects by requiring the Crown "to act as though the principle of the honour of the Crown is engaged": at para.

63. It explained that Parliament had "intentionally embarked on a particular path to reconciliation" which required the Crown "to act in accordance with the legislative affirmation that the inherent right of self-government has constitutional status": at para.

64. It also explained that this "implies that the Crown must take a broad approach to the interpretation of this right and must act diligently to implement it", the affirmation "represents a promise of rights recognition", and "[i]t is always assumed that the Crown intends to fulfil its promises": at para. 66. [81] As discussed below, the Court's observations on the legal effects of the statutory affirmation in the First Nations Families Act assist in illuminating the legal effects of the affirmation in the provincial Declaration Act, namely, that UNDRIP applies to the laws of British Columbia: see also G. van Ert, "Three Good Reasons Why UNDRIP Can't Be Law - And One Good Reason Why It Can" (2017) 75(1) Advocate (Vancouver Bar Association) 29 at 31-32 ["Three Good Reasons"]. [82] Shortly after releasing the First Nations Families Act Reference, the Supreme Court of Canada touched briefly on the Federal Declaration Act and UNDRIP again in Dickson. The central issues in Dickson concerned the application of the Charter to a self-governing Indigenous community and the proper interpretation of s. 25 of the Charter. In discussing the purpose of s. 25 of the Charter, Justices Kasirer and Jamal for the majority observed that their interpretation was "consonant with [UNDRIP], as brought into Canadian law by the [Federal Declaration Act]", and they pointed specifically to article 34 of UNDRIP: at para.

117. For their part, Justices Martin and O'Bonsawin for the minority noted that binding international instruments carry interpretive weight, stated that "UNDRIP is binding on Canada and therefore triggers the presumption of conformity", and ultimately concluded that a holistic reading of UNDRIP, including articles 2, 4, 5, 9, 20 and 34, supported their contrary interpretation of s. 25 of the Charter: at paras. 317-319. [83] Similarly, in Montour and Kebaowek the Court concluded that UNDRIP engages the interpretive presumption of conformity: Montour at paras. 1194, 1201-1204, 1287; Kebaowek at paras. 80-86. I understand that both decisions are under appeal, with judgment currently on reserve in Kebaowek. Declaration Act [84] As noted, British Columbia was the first Canadian jurisdiction to enact a statute to incorporate UNDRIP into domestic law. In force since November 2019, ss. 1(1) and (4), 2, and 3 of the Declaration Act provide: Interpretation 1(1) In this Act: "Declaration" means the United Nations Declaration on the Rights of Indigenous Peoples set out in the Schedule; (4) Nothing in this Act is to be construed as delaying the application of the Declaration to the laws of British Columbia. Purposes of Act 2 The purposes of this Act are as follows: (a) to affirm the application of the Declaration to the laws of British Columbia; (b) to contribute to the implementation of

the Declaration; (c) to support the affirmation of, and develop relationships with, Indigenous governing bodies. Measures to align laws with Declaration 3 In consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration. [85] Like its federal analogue, in addition to obliging the government to consult, cooperate and take necessary measures to ensure that British Columbia laws are consistent with UNDRIP, the Declaration Act imposes other statutory obligations. Specifically, s. 4 provides that, in consultation and cooperation with the Indigenous peoples of the province, the government must "prepare and implement an action plan to achieve the objectives of the Declaration". Section 5 requires the Minister, in consultation and cooperation with Indigenous peoples, to prepare and deliver annual reports to the Legislative Assembly regarding progress made "towards implementing the measures referred to in section 3 and achieving the goals in the action plan". [86] When the bill was before the Legislature, the Minister of Indigenous Relations and Reconciliation made several statements regarding the effect of the Declaration Act. For example, in introducing the bill, he stated that "through this legislation, we are recognizing the human rights of

Indigenous peoples in law" and he described the new law as "a critical step towards true and lasting reconciliation" which, if passed, would make British Columbia "the first province to bring these internationally recognized standards into provincial law". Over the course of the debate that followed, among other things, he also stated: [The Declaration Act] acknowledges the aspects of [UNDRIP] that already reflect international conventions or international customary law and that already apply to the laws of British Columbia. While this bill does not, in and of itself, give [UNDRIP] legal force and effect, it does not delay or affect that current application of [UNDRIP]. What we're accomplishing here is recognizing the human rights of Indigenous peoples into the law in this province. The legislation will give us a path forward as government. [ ] [The Declaration Act] does not bring [UNDRIP] into legal force and effect. [ ] Upon passage, there is no immediate effect other than as an interpretive aid on laws. It does not give legal force and effect. [The Declaration Act] provides a process, a framework, for government to move forward, which will be covered in sections 3, 4 and 5. [See British Columbia, Official Report of Debates (Hansard), 41st. Parl., 4th. Sess., No. 286 (30 October 2019) at 10373; British Columbia, Official Report of Debates (Hansard), 41st. Parl., 4th. Sess.,

No. 291 (19 November 2019) at 10520; British Columbia, Official Report of Debates (Hansard), 41st. Parl., 4th. Sess., No. 292 (19 November 2019) at 10558, 10567.] [87] Since the Declaration Act was enacted, UNDRIP-guided law reform in consultation and cooperation with Indigenous peoples has been a significant component of the provincial legislative agenda. For example, as well as amending several other statutes, the Legislature amended the Adoption Act, R.S.B.C. 1996, c. 5 and the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, to be interpreted in accordance with the self-government and self-determination rights recognized by UNDRIP. It also amended the Human Rights Code, R.S.B.C. 1996, c. 210, to add "Indigenous identity" as a prohibited ground of discrimination. Interpretation Act [88] As part of the law reform process contemplated in the Declaration Act, the Legislature amended the Interpretation Act in November 2021 by adding s. 8.1 to address both s. 35 and UNDRIP: Section 35 of Constitution Act, 1982 and Declaration 8.1(1) In this section: "Declaration" has the same meaning as in the Declaration on the Rights of Indigenous Peoples Act; "Indigenous peoples" has the same meaning as in the Declaration on the Rights of Indigenous Peoples Act; "regulation" has the same meaning as in the Regulations Act. (2) For certainty, every enactment must be construed as

upholding and not abrogating or derogating from the aboriginal and treaty rights of Indigenous peoples as recognized and affirmed by section 35 of the Constitution Act, 1982. (3) Every Act and regulation must be construed as being consistent with the Declaration. [89] The modern principle of statutory interpretation applies to s. 8.1, as it does to all statutory provisions. Pursuant to the modern principle, the words of a provision must be read "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Vavilov at para. 117, citing Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, 1998 CanLII 837. [90] Section 8.1 deals with two separate and distinct subjects: s. 35 of the Constitution Act and UNDRIP. Its instructions with respect to those subjects are not the same. Specifically, s. 8.1(2) mandates interpretations that uphold and do not derogate from Aboriginal and treaty rights, which are subject to constitutional protection in Canada. In contrast, s. 8.1(3) mandates interpretations that are consistent with UNDRIP, which recognizes, and in some respects extends, international Indigenous rights, and articulates minimum standards and aspirations: see Nigel Bankes, "The Legal Status of UNDRIP in British Columbia: Gitxaala v. British Columbia (Chief Gold

Commissioner)" (5 October 2023), online: ABlawg, <http://ablawg.ca> at 4. [91] Subsections 8.1(2) and (3) must be considered and applied separately in the interpretive process. However, the judge conflated them when analyzing the constitutional validity of the Mineral Tenure Act (paras. 409-418). In addition, although he recognized that s. 8.1 acts as an interpretive aid during the entire interpretive process (para. 417), he appears to have considered two or more possibly valid interpretations to be necessary for s. 8.1 to be engaged (para. 416). There is no such requirement. Section 8.1 applies generally and infuses the entire interpretive process, regardless of whether multiple reasonable interpretations of a statutory provision are possible. [92] Considered in the light of its text, context, and purpose, in my view s. 8.1(3) requires that British Columbia's laws be interpreted to conform with the binding international rights, obligations and principles recognized in UNDRIP and to generally harmonize with the international standards and extended rules that it articulates, wherever possible. In other words, from a functional perspective, s. 8.1(3) imposes a rebuttable presumption of consistency between British Columbia statutes and UNDRIP, akin to the common law presumption of conformity. [93] I reach this conclusion for the following reasons. [94] First, the language of s.

8.1(3) is imperative: British Columbia enactments must be construed as being consistent with UNDRIP. However, in keeping with the modern principle, s. 8.1(3) is to be read together and harmoniously with the other Interpretation Act provisions, including s. 2(1), which states that every provision of the Act applies to every enactment "unless a contrary intention appears in this Act or in the enactment" (emphasis added). In the face of a clear contrary intention, an UNDRIP-consistent interpretation will not be possible. Reading the combined effect of ss. 8.1(3) and 2(1) as imposing a rebuttable presumption of consistency accommodates this reality. [95] Second, as noted, s. 8.1 was enacted approximately two years after the Declaration Act, which includes contributing to the implementation of UNDRIP as a purpose and imposes a duty on government to take measures to ensure that British Columbia laws are consistent with UNDRIP. Since its enactment, the Legislature has passed various measures aimed at aligning provincial statutes with UNDRIP. Reading s. 8.1(3) as imposing a rebuttable presumption of consistency fits within this pattern of legislative reform. [96] Third, the ordinary meaning of "consistent", expressed relationally, is that two or more things are marked by conformity, adherence or harmony in relation to one another: see generally, Oxford English Dictionary (online) sub

verdo "consistent"; Cambridge Dictionary (online) sub verdo "consistent"; Merriam-Webster Dictionary (online) sub verdo "consistent". The manifest purpose of s. 8.1(3) is to promote consistency between British Columbia enactments, on the one hand, and, on the other, UNDRIP, and thus to contribute to domestic implementation of UNDRIP and to further the goal of reconciliation. To give effect to s. 8.1(3) when construing an enactment, courts should engage directly with relevant UNDRIP articles in attempting to achieve interpretive consistency, wherever possible. For example, in interpreting the Mineral Tenure Act and the Declaration Act it was incumbent on the judge to take specific account of relevant articles with a view to achieving UNDRIP-consistent interpretations, if possible, or acknowledging the inconsistency, if not. [97] Focusing attention on relevant UNDRIP articles is essential to any determination of UNDRIP consistency. Moreover, the requirement of consistency means that UNDRIP must be understood and addressed on its own terms, namely, as an international legal instrument of rights-recognition, standard-setting, and goal-pursuing, as opposed to law-creation. Depending on the interpretive issue in question, the court may need to assess the extent to which a relevant article expresses a binding international right, obligation or general principle, a minimum standard, or

an aspiration. This is because: i. UNDRIP is not, and does not purport to be, law-creating (it does not create rights by recognizing them); ii. UNDRIP both recognizes existing rights and extends them, without distinction; and iii. binding rights and obligations (specific legal entitlements and duties), general principles (guiding truths or values), minimum standards (levels of quality or measurements), and aspirations (goals) differ. In my view, the same is true of the related demands of consistency. [98] In other words, an assessment of the international legal status of an Indigenous right expressed as such in UNDRIP may be required to give effect to s. 8.1(3) in the interpretive process. Insofar as UNDRIP expresses a binding international right, obligation or general principle, to be consistent, an enactment should clearly conform, with due regard for local particularities. On the other hand, insofar as UNDRIP expresses an internationally recognized minimum standard or an aspiration, the margin of appreciation is greater, and general harmony will suffice for consistency to be achieved. [99] The jurisprudential implications of s. 8.1(3) for domestic legal practitioners are significant. As Professors Brunnée and Toope observed in 2002, Canadian courts and counsel are not typically steeped in international law, and they have tended to approach and apply it hesitantly. At the

hearing of the appeal, counsel made similar observations. However, the fact is that the Legislature has chosen to incorporate a complex, multi-faceted international instrument into domestic legislation, and, if possible, provincial enactments must now be interpreted consistently with that instrument in all its complexity. [100] The rights, obligations, principles and standards expressed in UNDRIP are rooted in international law. In my view, consideration of their source, nature, and reach cannot be avoided or side-stepped in the interpretive exercise mandated by s. 8.1(3), either on the basis that UNDRIP is not itself a binding instrument (as the respondents suggest) or that every article of UNDRIP describes "rights" in the sense that term is used in domestic law (as the appellants suggest). I would not accede to either position, neither of which respond to the complex and varied nature of UNDRIP. As I see it, to determine whether a proposed interpretation of an enactment is consistent with UNDRIP, depending on the issue, it may be necessary to analyse the source, nature, and reach of the relevant right, obligation, standard, or goal expressed as such in its article(s). This, in turn, will likely lead to increased domestic familiarity and facility with international law. Discussion What is the Applicable Standard of Review? [101] The parties agree that the applicable standard

of review is correctness. The issues that arise on appeal pertain to statutory interpretation, justiciability, and the availability of declaratory relief. These are questions of law subject to correctness appellate review: Housen v. Nikolaisen, 2002 SCC 33 at paras. 8-9; West Moberly First Nations v. British Columbia, 2020 BCCA 138 at para. 82. [102] On appeal from a judicial review decision the question is whether the reviewing judge identified the appropriate review standard and applied it correctly: Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para.

