BURST
After a landmark B.C. Court of Appeal decision last December that made the UN Declaration on the Rights of Indigenous Peoples enforceable in provincial law, First Nations have launched suits using the ruling to argue against government decisions in mining, forestry and energy.
In a petition filed last month, the Lower Similkameen Indian Band is seeking to quash an expansion of Hudbay Mineral’s Copper Mountain Mine in the southern Interior, arguing a permit was granted without adequate consultation.
The First Nation says the decision must be set aside and a declaration issued to ensure its constitutional rights are protected pursuant to UNDRIP and B.C.’s Declaration of the Rights of Indigenous Peoples Act.
In outlining the need for deeper consultation, the First Nation cites several legal precedents including a B.C. Appeal Court decision where the Gitxaala First Nation won a ruling that found the province’s open-entry mineral claims system was inconsistent with the B.C. government’s implementation of UNDRIP.
“The Declaration Act constitutes a solemn promise by the provincial Crown to act as though the legal rights, obligations, principles, minimum standards and goals expressed in UNDRIP, as they relate to Indigenous Peoples, apply to British Columbia law, including the common law. This must inform the duty to consult,” says the Lower Similkameen’s petition, in reference to the Gitxaala decision.
The province hasn’t responded in court to the suit.
The Mining Ministry referred questions about the case to the B.C. attorney general’s office, which said it couldn’t comment on the case while it was before the courts.
B.C. Premier David Eby, who had said initially there would need to be amendments to provincial laws because of the Gitxaala decision, has since stepped back from that position and even dropped the idea of suspending key sections of the Act for three years while exploring changes.
Instead, the premier has agreed to leave the province’s Declaration Act as is , with the province and Indigenous leaders agreeing to “work together on a path forward to discuss and consider the government’s stated concerns.”
Hudbay Minerals, which owns the Copper Mountain Mine, didn’t immediately respond to questions on the suit filed by the Lower Similkameen Indian Band.
Michael Goehring, president and CEO of the Mining Association of B.C., said economic reconciliation with First Nations is a core value of the mining sector and partnerships have provided benefits, but added they are concerned about uncertainty following the Gixaala decision.
He said it was incumbent on the B.C. government to restore certainty and clarity to support investment and mine development.
“This unfortunately comes at a time when mining and critical minerals development represent a once-in-a-lifetime economic development opportunity for all British Columbians,” Goehring said.
In another suit filed in February, the ’Wuìk̓inux̌v Nation is seeking to quash a three-year extension to a timber harvesting licence held by Interfor on the Central Coast, on the tip of Vancouver Island.
The ’Wuìk̓inux̌v also say they weren’t adequately consulted and quote the Gitxaala decision.
UNDRIP applies to B.C. laws and “should inform the interpretation of the common law duty to consult that arises with provincial decision-making and conduct,” says their court filing.
The province hasn’t responded in court to that case. The B.C. Forests Ministry also referred questions about the suit to the A-G’s office, which said it couldn’t comment.
Interfor said it’s aware of the ’Wuìk̓inux̌v Nation’s petition.
“The parties have agreed to keep the petition in abeyance and no deadlines have been set for delivery of response materials or a hearing,” said Interfor spokeswoman Svetlana Kayumova.
In a third lawsuit, the Lil’wat Nation and the Rockford Energy Corp., of which the First Nation is a majority owner, is trying to increase the price B.C. Hydro pays it for electricity from a run-of-the-river hydro project south of Whistler.
Again, the Lil’wat are arguing they haven’t been properly consulted, and cite a breach of the Declaration Act, noting that the Gitxaala ruling “incorporates the United Nations Declaration on the Rights of Indigenous Peoples Act … into the positive law of British Columbia.“
In responses filed in court, the province and B.C. Hydro rejected the Lil’wat’s arguments.
The province said the Lil’wat hadn’t met the threshold needed to argue an alleged breach of duty to consult and a breach of the Declaration Act.
B.C. Hydro said that while the Lil’wat seek a remedy of an improved commercial contract with Rockford, that has no connection to the claim of inadequate consultation with the First Nation.
Eby has said that more than 20 notices of claim, or other legal claims, against the province have already been amended after the Gitxaala ruling . He has said this showed the need to amend the legislation as it was having real-world impacts.
Postmedia News asked the A-G’s office this week for a list of the 20-plus amended lawsuits, but it wouldn’t supply one.
“We are aware of legal claims that reference, or have been amended to reference, the Gitxaala B.C. Court of Appeal decision or reasoning. However, we cannot comment on which individual claims may fall under this description, as it falls under solicitor-client privilege,” the ministry said in an email sent by communications manager Alessandra Vinhas.
Postmedia didn’t ask the ministry to betray solicitor-client privilege, only to provide a list of amended cases. Normally, solicitor-client privilege solely extends to legal advice or confidential communications between lawyers and clients.
However, when asked for an explanation, the A-G’s office claimed i nformation identifying specific claims is subject to solicitor-client privilege.
Postmedia searched the names of B.C.’s more than 200 First Nations in provincial online court records and was unable to find any amendments to existing cases against the government related to the Gitxaala decision published Dec. 5, 2025.
The A-G’s office said not all records are filed with the court registry if parties opt for out-of-court resolutions, when asked why Postmedia’s search turned up no amended cases. However, under those circumstances, plaintiffs wouldn’t have filed an amended claim in court.
It’s also possible that amended suits have been filed in the names of First Nations’ businesses or development corporations, or in the names of individuals from First Nations, such as chiefs. There may also be claims outside the court system.
In response to a query, the B.C. Assembly of First Nations said they’re aware of the amended cases generally but couldn’t share the information because it was shared with them confidentially.
The B.C. government has filed an application to appeal the Gitxaala decision to the Supreme Court of Canada . The high court hasn’t made a decision yet.