10. According to the provincial respondents, applying this framework is complicated as the judge only discussed the standard of review in relation to the s. 35 duty to consult and not the Declaration Act and UNDRIP issues. They say those issues do not arise from an administrative decision to which a review standard could apply. Nevertheless, they say, correctness review is appropriate either because the judge made original findings outside the review of an administrative decision or because reasonableness review is displaced by the nature of the issues for determination. [103] In my view, the Declaration Act and UNDRIP issues for determination do arise from an administrative decision. The administrative decision in question was the CGC's discretionary decision to operate a system for automatic pre-consultation registration of mineral claims, which engaged issues in relation to s. 35 and the Declaration Act and UNDRIP. Although the judge characterized the decision as "a series of non-decisions", he properly treated it as a decision, identified the appropriate review standard (correctness), and accepted the provincial respondents' position that he should adjudicate the claims raised in the petitions, in full, in the context of the judicial review proceeding. Given the general, centrally important, and broadly applicable nature of the legal questions in issue, and their potential

relationship with s. 35 of the Constitution Act, reasonableness review is displaced in accordance with the rule of law exceptions discussed in Vavilov (at paras. 53-64). The issue on appeal is whether the judge answered them correctly. What is the Proper Scope of the Appeal? Provincial Respondents and Privateer Gold [104] The provincial respondents submit that the influence of UNDRIP on the development of the duty to consult does not arise on the appeal because they have not appealed the s. 35 declarations. They say the arguments advanced by Ehattesaht on the legal effect of the Declaration Act and UNDRIP challenge the judge's reasoning regarding the duty to consult, not his order refusing a declaration of inconsistency, and are outside the scope of the appeal. [105] According to the provincial respondents, Ehattesaht's main arguments seek to elide UNDRIP rights with s. 35 and the duty to consult by proposing the application of UNDRIP to existing s. 35 doctrine. They say that such arguments raise significant, complex, and contentious legal questions, and drive toward constitutionalizing UNDRIP rights. In their submission, although, as a relevant international law instrument, UNDRIP is capable of influencing the development of the common law duty to consult, this statutory appeal is not the forum in which to address its impact on that development, nor is it this Court's role to

conduct a roving commission to delineate the potential application of UNDRIP on all British Columbia laws. They submit that is what Ehattesaht seek by requesting a declaration that UNDRIP applies to all British Columbia laws, including the duty to consult. Moreover, they say, some of the interveners' arguments are also outside the scope of the appeal and the bounds of their roles as interveners. [106] Privateer Gold submits the appeal is moot because the essential question of whether the Crown had a duty to consult was resolved in the appellants' favour and the provincial respondents have not appealed the s. 35 declaration. Accordingly, it says, there is no live controversy among the parties and no practical benefit to proceeding with the appeal. Appellants and Interveners [107] Ehattesaht respond that their petition squarely raised a claim to consultation based on their Indigenous rights recognized in the Declaration Act and UNDRIP. However, the judge dismissed that claim, finding UNDRIP is not implemented by the Declaration Act, ignoring their consultation rights in article 32(2) of UNDRIP, and refusing their request for a declaration that the grant of mineral tenures without consultation is inconsistent with the Declaration Act and UNDRIP. Ehattesaht submit the judge's finding of a s. 35 duty to consult does not preclude them from appealing the dismissal of their claim in

relation to the Declaration Act and UNDRIP, nor from making arguments in support of related declaratory relief. [108] In support of their position, Ehattesaht submit that their argument does not seek separately to constitutionalize UNDRIP rights. Rather, they say, their argument is that the province has obliged itself through its promises in the Declaration Act, government publications, and public statements to recognize UNDRIP rights as existing and to implement them, at least in the forum of present significance, namely, consultation. According to Ehattesaht, the Crown must adapt its consultative duties and practices accordingly. However, Ehattesaht do not ask this Court to determine the nature or extent of the appropriate adaptation on this appeal. Rather, they submit, this Court should simply affirm their entitlement to raise their inherent Indigenous rights recognized in article 32(2) and have them addressed in consultation. In their submission, this would represent a modest, but necessary, shift in the law, while leaving the content of the necessary adaptation as a matter for consultation and cooperation between the parties. Accordingly, they say, their arguments fall within the scope of the appeal. [109] The interveners submit that, properly understood, their arguments also fall within the scope of the appeal and the bounds of their intervener roles. Analysis [110] The

provincial respondents' concern with the breadth of the relief initially sought by Ehattesaht is well-founded. However, as the hearing progressed both appellants narrowed their arguments and the relief sought and focused on the alleged inconsistency between the Mineral Claims Regime and article 32(2) of UNDRIP. To the extent they may continue to overreach, their arguments can be addressed in the analysis of the substance of the appeal. The same is true of the interveners' arguments, which for the most part helpfully contextualized and illuminated some of the complex issues for consideration, including relevant matters of conventional and customary international law. [111] I agree with the provincial respondents that our determination of the legal effect of the Declaration Act and UNDRIP must be grounded in a review of the order under appeal. However, I agree with Ehattesaht that they brought a claim for a declaration of inconsistency between the Mineral Claims Regime and their Indigenous rights recognized in the Declaration Act and UNDRIP, the judge dismissed that claim, and his order doing so is under appeal. Moreover, although Ehattesaht clearly disagree with aspects of the judge's reasoning in connection with the s. 35 duty to consult, their arguments are not advanced as a direct challenge to that reasoning or a present attempt to merge UNDRIP rights with existing s. 35

doctrine. Rather, I understand Ehattesaht to argue that the Crown's consultative duties in relation to s. 35 and article 32(2) of UNDRIP differ and that in light of the Declaration Act's affirmation that UNDRIP applies to British Columbia laws their asserted Indigenous rights recognized in UNDRIP should be addressed and accounted for in consultation. In my view, that argument does not exceed the scope of the appeal, nor is the appeal moot. What is the Effect of the Declaration Act and UNDRIP on the Laws of British Columbia? Appellants [112] Gitxaala contend that ss. 1(4), 2(a) and 3 of the Declaration Act incorporate UNDRIP into British Columbia law by requiring their alignment, interpretively and through the imposition of a statutory duty on government to take measures to ensure their consistency and to consult and cooperate regarding those measures. They submit that the presumption of conformity applies to all British Columbia laws based on s. 8.1(3) of the Interpretation Act, ss. 2(3) and 4(a) of the Federal Declaration Act, and ss. 1(4) and 2(a) of the Declaration Act. Specifically, they say, while UNDRIP is not an international convention and thus cannot be ratified, the Federal Declaration Act and the Declaration Act express a commitment to its implementation sufficient to give UNDRIP "the same standing" as a ratified convention such that it engages the presumption of

conformity, and therefore British Columbia laws must be interpreted to align with UNDRIP rights. In addition, Gitxaala say, the Interpretation Act imposes a similar statutory presumption of consistency. [113] In support of their submission, Gitxaala argue that purpose statements such as s. 4(a) of the Federal Declaration Act and s. 2(a) of the Declaration Act are well-established as interpretive laws of a procedural nature. They say that, read together, ss. 2(a), 2(b) and 3 of the Declaration Act disclose its overarching purpose, which is to align British Columbia laws with UNDRIP. They also emphasize that, when the Minister introduced the Declaration Act, he stated that the government was affirming the human rights of Indigenous peoples and acknowledged that UNDRIP would have immediate effect on provincial laws as an interpretive aid. However, by characterizing UNDRIP as a mere "non-binding international instrument" and failing to apply the presumption of conformity, Gitxaala say the judge rendered its application to British Columbia law, as affirmed in s. 2(a), meaningless for practical interpretive purposes and thus violated the presumption that the Legislature does not legislate in vain. [114] Gitxaala go on to submit that, purposively interpreted, s. 2(a) implements and applies the whole of UNDRIP to British Columbia laws without distinguishing which of the Indigenous

rights recognized in UNDRIP are reflected in ratified conventions or custom. Accordingly, they say, the presumption of conformity applies uniformly to all Indigenous rights recognized in UNDRIP (although they do not address the fact that UNDRIP is an amalgam of recognized rights, minimum standards, and aspirations). They submit further that by referring to "British Columbia laws" without distinguishing between statutory and common law, s. 2(a) extends the presumption of conformity to the common law, including the common law of justiciability. [115] Ehattesaht endorse Gitxaala's submissions. They say the judge erred by casting the Declaration Act as a commitment to take future action to implement UNDRIP with no present legal effect. In their submission, UNDRIP was incorporated into domestic positive law with immediate effect by the Federal Declaration Act and the Declaration Act, albeit without providing all the mechanisms by which UNDRIP rights will be implemented over time in different contexts. Nevertheless, Ehattesaht say the Declaration Act is statutory recognition that the Indigenous rights recognized in UNDRIP exist and apply now in British Columbia, which recognition engages the honour of the Crown and creates an opening for their UNDRIP rights to be addressed in the consultation forum. [116] According to Ehattesaht, UNDRIP should inform the interpretation of the duty to

consult that arises with provincial decision-making and conduct under the Mineral Tenure Act. In their submission, the Declaration is directly relevant to their claim that the Mineral Claims Regime is inconsistent with their Aboriginal and asserted Indigenous rights, and they are entitled to raise both in consultation with the Crown. They argue that the Declaration Act is intended to recognize UNDRIP rights and standards as law in British Columbia, shift the province's approach to Crown-Indigenous relations to one of rights-recognition, and make UNDRIP part of British Columbia's normative order. They also argue that s. 2(a) of the Declaration Act should be interpreted in light of its incorporation of UNDRIP as a Schedule to the Declaration Act, which makes UNDRIP part of a provincial statute. In addition, Ehattesaht say the legislation should be interpreted bearing in mind that both Canada and British Columbia have proclaimed support for implementing UNDRIP, both have affirmed that UNDRIP rights are fundamental international human rights, and both have agreed UNDRIP is a framework for reconciliation. [117] In support of their argument, Ehattesaht emphasize that the inherent Indigenous rights recognized in the Declaration Act and UNDRIP are not necessarily the same as s. 35 rights, although there are obvious similarities and overlay. In their submission, their inherent

Indigenous rights recognized in UNDRIP should inform the interpretation and application of s. 35 rights and the common law duty to consult. For example, they say, the duty to consult can and should evolve to address adverse impacts to asserted Indigenous rights such as governance rights and the free, prior and informed consent standard in article 32(2) of UNDRIP. However, the reality is that final resolution of s. 35 claims is often protracted, costly, and out of foreseeable reach, and, given that reality, adopting an UNDRIP-informed approach to consultation now can play an important and immediate role in furthering the goal of reconciliation while the long-term law reform project unfolds. Provincial Respondents [118] The provincial respondents contend that the judge correctly found UNDRIP remains a non-binding international instrument that is not implemented in British Columbia law by s. 2(a) of the Declaration Act. It follows, they say, that UNDRIP does not engage the presumption of conformity. In their submission, while some UNDRIP provisions may overlap with binding customary and conventional international law, that does not make UNDRIP itself binding internationally, which is the normative underpinning for the presumption. Nor, they say, do the words of s. 2(a) of the Declaration Act, read in their context and in their grammatical and ordinary sense, harmoniously with the

scheme of the Act, make UNDRIP binding as a matter of domestic law. [119] In the provincial respondents' submission, s. 2(a) is a purpose statement that guides the interpretation of the substantive provisions of the Declaration Act but does not declare its legal effect. Accordingly, they contend that, as the judge concluded, s. 2(a) does not implement UNDRIP in British Columbia law. In support, they point to the difference between the broad language of s. 2(a) and more direct language in provincial statutes such as the International Sale of Goods Act, R.S.B.C. 1996, c. 236 and the Foreign Arbitral Awards Act, R.S.B.C. 1996, c. 154, which implements international instruments like the UN Convention on Contracts for the International Sale of Goods and the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards respectively. Those statutes state the "Convention applies in British Columbia". They also note s. 2(b) provides that a purpose of the Declaration Act is to contribute to the implementation of UNDRIP, which they say signals that the Declaration Act does not immediately implement UNDRIP into the law of British Columbia. Nevertheless, they acknowledge that the combined effect of ss. 1(4) and 2(a) of the Declaration Act and s. 8.1(3) of the Interpretation Act produces a similar interpretive result to the application of the common law presumption of

conformity, and they say that, despite its non-binding status, UNDRIP should be accorded some interpretive weight. [120] The provincial respondents go on to say that the judge's interpretation of the Declaration Act aligns with the Court's analysis in the First Nations Families Act Reference. Specifically, they submit, both the judge here and the Supreme Court of Canada in the First Nations Families Act Reference found that the Act in question (the Declaration Act and the Federal Declaration Act, respectively) does not implement UNDRIP immediately; rather, those Acts each create a framework for its implementation and require government to consult and cooperate to "braid together" the different legal norms. They submit further that Ehattesaht's theory that the Declaration Act partially implements UNDRIP by "rights recognition" and "application", with immediate legal effect, is unpersuasive. [121] In support of their position, the provincial respondents emphasize that determining the effect of the Schedule to an enactment involves determining legislative intent. In their submission, the Declaration Act was manifestly not intended to implement UNDRIP in British Columbia law immediately. They also submit that a general approval provision does not on its own implement treaty provisions, confirmation of a scheduled agreement, standing alone, is generally insufficient to support the

conclusion that it constitutes part of a statute, and the ambiguous ministerial statements relied on by the appellants suggest only that UNDRIP applies immediately where it reflects conventional or customary international law, a proposition with which they agree. However, they do not agree that the Declaration Act and UNDRIP are deprived of any legal effect other than in a forward-looking sense by the judge's interpretation of s. 2(a) of the Declaration Act in light of the significant impacts the s. 3 alignment process has already had, and will continue to have, as the legislative reform process unfolds. They also repeat that the influence of UNDRIP on the s. 35 duty to consult is not at issue on the appeal and they characterize Ehattesaht's "recognition" argument as solely relevant to that issue. Analysis [122] The legal effects of a law are discerned from its provisions by asking "how the legislation as a whole affects the rights and liabilities of those subject to its terms": References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para. 70, citing R. v. Morgentaler, [1993] 3 S.C.R. 463 at 482, 1993 CanLII 74; First Nations Families Act Reference at para.

54. As noted, the words of a statutory provision must be read in context, in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislator: Vavilov at para. 117. [123] Wherever possible, courts strive to give meaning and effect to every word in an enactment and reject constructions that would leave any part of its language without effect. As directed by s. 8 of the Interpretation Act, courts should construe an enactment as remedial and give it "such fair, large and liberal construction as best ensures the attainment of its objects": see also Greater Vancouver Regional District v. British Columbia (Attorney General), 2011 BCCA 345 at para. 1. [124] In the discussion that follows, I will address the presumption of conformity in relation to UNDRIP, the interpretation of the Declaration Act, and the effect, if any, of the Declaration Act on the honour of the Crown in relation to the common law duty to consult. Presumption of Conformity [125] For the reasons already provided, I agree with Gitxaala that s. 8.1(3) of the Interpretation Act imposes a statutory rebuttable presumption of consistency between British Columbia enactments and UNDRIP, which is functionally akin to the presumption of conformity. I also conclude that UNDRIP engages the common law interpretive presumption of conformity arising out of

Canada's obligations and solemn commitment as a member of the international community to apply and implement UNDRIP in domestic law. [126] As I have explained, the common law presumption of conformity is a rule of judicial policy that requires domestic laws to be construed consistently with international law and comity, wherever possible. To repeat, the presumption applies whether a binding international rule originates in treaty or custom, and regardless of whether the international rule has been implemented domestically. Tied "to the language of Canada's international obligations or commitments", the presumption has two aspects: first, the Legislature is presumed to act in compliance with Canada's treaty obligations and as a member of the international community; second, the Legislature is presumed to comply with the values and principles of customary and conventional law: 9147-0732 Québec inc. at paras. 33-35; Hape at para. 60. [127] As I have also explained, the Court stated in the First Nations Families Act Reference that "[w]hile the Declaration is not binding as a treaty in Canada" (emphasis added), in s. 4(a) of the Federal Declaration Act (a purpose statement) Parliament recognized the Declaration as "a universal international human rights instrument with application in Canadian law": at para.

4. Then it stated "[i]t is therefore through [the Federal Declaration Act] that the Declaration is incorporated into the country's domestic positive law": at para. 15 (emphasis added). It also characterized the First Nations Families Act as a concrete step taken in keeping with Canada's commitment to implement UNDRIP and part of the overall process of legislative reconciliation: at paras. 5-6, 21, 45. [128] As I read the reasons, the Court was acknowledging in the First Nations Families Act Reference that, while UNDRIP is not formally binding per se, it aggregates several binding international rules, obligations, and principles of broad application in specific relation to Indigenous peoples, together with internationally recognized standards and aspirations. It was also acknowledging that Canada could not express its consent to be bound by the rights, obligations, principles, and standards stated cumulatively in UNDRIP through ratification, as with a treaty, which, unlike UNDRIP, creates the binding rules that it articulates. However, the Court clarified that by enacting the Federal Declaration Act Parliament recognized Canada's international obligations and solemn commitment to apply and implement those cumulatively stated rights, obligations, principles, and standards, as previously expressed by the federal executive, and, consistent with our dualist system, incorporated

UNDRIP into domestic law by legislative action. [129] In my view, it follows that, wherever relevant, UNDRIP should be applied as a weighty source for the interpretation of Canadian law in accordance with the presumption of conformity, with due regard for the extent to which a relevant article expresses a binding international rule or general principle, minimum standard, or aspiration. In other words, unlike a typical international "soft law" instrument, UNDRIP should not be treated as a mere "non-binding international instrument" to which modest, moderate, or significant weight, or no weight at all, may be optionally ascribed in the interpretive exercise. As I see it, this interpretive mandate is justified in light of the widespread international support for UNDRIP, Canada's unqualified international expression of commitment to its application and implementation, and, given Parliament's enactment of the Federal Declaration Act, attenuated concern with safeguarding the respective roles of the executive and legislative branches and protecting parliamentary sovereignty that normally constrain application of the presumption. [130] That said, as previously discussed, determining whether a domestic law conforms with UNDRIP may require assessment of the extent to which a relevant article states a binding rule or general principle, a minimum standard, or an aspiration. For example,

determining whether a law conforms with article 32(2) of UNDRIP may require assessment of the extent to which article 32(2) expresses binding international rules and principles (possibly, a state duty to consult, the good faith requirement) or standards, extended rules, or aspirations (possibly, the need for and meaning of free, prior and informed consent). Accordingly, contrary to the appellants' submission, in my view the presumption of conformity does not apply in the same way to all aspects of every Indigenous right expressed as such in UNDRIP. [131] The judge did not apply the presumption of conformity in construing the Mineral Tenure Act or the Declaration Act, either under the common law or s. 8.1(3) of the Interpretation Act. In my view, this was an error. I do not accept the provincial respondents' submission that his analysis aligns with the First Nations Families Act Reference. Nor do I accept that the Court found in that case that the Federal Declaration Act did not immediately implement UNDRIP in any way. Given the magnitude of the task, implementing UNDRIP will obviously be a complex, long-term process that is not amenable to all-or-nothing legislative action. As I read the First Nations Families Act Reference, the Court was fully alive to that reality. [132] It seems to me the Court viewed Parliament's enactment of the Federal Declaration Act as a preliminary,

but significant, step in the long-term process of implementing UNDRIP domestically. That step included express recognition that UNDRIP applies in Canadian law, legislative incorporation of UNDRIP into the country's positive law, and the imposition of a statutory duty to consult, cooperate, and take measures to align domestic laws with UNDRIP, together with related planning and reporting obligations. The Court also viewed the First Nations Families Act as another, more specific, step in the same process. It also seems to me that, in substance, both the majority and minority in Dickson applied the common law presumption of conformity in their respective interpretations of s. 25 of the Charter, albeit with varying degrees of explicitness and detail and with differing results. Interpretation of the Declaration Act [133] Determining the effect of the Declaration Act on British Columbia laws is a matter of statutory interpretation. Pursuant to s. 8.1(3) of the Interpretation Act, its provisions must be construed as being consistent with UNDRIP, if possible. The common law presumption of conformity also applies. As noted, the common law presumption is based on a rule of judicial policy applicable to both statute and the common law regardless of whether an international instrument has been implemented domestically, and, absent contrary legislation, custom-based rules are automatically

incorporated into domestic common law. It follows that determining the effect of the Declaration Act on British Columbia laws is not a matter of asking whether s. 2 engages the presumption of conformity. Rather, it is a matter of asking whether s. 2, properly interpreted, implements the rights, obligations, principles, and standards expressed in UNDRIP, and, if so, how and to what extent. [134] As discussed, the extent to which a domestic statute implements an international instrument depends on the circumstances, such as the text of the statute and the specificity of the instrument. It is fundamentally a matter of legislative intent. [135] To repeat, ss. 1(1) and (4), 2(a) and (b) and 3 of the Declaration Act provide: Interpretation 1(1) In this Act: "Declaration" means the United Nations Declaration on the Rights of Indigenous Peoples set out in the Schedule; (4) Nothing in this Act is to be construed as delaying the application of the Declaration to the laws of British Columbia. Purposes of Act 2 The purposes of this Act are as follows: (a) to affirm the application of the Declaration to the laws of British Columbia; (b) to contribute to the implementation of the Declaration Measures to align laws with Declaration 3 In consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration. [136] The judge asked whether s. 2(a) of the Declaration Act implements UNDRIP in the sense that it gives UNDRIP "the same legal effect as a provincial or federal enactment" such that UNDRIP "now has the full force and effect of law in British Columbia": at para.

450. In other words, he asked whether s. 2(a) was intended "to be a rights-creating, substantive provision": at para.

461. In doing so, he was responding to BCHRC's argument and approaching the implementation question as an essentially "all-or-nothing" proposition that hinged on the function of s. 2(a) within the Declaration Act. In answering that question, he looked to case authorities and legislation involving the domestic implementation of treaties, which, unlike UNDRIP, create substantive legal rights. [137] The unique nature of UNDRIP, the magnitude of the task of implementing it, and the need to read the provisions of the Declaration Act together and harmoniously with its scheme and objects mean that interpreting s. 2(a) and its effect on British Columbia laws does not lend itself to that form of all-or-nothing analysis. Rather, to ascertain the extent, if any, to which the Declaration Act implements UNDRIP, ss. 1(1) and (4), 2(a) and (b) and 3 should be considered both individually and together, with UNDRIP's nature and varied attributes borne firmly in mind. [138] Under the heading "Interpretation", s. 1(1) of the Declaration Act defines "Declaration" by reference to a Schedule that sets out UNDRIP in its entirety. The ordinary meaning of the words of s. 1(1) and the fact that UNDRIP is appended do not suggest, on their own, a legislative intent to implement UNDRIP as substantive law in British Columbia. In appending the Declaration as a Schedule, s. 1(1) simply clarifies that any

reference to UNDRIP is a reference to UNDRIP as a whole. [139] Section 1(4) of the Declaration Act also comes under the heading "Interpretation". It provides that nothing in the Declaration Act is to be construed as delaying the application of UNDRIP to the laws of British Columbia. The word "application" ordinarily means the way in which something is used, and "to apply" ordinarily means the act of using something by bringing it to bear or putting it upon something else with practical results: see generally, Oxford English Dictionary (online) sub verdo "application"; Cambridge Dictionary (online) sub verdo "application"; Merriam-Webster Dictionary (online) sub verdo "application". With those definitions in mind and reading it in context, I understand s. 1(4) to recognize that UNDRIP aggregates various international rights, obligations, principles, standards and aspirations, and to clarify that nothing in the Declaration Act may be interpreted as delaying the extent to which any of them would otherwise affect British Columbia laws, either interpretively or as incorporated into statutory or common law. For example, ss. 3, 4 and 5 of the Declaration Act create three positive statutory obligations, namely, to align laws with UNDRIP, create an action plan, and produce an annual report. Fulfilling one of those obligations cannot justify delay in fulfilling another. [140] Sections

2(a) and (b) of the Declaration Act come under the heading "Purposes of the Act". They provide that the purposes of the Act include "to affirm the application of the Declaration to the laws of British Columbia" and "to contribute to the implementation of the Declaration". As purpose statements, ss. 2(a) and (b) articulate the principles or policies the Declaration Act is intended to implement or the objectives it is intended to accomplish. Unlike preambulatory statements, purpose statements are binding as duly enacted law, but they are interpretive in character, not substantive, and they provide direction on how the substantive provisions of an enactment are to be construed: Sullivan, Statutes at §14.04. [141] As discussed, the Court in the First Nations Families Act Reference held that the purpose statement in the Federal Declaration Act that affirmed UNDRIP as "a universal international human rights instrument with application in Canadian law" incorporated UNDRIP into this country's positive law: at paras. 4, 15. [142] The ordinary meanings of the key words of ss. 2(a) and (b) may be summarized as follows: i) "to affirm" is to state positively that something is true, validate, or confirm something; ii) "to contribute" is to give or add something as part of helping to make something happen; and iii) "implementation" is the process of making something active or effective: First

Nations Families Act Reference at para. 107; see generally, Oxford English Dictionary (online), sub verdo "affirm", "contribute", "implementation" Cambridge Dictionary (online) sub verdo "affirm", "contribute", "implementation"; Merriam-Webster Dictionary (online) sub verdo "affirm", "contribute", "implementation". As noted, an "application" is the way in which something is used, and "to apply" is the act of using something by bringing it to bear or putting it upon something else with practical results. [143] Read together with ss. 1(1), 1(4) and 2(b), in context and harmoniously with the Declaration Act's scheme and object, I interpret s. 2(a) to mean that its first purpose is to state positively that UNDRIP is to be used by bringing it to bear on British Columbia laws, specifically, in the construction of the Act's substantive provisions. I also conclude that in affirming its domestic application, s. 2(a) incorporates (i.e., integrates) UNDRIP in its entirety into British Columbia positive law: First Nations Families Act Reference at paras. 4, 15. I interpret s. 2(b) to mean that the Declaration Act's second purpose is to add to the process of bringing UNDRIP into active effect. [144] I agree with the judge that, standing alone, s. 2(a) does not implement UNDRIP in British Columbia law in the sense that it creates substantive rights arising out of UNDRIP. Given the

declaratory nature of UNDRIP, that is unsurprising. However, I do not accept that the phrase "to contribute to the implementation of the Declaration" in s. 2(b) indicates the Declaration Act is not intended to implement UNDRIP in any immediate sense. Nor do I accept that UNDRIP remains a mere "non-binding international instrument" and, as such, plays a limited optional interpretive role. [145] Notably, the Federal Declaration Act and the First Nations Families Act both include purpose clauses identical to s. 2(b). In the First Nations Families Act Reference, the Court found that both Acts contribute to the domestic implementation of UNDRIP, with the First Nations Families Act doing so in a detailed and specifically targeted way via legislation. In addition, the statutory affirmation in s. 2(a) is expressed in positive and present terms, which, in my view, indicates the Legislature intended to ensure the immediate interpretive effect of UNDRIP in its entirety. Moreover, the combined effect of ss. 1, 2 and 3 of the Declaration Act contributes to the implementation of UNDRIP in British Columbia in an immediate and significant, albeit partial, way. [146] The foregoing interpretation generally aligns with the Minister's statement to the Legislature that s. 2(a) of the Declaration Act gives UNDRIP immediate effect as an interpretive aid in domestic law. It also aligns with the Truth

and Reconciliation Commission's 2015 call for all levels of government to implement UNDRIP and the federal executive's 2016 international expression of commitment to the domestic application and implementation of UNDRIP. [147] In his dissenting reasons, Justice Riley interprets s. 2 of the Declaration Act as a statutory mandate to pursue legislative reconciliation between British Columbia's laws and UNDRIP. While I agree that legislative reconciliation is an important aspect of the purpose of the Declaration Act, I see no reason, textually or contextually, to interpret s. 2 as limiting its purpose to legislative reform. In my view, if the Legislature intended to limit its purpose in this manner it could and would have said so. However, it did not. [148] Turning, then, to s. 3 of the Declaration Act, I begin by noting that the judge interpreted this substantive provision when conducting his justiciability analysis. However, in my view, this approach was incorrect. As I see it, a court must interpret a statute before considering whether a particular issue is justiciable. It follows that I consider it necessary to interpret s. 3 and its legal effect together with other relevant Declaration Act provisions in the overall statutory construction exercise before addressing the justiciability issue. In doing so, I bear in mind the requirement that "[e]very enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects": Interpretation Act, s.

8. I also bear in mind the need to apply the s. 8.1(3) presumption of consistency and the common law presumption of conformity, as previously described. [149] In my view, generously and purposively interpreted, s. 3 imposes a positive obligation on the Crown, in consultation and cooperation with Indigenous peoples, to take all steps, methods, and means (measures) necessary to ensure (make certain) that British Columbia laws clearly conform with the binding international rights, obligations, and principles aggregated in UNDRIP and generally harmonize with the minimum standards and aspirations that it articulates (UNDRIP consistency). It is the existence of inconsistency between a British Columbia law and one or more provisions of UNDRIP that triggers the Crown's obligation to take action, namely, to develop the measures necessary to resolve the inconsistency, in consultation and cooperation with Indigenous peoples, and to implement those measures (make them active or effective). Some such measures may require legislative action. To the extent they do, the Crown's duty is to develop the necessary amendments in consultation with Indigenous peoples and to place them before the Legislature. In other cases, executive or administrative action may be sufficient. For example, in the circumstances in question in this case, the Crown could decide to reform the Mineral Tenure Act, which

would mean placing proposed amendments before the Legislature, or the CGC could take action at the policy level. [150] I reach this conclusion for the following reasons. [151] First, s. 29 of the Interpretation Act provides that the term "must" in an enactment is to be construed as imperative. Accordingly, the language of s. 3 is obligatory: the government must take all measures necessary to ensure that the laws of British Columbia are consistent with UNDRIP. Read grammatically and together with the main clause of s. 3, the dependent clause ("[i]n consultation and cooperation with the Indigenous peoples in British Columbia") is also obligatory. [152] Second, as noted, the ordinary meaning of the word "consistent", when expressed relationally, is that two or more things are marked by conformity, adherence or harmony in relation to one another. The ordinary meaning of the word "measure" is a step, method or means taken to achieve an end or to judge the quality, effect, importance or value of something: see generally, Oxford English Dictionary (online), sub verdo "measure"; Cambridge Dictionary (online) sub verdo "measure"; Merriam-Webster Dictionary (online) sub verdo "measure". The foregoing interpretation aligns with both the ordinary meanings of the key words of s. 3 and the varied nature of UNDRIP, as previously discussed in connection with s. 8.1(3). [153] Third, the term

"government" in an enactment means His Majesty in right of British Columbia: Interpretation Act, s. 29. "His Majesty in right of British Columbia" is synonymous with the Crown and refers to the executive branch of government: see Patrick Monahan, Wade K. Wright & Erika Chamberlain, Hogg's Liability of the Crown, 5th ed. (Toronto: Thomson Reuters Canada, 2024) at 11-12 [Liability of the Crown]. Unlike the judge, I understand the imperative language of s. 3 in relation to the phrase "take all measures necessary" to acknowledge and respond to the limits of executive power, not as addressing whether the question of consistency between British Columbia laws and UNDRIP is justiciable. Specifically, in my view, in expressing the Crown's duty as "to take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration", s. 3 recognizes the reality that law-making power lies exclusively with the legislative branch. [154] Fourth, the foregoing interpretation of s. 3 harmonizes with ss. 1 and 2, as previously interpreted, and with the general structure of the Declaration Act. Specifically, as I have noted, the Declaration Act imposes three positive statutory obligations on government: i) to take measures to align laws with UNDRIP (s. 3); ii) to create an action plan to achieve the objectives of UNDRIP (s. 4); and iii) to produce an annual report on

progress made in implementing the measures and achieving the goals (s. 5). All three obligations must be met in consultation and cooperation with the Indigenous peoples of British Columbia. [155] Fifth, this interpretation also harmonizes with the overarching object and purpose of the Declaration Act, namely, to achieve consistency between the provisions and operation of British Columbia laws and UNDRIP and thus to contribute to its implementation and advance the goal of reconciliation. Moreover, it is consonant with several of the Minister's statements to the Legislature, including his statements that aspects of UNDRIP reflect binding conventional and customary law and that the Declaration Act brings UNDRIP standards into provincial law. [156] Again, I part company with Justice Riley for reasons related to our differing interpretations of s. 2, namely, his view of s. 3 as directed at legislative reform only. In my view, although legislative reform is obviously key to the alignment process envisaged in s. 3, nothing in its text or context suggest such a limitation. If the Legislature intended to limit the s. 3 duty to legislative reform it would have said so. For example, it could have limited the government's duty to take "necessary measures" to ensure that provincial enactments are consistent with UNDRIP or referred to "necessary legislative measures". However, it did

not. [157] Finally, the foregoing interpretation is consonant with various UNDRIP articles that provide for the active engagement of Indigenous peoples in matters that affect them and corresponding state duties. For example, articles 19 and 38 provide, respectively, that states shall "consult and cooperate in good faith with the indigenous people concerned in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them" and "take the appropriate measures, including legislative measures, to achieve the ends of this Declaration". In addition, and significantly for present purposes, article 32(2) provides that states shall "consult and cooperate in good faith with the indigenous peoples concerned in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources ". The Declaration Act, the Honour of the Crown, and the Duty to Consult [158] In the seminal Haida decision, the Court established a general framework for the common law duty to consult before Aboriginal title or rights claims have been decided. The common law duty flows from the Crown's duty of honourable dealing toward Aboriginal peoples. As Chief Justice McLachlin explained, the honour of the Crown is "always at stake in its dealings with Aboriginal peoples" and "a core precept that finds its application in concrete practices": at para.

16. It follows that the Crown must always act honourably in those dealings "if we are to achieve 'the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown'": Haida at paras. 16-17, citing Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para. 186, 1997 CanLII 302, quoting R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 31, 1996 CanLII 216. [159] A key aspect of the honour of the Crown is the assumption that the Crown intends to fulfil its promises: R. v. Badger, [1996] 1 S.C.R. 771 at para. 41, 1996 CanLII 236. As previously discussed, in the First Nations Families Act Reference the Court interpreted a legislative affirmation of the inherent right of self-government as a binding Crown promise of rights-recognition obliging the government to act accordingly, as though the principle of the honour of the Crown is engaged: at paras. 59-64. [160] The legislative affirmation in question in the First Nations Families Act Reference was s. 8(a) of the First Nations Families Act, which provides that the Act's first purpose is to "affirm the inherent right of self-government". The same affirmation is repeated in s. 18(1), which provides that "[t]he inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services". The Court explained that, by

enacting this affirmation, Parliament bound the federal government to act in accordance with the position affirmed as a matter of statutory positive law. Then the Court said this: [65] The affirmation in ss. 8(a) and 18(1) will inform the context and content of the resulting obligations, as if this affirmation was enshrined in the Constitution. As the Court has explained, "[the Constitution] is at the root of the honour of the Crown" (Manitoba Metis, at para. 70). Under the Act, the government formally undertakes to act in accordance with the position that this right has constitutional status (see Manitoba Metis, at paras. 69-70). The honour of the Crown is not a mere "incantation", but rather "finds its application in concrete practices"; it "gives rise to different duties in different circumstances" (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at paras. 16 and 18, quoted in Mikisew Cree, at para. 24). As the Court stated in Manitoba Metis, "the honour of the Crown requires that the Crown: (1) takes a broad purposive approach to the interpretation of the promise; and (2) acts diligently to fulfill it" (para. 75). [66] The fact that s. 7 of the [First Nations Families Act] requires the Crown to act as though the right of self-government described in s. 18(1) had been proved therefore implies that the Crown must take a broad approach

to the interpretation of this right and must act diligently to implement it, as long as this affirmation is part of the law in force. The fact is that the legislative affirmation regarding the scope of s. 35 "represents a promise of rights recognition, and '[i]t is always assumed that the Crown intends to fulfil its promises'", in this case the promise to act as though Indigenous peoples' right of self-government in relation to child and family services were recognized, while awaiting a formal court ruling on the question (Haida Nation, at para. 20, quoting Badger, at para. 41). [Emphasis added.] [161] Like the First Nations Families Act, the Declaration Act includes a legislative affirmation as its first purpose. In my view, that affirmation also amounts to a binding Crown promise, namely, that the Crown will act as though the existing legal rights, obligations, principles, minimum standards and goals expressed in UNDRIP in specific relation to Indigenous peoples apply to British Columbia laws, including the common law. By enacting s. 2(a) of the Declaration Act, the Legislature created a reasonable expectation that government actors will exercise their powers in accordance with the position it has affirmed, take a broad purposive approach to interpreting its promise, and act diligently in fulfilling that promise. The honour of the Crown is thus engaged. [162] In Haida, the Court observed that, in accordance with the common law tradition, the Crown duty to consult would develop over time with the application of the general framework it established: at para.

11. In Nevsun, the Court observed that the common law develops "where such developments are necessary to clarify a legal principle, to resolve an inconsistency, or to keep the law aligned with the evolution of society": at para.

118. Consistent with those observations, the provincial respondents acknowledge that, as a relevant international instrument, UNDRIP can influence the development of the common law duty to consult. However, they say, development of that common law duty should be confined to incremental changes, with the "heavy lifting" of UNDRIP alignment to occur through legislative amendment. [163] I agree with provincial respondents that the influence of UNDRIP on the development of the common law duty to consult should proceed incrementally. I also agree that legislative action is the best route to align UNDRIP and British Columbia laws. However, given the Crown's solemn promise to act as though UNDRIP applies to British Columbia laws, I agree with Ehattesaht that UNDRIP can and should inform the interpretation of the common law duty to consult that arises with provincial decision-making and conduct, and that the appellants are entitled to raise both their s. 35 rights and their UNDRIP rights in relation to the Mineral Claims Regime in consultation. Is the Question of Consistency Between the Mineral Claims Regime and the Declaration Act and UNDRIP Justiciable? Appellants [164] Next, the appellants submit the judge erred in concluding that consistency between the Mineral Claims Regime and the Declaration Act and UNDRIP is not justiciable because s. 3 of the Declaration Act does not "call on"

or "invoke" courts to adjudicate consistency. In their submission, the consistency between a British Columbia law and UNDRIP is a quintessentially legal question that a court may competently and legitimately adjudicate. They say there is no common law requirement that a statute "call on" or "invoke" courts to adjudicate a question to make it justiciable. On the contrary, they rely on Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 [Highwood Congregation] to suggest that subject to a law limiting the court's jurisdiction, the only preconditions to justiciability are institutional capacity and legitimacy with respect to the subject matter of a dispute. [165] The appellants go on to say that they asked the judge to decide whether the Mineral Claims Regime was inconsistent with s. 35 and the Declaration Act and UNDRIP. However, he declined to answer their question with respect to the Declaration Act and UNDRIP based on a flawed interpretation of s. 3 of the Declaration Act. In their submission, this was an obvious error: s. 3 does not oust the court's jurisdiction to adjudicate a dispute when the preconditions of institutional capacity and legitimacy are satisfied. Rather, they say, properly interpreted, s. 3 makes inconsistency both the condition that triggers the government's legal duty to consult, cooperate, and take necessary measures and

the subject of the required consultation. [166] According to the appellants, where, as here, Indigenous peoples and the government disagree on whether a law operates consistently with UNDRIP, the dispute on that threshold question requires resolution. However, unless they have access to the courts to resolve the dispute, they are left without an effective remedy and their rights under s. 3 are rendered unenforceable. They submit that this interpretation is incorrect on the language of s. 3, inconsistent with articles 38 and 40 of UNDRIP, and incompatible with the Act's purpose of implementing UNDRIP and the goal of achieving reconciliation. They submit further that the provincial respondents' decision to make a non-binding concession that the Mineral Claims Regime is inconsistent with UNDRIP, post-judgment, in the context of this appeal, does not render the matter non-justiciable. Provincial Respondents [167] The provincial respondents begin by emphasizing that they do not suggest all elements of s. 3 of the Declaration Act will be non-justiciable in all circumstances. Rather, they say, the consistency question raised in the specific context of this case is non-justiciable. They also challenge the premise that they are currently denying inconsistency between the Mineral Claims Regime and UNDRIP or refusing to consult and cooperate to achieve their alignment. On the contrary,

they say, neither premise is true. [168] According to the provincial respondents, the judge did not improperly impose an additional criterion in his justiciability analysis. Rather, his comment that s. 3 was not intended to "invoke" court adjudication in every instance where a British Columbia law may be inconsistent with UNDRIP goes to the court's proper role within Canada's constitutional framework. In their submission, although the determination of UNDRIP consistency has a legal component, that does not overcome the intent of the legislator or the factors relevant to the justiciability analysis, such as the close connection between identifying inconsistency and developing necessary measures and the complexity of both UNDRIP and the Mineral Tenure Act. [169] The provincial respondents submit that these factors support addressing the consistency question through the process of consultation and cooperation, not the courts. They say that piecemeal judicial declarations confirming inconsistency at large or in relation to isolated articles of concern to a particular litigant risk incompleteness, inaccuracy and misdirection. This is particularly so, they say, given the holistic nature of the law reform contemplated by s. 3 and the central role of consultation and cooperation between the parties that infuses both the Declaration Act and UNDRIP. They also emphasize the government

cannot unilaterally ensure compliance with the requirements of s. 3 and repeat that the Declaration Act's framework for implementing UNDRIP is backstopped by a robust framework of legislative accountability, which is what the Legislature intended. Moreover, they say, jurisdiction and justiciability are different concepts, and, while a court may have jurisdiction to decide an issue, it may nonetheless conclude the issue is not justiciable on considering the criteria of capacity and legitimacy. Analysis [170] In Highwood Congregation, Justice Rowe explained that justiciability "is about deciding whether to decide a matter in the courts": at para. 33, citing Lorne M. Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd ed. (Toronto: Carswell, 2012) at 1 [Sossin]. Concerned with the subject of a dispute, it is "a set of judge-made rules, norms and principles delineating the scope of judicial intervention in social, political and economic life" and was developed to answer the question of whether an issue is appropriate for judicial determination: at paras. 32-33, citing Sossin at 7. The primary goal of the doctrine of justiciability is to ensure that the court remains within the confines of its proper role in the constitutional framework of our democratic form of government: Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 at 545, 1991 CanLII 74. [171] As Justice Rowe emphasized in Highwood Congregation, there is no single set of rules that delineate the scope of justiciability: [34] Indeed, justiciability depends to some degree on context, and the proper approach to determining justiciability must be flexible. The court should ask whether it has the institutional capacity and legitimacy to adjudicate the matter: see Sossin, at p.

294. In determining this, courts should consider "that the matter before the court would be an economical and efficient investment of judicial resources to resolve, that there is a sufficient factual and evidentiary basis for the claim, that there would be an adequate adversarial presentation of the parties' positions and that no other administrative or political body has been given prior jurisdiction of the matter by statute" (ibid.). [172] The justiciability doctrine is "founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes": Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441 at 459, 1985 CanLII 74. In determining that role, the focus of the justiciability analysis is often the intention of the Legislature regarding the interpretation, application, and enforcement of its statute: see Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49 at 90-91, 1989 CanLII 73; Friends of the Earth v. Canada (Governor in Council), 2008 FC 1183 at para. 31, aff'd 2009 FCA 297, leave to appeal to SCC ref'd, [2009] S.C.C.A. No.

497. To find a legislative intention to oust inherent jurisdiction, courts require "clear and precise statutory language": Buchan v. Moss Management Inc., 2010 BCCA 393 at para. 29. [173] A matter is not rendered non-justiciable simply because it raises complex or controversial issues with social or political dimensions. Courts must be flexible and focus on the specific context in question when determining justiciability. In doing so, the court should ask whether a matter has a sufficient legal component upon which it can adjudicate, bearing in mind Canada's constitutional matrix and the need to avoid inappropriate intrusion into the spheres reserved to other branches of government: La Rose v. Canada, 2023 FCA 241 at paras. 28-32; Friends of the Earth at para. 25. [174] That said, policy considerations underlie all legislation. Once political choices are made and a legislative response is crystallized, a law is not insulated from judicial scrutiny solely because the issue raises a political question. The justiciability of a matter turns largely on whether "the court can adjudicate the issues against an objective legal standard". If so, the court cannot relinquish its jurisdiction over an issue merely because it raises a political question, nor can it abdicate its duty to decide the legal questions properly posed for judicial determination: La Rose at paras. 29-36. [175] Bearing

the foregoing principles in mind, I agree with the appellants that the judge erred in his justiciability analysis. Properly interpreted, s. 3 does not preclude judicial adjudication of whether a British Columbia law is consistent with UNDRIP or oust the courts' jurisdiction to do so when asked by an Indigenous litigant to resolve a dispute with the Crown on an allegedly duty-triggering inconsistency. The question of consistency is fundamentally legal in nature, it can be adjudicated by the court against an objective legal standard, and, where disputed, is on its face justiciable. That it may also be complex and subject to consultation between the government and Indigenous peoples does not impact its justiciability. [176] The appellants sought a judicial determination of whether the operation of the Mineral Claims Regime was inconsistent with s. 3 of the Declaration Act and their rights recognized in UNDRIP. In the court below, the provincial respondents denied that the Mineral Claims Regime triggered a duty to consult under the common law, the Declaration Act, or otherwise. As previously discussed, it is the existence of inconsistency between a British Columbia law and UNDRIP that triggers the Crown's duty to develop, in consultation and cooperation with Indigenous peoples, measures to resolve the inconsistency and implement those measures. However, where, as below, the Crown

denies the existence of any inconsistency, unless Indigenous litigants have access to the courts to decide whether an inconsistency exists, they are left without a remedy and their rights under s. 3 are unenforceable. [177] The Legislature chose to impose a statutory duty on the Crown to consult, cooperate and take necessary measures to align British Columbia laws and UNDRIP. I see nothing in the language of s. 3 to suggest it intended the rights and obligations so imposed to be unenforceable by precluding the courts from resolving threshold disputes on action-triggering inconsistencies. As I have explained, I understand the imperative language in s. 3 in relation to "take all measures necessary" to respond to the limits of executive power, not to have an impact on the justiciability of consistency questions. Additionally, I do not see the Crown's duty to consult with Indigenous peoples in the alignment process as inconsistent with judicial resolution of consistency questions. [178] Where there is a right, there is generally a remedy for its violation: Nevsun at para. 120; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at para.

25. I reject the submission that the planning and reporting obligations in ss. 4 and 5 of the Declaration Act provide an adequate (or any) remedy where, as below, the Crown say there is no inconsistency between a British Columbia law and UNDRIP. The existence of an inconsistency between a law and UNDRIP is not an explicit trigger for the planning and reporting obligations in ss. 4 and 5, and the Legislature is not an adjudicative body equipped to resolve a threshold legal question of this nature. Nor can it be resolved by the parties through consultation and cooperation, given that the Crown's position means it need not consult at all. [179] Moreover, an interpretation that s. 3 "does not create justiciable rights" is inconsistent with the first two purposes of the Declaration Act, namely, to affirm the application of UNDRIP to British Columbia law and to contribute to its implementation. It also fails to comport with the common law presumption of conformity and the s. 8.1(3) presumption of consistency. As noted, article 38 of UNDRIP provides that states "shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration". In addition, article 40 provides that Indigenous peoples shall have "the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other

parties ", together with effective remedies for rights violations. Interpreting s. 3 to provide for unenforceable rights and corresponding duties in the alignment process does not conform to or harmonize with either article. Nor does it advance the overarching goal of reconciliation. [180] The judge commenced his justiciability analysis by finding the courts have both the institutional capacity and legitimacy to decide whether British Columbia laws and the Declaration are consistent. In my view, that finding was correct. However, based on a flawed interpretation of s. 3 of the Declaration Act, he erred by going on to conclude that the question posed by the appellants regarding the alleged inconsistency between the Mineral Claims Regime and UNDRIP was nonetheless non-justiciable. [181] As I see it, there are several ways in which a disputed question in relation to s. 3 of the Declaration Act may come before the court. For example, there may be a dispute about: i) whether there is an inconsistency between a British Columbia law and UNDRIP (as in this case); ii) whether the type of inconsistency in issue must be addressed by the Crown taking measures; iii) what measures should be taken; iv) the adequacy of the consultation process; or v) the meaning or extent of "cooperation". In every instance, justiciability concerns may arise, and, if they do, the court will need to determine

whether, given the nature of the dispute, including the relevant articles of UNDRIP, the matter is justiciable. [182] I agree with the appellants: the question they posed below is quintessentially justiciable. In my view, the provincial respondents' recent change of position on the answer to the question relates to whether declaratory relief should be granted as a matter of judicial discretion, not to whether the question itself is justiciable. As I see it, the same is true of the concerns underlying Justice Riley's differing views from my own regarding the proper interpretation of s. 3 of the Declaration Act and justiciability. What Relief, If Any, Should Be Granted on the Appeal? Appellants [183] Finally, the appellants contend that the Mineral Claims Regime is manifestly inconsistent with their rights recognized in the Declaration Act and article 32(2) of UNDRIP. In their submission, while the judge did not adjudicate the question, that is the logical extension of his conclusions. They acknowledge that they also relied on other UNDRIP articles below and in their factums, but at the hearing of the appeal, they narrowed their focus to article 32(2). They characterize article 32(2) of UNDRIP as the key procedural safeguard to ensuring that their substantive rights are effective and submit the relief they seek is rooted in s. 2(2)(b) of the Judicial Review Procedure Act and R.

2-1(2)(c) of the Supreme Court Civil Rules. [184] According to the appellants, it is neither necessary nor desirable for this Court to adjudicate the precise content and contours of the article 32(2) state duty to consult or the international standard of free, prior and informed consent that it articulates. Given that the Mineral Claims Regime provides for no prior consultation whatsoever, they say it is plainly inconsistent with article 32(2) of UNDRIP on its face. In their submission, the full meaning of article 32(2) can and should be addressed by the parties in consultation, which will be facilitated by the court-based accountability associated with the grant of declaratory relief. [185] The appellants go on to submit that the relief they seek would have considerable practical utility. Specifically, they say, it would allow them to engage with the Crown in the consultation context on the basis that there is an inconsistency between the Mineral Claims Regime and their rights recognized in UNDRIP and that their UNDRIP rights are relevant to the administration of the Mineral Tenure Act as the process of reform unfolds. Moreover, they submit that the provincial respondents' shifting position and opposition to the grant of a declaration of inconsistency between the Mineral Claims Regime and UNDRIP serves to highlight the practical utility of this Court granting the relief they

seek and thus ensuring court-backed accountability. Respondents [186] The provincial respondents contend that the appellants have not met the threshold criteria for the grant of a declaration. In their submission, the relief they seek is untethered to an exercise of a statutory power and therefore not authorized by the Judicial Review Procedure Act. In other words, they say, the duty of the government under s. 3 of the Declaration Act does not fall within the definition of a statutory power under the court's supervisory jurisdiction pursuant to s. 2(2)(b) of the Judicial Review Procedure Act. [187] The provincial respondents emphasize that they no longer deny the existence of inconsistency between the Mineral Claims Regime and UNDRIP, as evidenced by their decision not to appeal the s. 35 declaration. Importantly, they say, the complex s. 3 alignment process with respect to the Mineral Tenure Act is already moving forward based on a shared understanding that the s. 35 consultation deficit declared by the judge, together with broader inconsistencies, must be addressed in consultation. According to the provincial respondents, in the circumstances there is no real or current dispute between the parties in which the Court could provide productive assistance by granting declaratory relief. Accordingly, if the Court did, it would lack practical utility. [188] In support of their position, the provincial respondents rely on the Supreme Court of Canada's long-standing recognition that "[t]rue reconciliation is rarely, if ever, achieved in courtrooms", citing Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 at para.

24. They emphasize that "[r]econciliation often demands judicial forbearance" and "[c]ourts should generally leave space for the parties to govern together and work out their differences", as discussed in Ontario (Attorney General) v. Restoule, 2024 SCC 27 at para. 297 [Restoule]. In their submission, the process of consultation and collaboration mandated by s. 3 of the Declaration Act exemplifies this approach, and the grant of declaratory relief at the outset of the process may disrupt, rather than enable, reconciliation. For example, they say, premature court intervention could change the cooperative dynamic of the consultation, encourage unnecessary resort to the courts on issues under discussion, and spawn expensive, protracted litigation on contentious issues. [189] Moreover, the provincial respondents argue that their lack of interest in opposing the substance of the declaration sought by the appellants indicates that declaratory relief is unnecessary. They also point to the broad, imprecise, and variable nature of the declarations sought below and in this Court. In the provincial respondents' submission, these deficits provide further support for their position that the grant of the declarations sought by the appellants would lack practical utility and should be denied. Analysis [190] As the Court explained in Shot Both Sides v. Canada, 2024 SCC 12, declarations are

authoritative statements of legal states of affairs, but they do not provide consequential or coercive relief to an applicant. Rather, declarations outline the parameters of legal states of affairs or relationships and may confirm or deny the legal rights of the parties or the breach of those rights: at paras. 65-66. Unlike most rulings, a declaratory judgment goes no further in providing relief than stating an applicant's rights: Restoule at para. 279. [191] The grant of declaratory relief is discretionary. The discretion is only engaged if certain threshold criteria are met, namely: i) the court has jurisdiction to hear the issue; ii) the dispute is real and not theoretical; iii) the party raising the issue has a genuine interest in its resolution; and iv) the responding party has an interest in opposing the declaration sought: S.A. v. Metro Vancouver Housing Corp, 2019 SCC 4 at para. 60. [192] Where the threshold criteria are met, declaratory relief will only be granted if it would have practical utility in that the declaration will settle a live controversy between the parties. In making that assessment, courts consider the effect of the requested remedy on the parties' rights or their clarification. Given its non-coercive nature, declaratory relief has been recognized as a means by which the court can assist in fostering and promoting reconciliation in the context of

Aboriginal and treaty rights: First Nation of Na-Cho Nyäk Dun v. Yukon (Government of), 2024 YKCA 5 at paras. 169-173; Shot Both Sides at paras. 67-74. [193] The appellants' submissions on the value of declaratory relief in the present circumstances are persuasive. Specifically, I agree that the Mineral Claims Regime is manifestly inconsistent with article 32(2) of UNDRIP because it does not provide for any consultation and cooperation with the Indigenous peoples concerned prior to granting a mineral claim on lands to which they have asserted a claim. The provincial respondents acknowledge that article 32(2) provides for consultation rights as great as s. 35 consultation rights and they have not appealed the s. 35 declaration. While the precise content of the international legal duty to consult Indigenous peoples in connection with state action affecting their lands or territories is debatable, the existence of a duty to do so is generally accepted as a matter of international law. [194] In other words, in my view, in the circumstances of this case it is not necessary to engage in a detailed way with the text of article 32(2) or other UNDRIP articles to make a finding of inconsistency. However, such an exercise may well be required to answer a different question raised in a different context in relation to whether a British Columbia law is consistent with UNDRIP or, as

previously discussed, to achieve interpretive consistency between a British Columbia enactment and UNDRIP under s. 8.1(3) of the Interpretation Act. [195] I also agree with the appellants that the relief sought relates to a failure to exercise a statutory power, and it is rooted in the Judicial Review Procedure Act and the Supreme Court Civil Rules. As discussed, the CGC operated a system for automatic pre-consultation registration of mineral claims, which engaged issues in relation to s. 35 and the Declaration Act and UNDRIP. Further, I agree with the appellants that a declaration would help to affirm their right to raise UNDRIP consistency in consultation, and, in doing so, promote the overarching goal of reconciliation. [196] In light of their post-judgment change in position, I find it difficult to understand why the provincial respondents oppose the grant of a declaration that the CGC's conduct in allowing for automatic registration of mineral claims without creating a system for consultation is inconsistent with article 32(2) of UNDRIP. In my view, their intransigence on this apparently no longer contentious point does not contribute to the cooperative consultative dynamic to which all concerned should aspire. [197] Given the history of the litigation, it seems to me that this Court formally declaring what the provincial respondents now informally acknowledge to be true

would likely contribute to the tone and quality of the ongoing consultation process. In addition, by affirming the duty-triggering existence of inconsistency between the Mineral Claims Regime and article 32(2) of UNDRIP and the need to address it in the consultation forum, a declaration would facilitate, not disrupt, reconciliation. [198] Moreover, in my view, the fact that the provincial respondents have not appealed the declaration regarding the s. 35 consultation deficit is of no moment. The judge dismissed the appellants' applications for declaratory relief with respect to the alleged UNDRIP consultation deficit. In the absence of appellate intervention, those dismissal orders remain extant. Closing Comment [199] As I noted near the outset, Forest Crystals and its directors ask that we encourage all concerned not to draw third parties into complex litigation of this sort unnecessarily. As a general matter, that is an obviously appropriate approach. That said, I make no comment on the specifics of this case. Such matters are best addressed in the court below. Conclusion [200] For the foregoing reasons, I would allow the appeals, set aside the judge's orders dismissing the appellants' applications for relief with respect to inconsistency between the Mineral Claims Regime and UNDRIP, and declare that the CGC's conduct in establishing an online system allowing for automatic

registration of mineral claims without requiring prior consultation and cooperation of affected Indigenous peoples is inconsistent with article 32(2) of UNDRIP. "The Honourable Justice Dickson" I AGREE: "The Honourable Justice Iyer" Reasons for Judgment of the Honourable Justice Riley: Introduction [201] I agree with my colleague Justice Dickson that the judge erred in holding that the Declaration Act does not implement UNDRIP into British Columbia law. The judge was in error in concluding that, despite the Legislature's passage of the Declaration Act into law, UNDRIP remains a non-binding international instrument. I concur with my colleague's conclusion that the Declaration Act incorporates UNDRIP into the positive law of British Columbia, with immediate legal effect. However, I part company with her as to the nature of the Declaration Act's legal effect, and the role that courts can and should play in achieving its aims. [202] In my view, the Declaration Act gives the government a statutory mandate and responsibility to pursue legislative reconciliation through the implementation of UNDRIP, and establishes a framework for doing so. The objective is to bring British Columbia's laws into alignment with the rights, standards, and goals contemplated in UNDRIP. To this end, the statute requires the government, in consultation and cooperation with Indigenous peoples, to take all

measures necessary to make British Columbia's laws consistent with UNDRIP. It makes express provision for government accountability through mandatory reports to the Legislature. [203] The expectation is that the government will take constructive, collaborative, concrete steps to attain consistency between British Columbia's laws and UNDRIP, through legislative reform, and other executive and administrative action. The statutory scheme is not built around, and does not contemplate, the identification and litigation of inconsistency in the courtroom. This is the basis of my fundamental disagreement with the notion that the Declaration Act gives the court a mandate to rule upon claims of inconsistency between particular British Columbia laws and specific UNDRIP articles. [204] In my view, the question of whether the courts have any role to play in assessing claims of inconsistency between British Columbia's laws and UNDRIP ought to be determined as a matter of statutory interpretation, based on the text of the Declaration Act, assessed in light of the purpose of the legislation, and the context in which it operates. For the reasons below, I conclude that the Declaration Act does not call upon the courts to adjudicate such claims of inconsistency. [205] This conclusion is reinforced when one asks and answers the same question through the lens of justiciability. For the reasons

given below, I conclude that the question of inconsistency between British Columbia's laws and UNDRIP is not a justiciable matter because it would take courts beyond their proper role in our constitutional democracy. [206] Finally, I accept that courts may have a role to play in holding the government to account for its statutory obligations under the Declaration Act to consult with Indigenous peoples, and to take all measures necessary to ensure consistency of British Columbia's laws with the various rights, standards of achievement, and goals contemplated in UNDRIP. However, that jurisdiction ought not to be invoked in this case. The judge made a declaration recognizing the Crown's duty to consult with affected First Nations under s. 35(1) of the Constitution Act prior to accepting mineral claims falling within their asserted territories. For the reasons stated below, I consider the judge's declaration that the Crown has a s. 35 duty to consult sufficient on its own to ensure that the government lives up to its responsibility to take all necessary measures to ensure the Mineral Claims Regime's consistency with UNDRIP. Background [207] There are three aspects of the judge's reasons that I wish to highlight before turning to an analysis of the issues on appeal. The first two are directly relevant to my analysis. The third is worth pointing out because it underscores the

forward-looking nature of what is in issue in this appeal. [208] The first topic of significance is the judge's consideration of the argument that the existing Mineral Claims Regime did not comply with the Crown's duty to consult on unresolved Aboriginal rights claims under s. 35 of the Constitution Act. On this issue, the judge focused on whether the government 'drew the line' in the right place, in taking the position that consultation with a First Nation asserting Aboriginal rights over territory affected by a particular mineral claim: (i) was not required prior to granting a mineral claim under Part 2 of the Mineral Tenure Act, allowing for limited mineral exploration; and (ii) was only required prior to granting a mining lease under Part 3 of the Mineral Tenure Act, allowing for more extensive development of the mineral claim area. [209] On this first topic, the judge rejected the Crown's argument that the government had "drawn the line in the correct place". The judge found that the granting of the particular mineral claims at issue in these proceedings had adverse "physical impact on areas of cultural importance" to the Gitxaala and the Ehattesaht. Further, granting any mineral claim within the asserted territory of any First Nation with unresolved Aboriginal rights claims has adverse "physical and economic" impacts on the First Nation's asserted rights. All of these

adverse impacts triggered the s. 35 duty to consult, prior to the grant of a mineral claim under Part 2 of the Mineral Tenure Act. The latter impacts were systemic, because they could apply to any mineral claim within the territory of any First Nation having an unresolved Aboriginal rights claim. This, on the judge's findings, warranted a general declaration, not specific to the Gitxaala or the Ehattesaht, that the Crown owes a s. 35 duty to consult "prior to issuing mineral claims" under the Mineral Tenure Act, and that the government's conduct in establishing and operating an online system for automatic registration of mineral claims, without consultation, constituted a breach of the duty to consult. The judge suspended the effect of the declaration for 18 months, to allow for the "design and implementation" of a regime providing for consultation prior to granting of mineral claims. There is no appeal from this aspect of the judge's decision. [210] The second topic of particular relevance to my analysis is the judge's consideration of the argument that, independent of the complaints about the Mineral Claims Regime's non-compliance with the s. 35 duty to consult, the regime was also inconsistent with various provisions of UNDRIP, given the force of law through the Declaration Act. [211] With regard to this second topic, the judge held that the enactment of the Declaration Act

did not "implement UNDRIP into the domestic law of British Columbia", such that, in the judge's view, it remained a "non-binding international instrument". The judge went on to consider principles of justiciability, concluding that s. 3 of the Declaration Act did not "impose a requirement of consistency" as between British Columbia's laws and UNDRIP, and did not "call upon the courts to adjudicate inconsistency". Rather, in the judge's view, s. 3 of the Declaration Act "contemplates ongoing cooperation between the government and the Indigenous peoples of [British Columbia] to determine which of our laws are inconsistent with UNDRIP". He added that since s. 3 obliges the government to "consult and cooperate" with Indigenous peoples, it could be that a failure to do so would constitute "a justiciable breach of the government's obligations", however that question did not arise in this case. The judge therefore dismissed the claim for a declaration that the existing Mineral Claims Regime was inconsistent with UNDRIP. It is this determination that is the focus of the appeal. [212] The third topic I wish to highlight is the judge's consideration of the validity of certain mineral claims that had been granted under the existing Mineral Claims Regime, and which fell within the asserted territories of the Gitxaala and the Ehattesaht. The Gitxaala and Ehattesaht argued that these mineral

claims ought to be quashed on the basis that they were granted under a process that: (i) did not involve consultation as required under s. 35 of the Constitution Act; and (ii) was inconsistent with UNDRIP. [213] On this third topic, the judge considered only whether the impugned mineral claims were invalid because the regime did not involve any s. 35 consultation. (Having rejected the Gitxaala and Ehattesaht arguments on the effect of the Declaration Act, the judge did not consider whether the mineral claims were invalid due to asserted inconsistency with UNDRIP.) The judge ultimately refused to quash the impugned mineral claims, relying on three key lines of reasoning. The first was the forward-looking nature of the duty to consult. The second was the de facto doctrine, under which rights and obligations created or recognized under laws and legal processes that were valid at the time "are, and will always be enforceable and unassailable". The third was the need for certainty as to the validity of all existing mineral claims under the Mineral Tenure Act. No appeal is taken from this determination. Analysis [214] As noted, I concur with my colleague's analysis and conclusion on the status of UNDRIP under British Columbia law. Where I differ with her is on the legal effect of the Declaration Act, and the role that courts can and should play in achieving its aims. [215] The

fundamental question is whether the courts have any role to play in assessing claims of inconsistency between British Columbia's laws and UNDRIP. In my view, the answer is "no". I reach that conclusion principally because, on my interpretation of the Declaration Act, the Legislature has not assigned any such role to the courts. The doctrine of justiciability reinforces this conclusion, because the Declaration Act sets up a framework for legislative reconciliation within the purview of the executive and legislative branches of government. By making judicial pronouncements on inconsistency between UNDRIP and specific provincial laws, the court would be inserting itself into the law reform process, in a matter that strays outside the proper role of the judicial branch of government in our constitutional democracy. Statutory Interpretation [216] Before squarely addressing the interpretation of the Declaration Act itself, I will comment briefly on s. 8.1(3) of the Interpretation Act. It states that every enactment "must be construed as being consistent with" UNDRIP. I agree with the judge that s. 8.1(3) establishes an interpretive "overlay", but I disagree with his suggestion that this overlay is only engaged where there are two potentially competing interpretations of a statute. This would assign only a residual or secondary role to s. 8.1(3), in a manner that does not accord with

its intended effect. [217] In my view, courts are required by s. 8.1(3) of the Interpretation Act to interpret British Columbia's laws in a manner that achieves the greatest amount of consistency with UNDRIP that a text-based, purposive, and contextual interpretation of those laws will bear. One must always interpret a particular statutory provision based upon its text, purpose, and context. To the extent that the rights, standards, and goals reflected in UNDRIP are implicated, s. 8.1(3) of the Interpretation Act further requires us to adopt the text-based, purposive, and contextual interpretation that is most consistent with UNDRIP. This is not a function of any binary distinction between the concepts of consistency and inconsistency, but rather a recognition of the objective of maximizing consistency of the province's laws with UNDRIP. [218] This brings me to the interpretation of the Declaration Act. I begin by considering its legislative purpose. The Declaration Act's stated purposes are to affirm the application of UNDRIP to British Columbia's laws, to contribute to UNDRIP's implementation, and to affirm and foster the development of relationships between British Columbia and Indigenous governing bodies: s.

2. This is a statutory mandate to pursue legislative reconciliation, intended to align British Columbia's laws with the rights, standards, and goals recognized in UNDRIP. [219] I move next to the text of the statute. Here, I will first address the Declaration Act's overall structure, before turning to the text of s. 3, which is the provision the appellants rely upon to say that the courts should assume the role of adjudicating claims of inconsistency between provincial laws and UNDRIP. [220] The structure of the Declaration Act provides a framework for implementing UNDRIP through legislative reconciliation and other means. Section 2 sets out the purposes of the statute. Section 3 assigns the government, in consultation with Indigenous peoples, the responsibility for taking all measures necessary to ensure that British Columbia's laws are consistent with UNDRIP. Section 5 provides for oversight and accountability of the legislative reform project in the form of annual reports to the Legislature. Sections 4, 6, and 7 implement UNDRIP in other ways: mandating an action plan to implement the objectives of UNDRIP and providing a statutory framework for the government and Indigenous governing bodies to jointly exercise statutory decision-making powers. [221] There is nothing in the overall structure of the Declaration Act indicating, expressly or by implication, that the courts have

a specific role to play in the implementation of UNDRIP. This is not to say that express reference to the courts or court processes would be necessary to clothe courts with jurisdiction. Superior courts have the jurisdiction to interpret, apply, and enforce provincial laws, and to judicially review action taken under those laws, unless that jurisdiction is expressly ousted, in a constitutionally compliant manner: Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714 at 734-35, 1981 CanLII 24; Crevier v. A.G. (Québec), [1981] 2 S.C.R. 220 at 234, 1981 CanLII 30. It is nonetheless relevant that, unlike many other statutes setting out mechanisms for their administration or enforcement through judicial proceedings, the Declaration Act makes no such provision. The statute gives no express statutory mandate to the courts. [222] This brings me to the text of s.

3. It assigns to "the government", in "consultation and cooperation with the Indigenous peoples in British Columbia", the responsibility to "take all measures necessary to ensure" that the province's laws are "consistent" with UNDRIP. By its text, s. 3 gives "the government", working together with Indigenous peoples, a mandate to embark upon a process of legislative reconciliation, with a view to making British Columbia's laws consistent with UNDRIP. [223] There are, in my view, four textual features of s. 3 which augur against the conclusion that the courts should assume the role of adjudicating inconsistency between any particular British Columbia law and specific articles in UNDRIP. These features are revealed by asking what the Legislature designed s. 3 to achieve, who the Legislature assigned to attain this goal, how the Legislature envisioned the legislative goal would be attained, and when the Legislature expected the goal to be attained. [224] I begin with the "what". The focus of s. 3 is on attaining consistency between British Columbia's laws and UNDRIP. In submissions, many of the parties described this as a process of "alignment" of British Columbia's laws with UNDRIP. I accept that characterization. However, contrary to the submissions of the parties and the conclusions of my colleague, I see no reason to read the text of s. 3 as focusing on inconsistency. The text

of s. 3 is directed toward the prospective attainment of consistency, not on the identification and adjudication of claims of inconsistency. [225] I turn next to the "who". The Legislature has imposed a duty on "the government", in consultation and cooperation with Indigenous peoples, to take all necessary measures to ensure consistency. I will address the consultation and cooperation feature in more detail below. My present focus is on the Legislature's designation of "the government" as the body responsible for pursuing the goal of consistency. [226] The term "government" means "His Majesty in right of British Columbia" (per s. 29 of the Interpretation Act), often referred to as "the Crown". These terms describe the executive branch of government. Although the executive has a role to play in the legislative process (by introducing proposed legislation, and in giving royal assent to laws as passed by the legislature), the power to make laws rests exclusively with the legislative branch: Liability of the Crown at 11-12; Anglin v. Resler, 2020 ABCA 184 at paras. 10-12. Thus, by virtue of the institutional limits on the executive, the government does not have the constitutional authority to guarantee consistency between the province's laws and UNDRIP. The most the government can do is take all measures within its control to pursue the objective of consistency. [227] This brings

me to the "how". Section 3 of the Declaration Act directs the government to act "[i]n consultation and cooperation with" Indigenous peoples. This ties into s. 4, which directs the government, again "in consultation and cooperation with the Indigenous peoples in British Columbia", to "prepare and implement" an "action plan", which must be presented to the Legislature. [228] Thus, the manner by which the government is expected to pursue the objective of attaining consistency between British Columbia's laws and UNDRIP is through executive action, working in cooperation with Indigenous peoples in the province, focused on legislative reform. Oversight and accountability come from the Legislature under ss. 4 and 5. [229] All of this is entirely consistent with the establishment of a framework for legislative reconciliation as contemplated in First Nations Families Act Reference at paras. 4-8, 17. Nothing in this model requires, or even contemplates, a role for the courts in adjudicating claims of inconsistency between British Columbia's laws and UNDRIP. [230] Finally, I turn to the "when". The text of s. 3 contemplates a prospective exercise of taking measures to ensure consistency between British Columbia's laws and UNDRIP. The annual reporting requirement provided for in s. 5 tells us that the alignment exercise will not be instantaneous, and will not be accomplished in any set period of time. Section 3 of the Declaration Act envisions a process, over an open-ended time frame, during which alignment of provincial laws with the Declaration Act will be a work in progress. Reconciliation is a "long-term project" which will "not be accomplished in a single sacred moment": First Nations Families Act Reference at para.

90. This makes it hard to read the text of s. 3 as inviting courts to adjudicate on claims of inconsistency between UNDRIP and specific British Columbia laws as they exist at any particular point in time. [231] It is also necessary to consider the broader context of the legislation. [232] One contextual feature is the nature of UNDRIP as an instrument passed by the United Nations General Assembly. It is not a binding treaty (First Nations Families Act Reference at para. 4), although the Declaration Act makes it part of the positive law of British Columbia. While one must be cautious in placing undue emphasis on any one part of the text to the exclusion of other parts, it is nonetheless noteworthy that UNDRIP's final preambulatory statement "[s]olemnly proclaims" that it is a "standard of achievement to be pursued in a spirit of partnership and mutual respect". Other preambulatory statements reference "treaties, agreements and other constructive arrangements", "strengthened partnership", and enhancement of "harmonious and cooperative relations" between Indigenous peoples and states. All of this supports the conclusion that the Declaration Act's chosen method of achieving alignment is through legislative reconciliation, not adjudication of claims of inconsistency. [233] Another contextual feature arises from the preambulatory statement in UNDRIP that the situation of Indigenous

peoples "varies from region to region and from country to country" and that there are significant "national and regional particularities" and a variety of "historical and cultural backgrounds" amongst Indigenous peoples in signatory states. In Canada, Aboriginal and treaty rights are affirmed in s. 35 of the Constitution Act. Canada has a robust legal system allowing for the litigation of Aboriginal and treaty rights claims. There are two features of this system that are particularly relevant for current purposes. [234] First, the very existence of this robust legal system suggests the adoption of UNDRIP as part of the positive law of British Columbia was never intended to create an entirely separate system for adjudicating Indigenous rights claims. It would make little sense to read s. 3 of the Declaration Act as establishing an entirely separate route for the adjudication of Indigenous rights, by litigating claims of inconsistency between British Columbia's laws and UNDRIP. This lends even further support to the conclusion that the Declaration Act's chosen method of achieving consistency between provincial law and UNDRIP is through legislative reconciliation, not adjudication. [235] Second, there is the oft-repeated acknowledgment of Canadian courts that litigation, while sometimes unavoidable and indeed essential to the recognition and protection of Aboriginal rights, is not

the most constructive route to reconciliation. It has been said that true reconciliation is "rarely, if ever, achieved in courtrooms" (Clyde River (Hamlet) at para. 24), and "often demands judicial forbearance" to "leave space for the parties to govern together and work out their differences" (First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 at paras. 4, 33). These sentiments provide context for interpretation of the government's obligation in s. 3 of the Declaration Act to work "[i]n consultation and cooperation" with Indigenous peoples to bring British Columbia's laws into alignment with UNDRIP. [236] A final contextual factor is revealed through the positions taken by the parties in this appeal. Although both the appellants and the respondents made lengthy submissions on the topic of inconsistency generally, none of them undertook a detailed, text-based analysis of specific UNDRIP articles. The Gitxaala and Ehattesaht assert that the Mineral Claims Regime is inconsistent with a number of specific articles, but focused their oral submissions on article 32(2), which requires states to "consult and cooperate" with Indigenous peoples "in order to obtain their free and informed consent" prior to the approval of any "project" affecting their "lands or territories and other resources", including "mineral" resources. However, while relying upon article 32(2) to press their

argument on inconsistency, the appellants also assert that it is undesirable for the court to pronounce on its precise meaning and application. They simply urge this Court to make a finding of inconsistency, leaving it to the parties to grapple with the full meaning of article 32(2) in subsequent consultation. [237] For my part, I do not believe it would be possible or appropriate to make a finding of inconsistency without a careful consideration of the text of article 32(2), and its application in the context of asserted but unproven territorial claims. Further, the inconsistency analysis would be incomplete without a consideration of article 46, which is an internal limits clause, at least some elements of which are roughly analogous to the reasonable limits provision found in s. 1 of the Canadian Charter of Rights and Freedoms. (It has been noted that commentary on the proper approach to interpretation of UNDRIP seldom involves "meaningful (or any) discussion of how the substantive provisions within UNDRIP interact with the interpretation and limitations clauses in Article 46": Dwight Newman, "Interpreting FPIC in UNDRIP" (2019), 27 Int'l J. Minority & Group Rights 233 at 235.) [238] In this context, this Court should be reluctant to wade into the interpretation of specific UNDRIP articles, which in my view would be a necessary step in the exercise of determining whether

there is any inconsistency between UNDRIP and a particular British Columbia law. It would be unwise to undertake this exercise without the benefit of submissions of the parties on the actual text and proper application of the articles in issue. What is more, the appellants have signalled that judicial commentary on the scope and meaning of specific UNDRIP articles could be counterproductive in subsequent consultations. Thus, the appellants themselves urge judicial forbearance, leaving space for the parties to find common ground through consultation. [239] I conclude, based on its legislative purpose, text, and context, that s. 3 of the Declaration Act does not contemplate a role for the courts in adjudicating claims of inconsistency between UNDRIP and specific British Columbia laws. Rather, s. 3 imposes a statutory duty on the government, working in consultation and cooperation with Indigenous peoples, to take all measures necessary to ensure alignment between provincial laws and UNDRIP, as an exercise in legislative reconciliation. Because this interpretation of s. 3 of the Declaration Act advances the objective of bringing the province's laws into alignment with UNDRIP as contemplated by the Legislature, it construes s. 3 in a manner that maximizes its consistency with UNDRIP, as required under s. 8.1(3) of the Interpretation Act. Justiciability [240] The doctrine of justiciability has been described as "a set of judge-made rules, norms and principles delineating the scope of judicial intervention in social, political, and economic life": Sossin at 7, cited with approval in Highwood Congregation at para.

33. Justiciability depends to some extent on context, and the doctrine must be applied flexibly: Highwood Congregation at para. 34. [241] One of the relevant considerations in deciding whether a matter is suitable for adjudication in the courts is whether some "other administrative or political body has been given prior jurisdiction of the matter by statute": Highwood Congregation at para.

34. Thus, in some contexts, determining justiciability may become a question of discerning and giving effect to the will of the legislature that the subject matter is properly dealt with in some forum other than a court. [242] Subject to constitutional constraints, it is the legislature's prerogative to "make its intention known as to the role that courts are to play in interpreting, applying and enforcing its statutes": Canada (Auditor General) at 91. Thus, a court that interprets a statute as not allowing for the adjudication of a particular matter is giving effect to the legislature's view of the justiciability of that matter. In this context, the matter is non-justiciable not because of the court's own view of "the appropriateness of its intervention", but because the legislature is taken to have resolved that the matter is not a proper subject for the court's adjudication: Canada (Auditor General) at 91-92. [243] In such a context, the court's "primary concern" will be to "retain its proper role within the constitutional framework of our democratic form of government": Reference re Canada Assistance Plan (B.C.) at 545. Thus, a court may refrain from answering a question that would require it to stray beyond the role of the judicial branch of government within the framework of our constitutional democracy: Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 26,

1998 CanLII 793. [244] These principles resonate in the present case. Section 3 of the Declaration Act gives the government, in consultation and cooperation with Indigenous peoples, a statutory mandate and duty to embark upon what is effectively a law reform exercise. Sections 4 and 5 assign the responsibility for oversight and accountability over this process to the Legislature itself. Thus, the executive branch is responsible for taking all measures necessary to make the province's laws consistent with UNDRIP, and the legislative branch retains ultimate responsibility for the end result. [245] Legislative reconciliation is fundamentally a matter of law reform within the purview of the executive and legislative branches of government. Making judicial pronouncements on inconsistency between UNDRIP and specific British Columbia laws would take the court outside its proper role in our constitutional democracy. The court would be inserting itself into the law reform process. [246] The present appeal bears some similarity to the situation considered in Friends of the Earth. In that case, a public interest group brought a petition for judicial review challenging the federal government's failure to: (i) prepare a climate change action plan as mandated under the Kyoto Protocol Implementation Act, S.C. 2007 c. 30; and (ii) make the necessary regulatory changes to meet Canada's

commitments under the Kyoto Protocol. The petition judge held that the while the statutory duty to prepare a climate change action plan "may well be justiciable", an "evaluation of its content was not": Friends of the Earth at para. 34. [247] The petition judge addressed the question of justiciability as a matter of statutory interpretation, asking whether Parliament intended the statutory duties imposed on the executive to be "subjected to judicial scrutiny and remediation": Friends of the Earth at para.

32. He answered that question in the negative. The decision was upheld on appeal, in a brief endorsement: Friends of the Earth v. Canada (Environment), 2009 FCA 297, leave to appeal ref'd, [2009] S.C.C.A. No. 497. (The Kyoto Protocol Implementation Act was later repealed, but this does not affect the soundness of the Court's justiciability analysis.) [248] The following passage from the petition judge's decision is particularly relevant: [35] There are other reasons for not construing the words in section 5 "to ensure that Canada meets its [Kyoto] obligations" as creating justiciable duties. The Act contemplates an ongoing process of review and adjustment within a continuously evolving scientific and political environment. It refers to cooperative initiatives with third parties including provincial authorities and industry. These are not matters that can be completely controlled by the Government of Canada such that it could unilaterally ensure Kyoto compliance within any particular timeframe. The Act also recognizes that the implementation of any given Climate Change Plan may not be fully accomplished in any given year. This is the obvious purpose of paragraph 5(1)(f), which allows for a failure to implement any of the required remedial measures for ensuring Kyoto compliance in a given year. Any such failure must be explained by the Minister in the succeeding Climate Change

Plan to be tabled in Parliament, but it is implicit in this provision that strict compliance with the Kyoto emission obligations in the context of any particular Climate Change Plan is not required by section 5. [Underlining added.] [249] Although the subject matter in issue is fundamentally different, there are some obvious parallels between the framework of the legislation in issue in Friends of the Earth and the framework of the Declaration Act. Both statutes recognize and implement Canada's commitments under an international instrument; require the government to take measures to ensure consistency or compliance with the international instrument; require consultation and cooperation with interested parties outside the government; contemplate an ongoing exercise not expected to be accomplished within a set period of time; and include mechanisms for oversight and accountability to the legislature. [250] I conclude that the question of inconsistency between UNDRIP and specific British Columbia laws at any fixed point in time is not a justiciable matter. This is a function of the Legislature's intent in enacting the Declaration Act as a framework for legislative reconciliation, which is a form of law reform within the domain of the executive and legislative branches. [251] I do accept, as did the judge, that a failure by the government to act on the specific duties imposed under

the Declaration Act may well be a justiciable matter. I see no reason why questions about whether the government has failed to consult with Indigenous people as contemplated under s. 3 of the Declaration Act, or otherwise failed to meet its statutory obligation to take all measures necessary to ensure the consistency of British Columbia's laws with UNDRIP, would be non-justiciable. These are specific and cognizable statutory duties, adjudication of which would involve no impermissible intrusion on the executive or legislative branches of government. One would expect the government to act upon these statutory duties in keeping with the honour of the Crown. [252] However, I agree with the judge that no such issue arises in this case. [253] There is no suggestion in the petition record that anyone from the government undertook any form of consultation with impacted Indigenous peoples about the rights, standards, or goals recognized in UNDRIP prior to the granting of mineral claims under the existing regime. However, on the judge's findings, this failure would appear to be a function of where the government 'drew the line' on consultation more generally. [254] To explain, prior to the judge's ruling, the government took the position that the issuance of mineral claims under Part 2 of the Mineral Tenure Act did not impact outstanding Aboriginal rights claims, and that consultation

was only required before the issuance of mineral leases under Part 3 of the Mineral Tenure Act. It is therefore unsurprising that the government also undertook no consultation with Indigenous peoples to ensure consistency between the Mineral Claims Regime and UNDRIP. [255] I see no reason to expect that the government, having now been corrected by the judge on where the consultation line is to be drawn, would fail to consult with affected Indigenous peoples, with a view to pursuing all measures necessary to ensure consistency between the new Mineral Claims Regime and UNDRIP. Thus, the judge's declaration that the Crown has a s. 35 duty to consult is, in the context of this particular litigation, sufficient on its own to ensure that the government lives up to its statutory responsibilities under the Declaration Act. Conclusion [256] I would dismiss the appeals. "The Honourable Justice Riley" Appendix A Schedule (Section 1) United Nations Declaration on the Rights of Indigenous Peoples Resolution adopted by the General Assembly [without reference to a Main Committee (A/61/L.67 and Add.1)] 61/295. United Nations Declaration on the Rights of Indigenous Peoples The General Assembly, Taking note of the recommendation of the Human Rights Council contained in its resolution 1/2 of 29 June 2006,1 by which the Council adopted the text of the United Nations Declaration on the Rights of

Indigenous Peoples, Recalling its resolution 61/178 of 20 December 2006, by which it decided to defer consideration of and action on the Declaration to allow time for further consultations thereon, and also decided to conclude its consideration before the end of the sixty-first session of the General Assembly, Adopts the United Nations Declaration on the Rights of Indigenous Peoples as contained in the annex to the present resolution. 107th plenary meeting 13 September 2007 1 See Official Records of the General Assembly, Sixty-first Session, Supplement No. 53 (A/61/53), part one, chap. II, sect. A. Annex United Nations Declaration on the Rights of Indigenous Peoples The General Assembly, Guided by the purposes and principles of the Charter of the United Nations, and good faith in the fulfilment of the obligations assumed by States in accordance with the Charter, Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such, Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind, Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious,

ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust, Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind, Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests, Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources, Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States, Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring to an end all forms of discrimination and oppression wherever they occur, Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and

strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs, Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment, Emphasizing the contribution of the demilitarization of the lands and territories of indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world, Recognizing in particular the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child, Considering that the rights affirmed in treaties, agreements and other constructive arrangements between States and indigenous peoples are, in some situations, matters of international concern, interest, responsibility and character, Considering also that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States, Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights2 and the International Covenant on Civil and Political Rights,2 as

well as the Vienna Declaration and Programme of Action,3 affirm the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development, 2 See resolution 2200 A (XXI), annex. 3 A/CONF.157/24 (Part I), chap. III. Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in conformity with international law, Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith, Encouraging States to comply with and effectively implement all their obligations as they apply to indigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned, Emphasizing that the United Nations has an important and continuing role to play in promoting and protecting the rights of indigenous peoples, Believing that this Declaration is a further important step forward for the recognition, promotion and protection of the rights and freedoms of indigenous peoples and in the development of relevant

activities of the United Nations system in this field, Recognizing and reaffirming that indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples, Recognizing that the situation of indigenous peoples varies from region to region and from country to country and that the significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration, Solemnly proclaims the following United Nations Declaration on the Rights of Indigenous Peoples as a standard of achievement to be pursued in a spirit of partnership and mutual respect: Article 1 Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights4 and international human rights law. 4 Resolution 217 A (III). Article 2 Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity. Article 3 Indigenous peoples have the

right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 4 Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. Article 5 Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State. Article 6 Every indigenous individual has the right to a nationality. Article 7 1. Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.

2. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group. Article 8 1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of forced assimilation or integration; (e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them. Article 9 Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right. Article 10 Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return. Article 11 1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.

2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs. Article 12 1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.

2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned. Article 13 1. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.

2. States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means. Article 14 1. Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.

2. Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination.

3. States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language. Article 15 1. Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information.

2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society. Article 16 1. Indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination.

2. States shall take effective measures to ensure that State-owned media duly reflect indigenous cultural diversity. States, without prejudice to ensuring full freedom of expression, should encourage privately owned media to adequately reflect indigenous cultural diversity. Article 17 1. Indigenous individuals and peoples have the right to enjoy fully all rights established under applicable international and domestic labour law.

2. States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development, taking into account their special vulnerability and the importance of education for their empowerment.

3. Indigenous individuals have the right not to be subjected to any discriminatory conditions of labour and, inter alia, employment or salary. Article 18 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions. Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. Article 20 1. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.

2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress. Article 21 1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.

2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities. Article 22 1. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration.

2. States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination. Article 23 Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions. Article 24 1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health services.

2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right. Article 25 Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard. Article 26 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. Article 27 States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples' laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process. Article 28 1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress. Article 29 1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.

2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.

3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented. Article 30 1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.

2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities. Article 31 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights. Article 32 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact. Article 33 1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.

2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures. Article 34 Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards. Article 35 Indigenous peoples have the right to determine the responsibilities of individuals to their communities. Article 36 1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.

2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right. Article 37 1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements. Article 38 States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration. Article 39 Indigenous peoples have the right to have access to financial and technical assistance from States and through international cooperation, for the enjoyment of the rights contained in this Declaration. Article 40 Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights. Article 41 The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Ways and means of ensuring participation of indigenous peoples on issues affecting

them shall be established. Article 42 The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration. Article 43 The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world. Article 44 All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals. Article 45 Nothing in this Declaration may be construed as diminishing or extinguishing the rights indigenous peoples have now or may acquire in the future. Article 46 1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

2. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.

3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.