Aboriginal and Indigenous Law: Recent developments of importance

This year’s update will consider two emerging issues: the status of the United Nations Declaration on the Rights of Indigenous Peoples in Canadian law, and the interaction between Aboriginal title and fee simple property interests.

The status of the United Nations Declaration on the Rights oF Indigenous Peoples

This year, two important decisions considered how the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) should inform Canadian law: Kebaowek v. Canadian Nuclear Safety Commission, 2025 FC 319 (“Kebaowek”) and Gitxaala v British Columbia (Commissioner of Gold), 2025 BCCA 430 (“Gitxaala”).  

First, a bit of context: since 2016, when Canada announced that it would support UNDRIP “without qualification,” British Columbia (2019)^[1], Canada (2021^)[2] and the Northwest Territories (2023) have passed very similar laws to give it effect.^[3]   Importantly, all  three laws have a purpose provision that affirms UNDRIP as having application to the laws of that jurisdiction.^[4]  In 2024, the Supreme Court of Canada interpreted this part of the federal Act as having “incorporated [UNDRIP] into the country’s positive law.”^[5]  All three laws also commit the government of their respective jurisdictions to take measures necessary to ensure the laws of that jurisdiction are consistent with UNDRIP,^[6] and to prepare and implement an action plan to achieve the objectives of the declaration.^[7] 

The first important decision of the year on the status of UNDRIP and the effect of these implementing laws is Kebaowek,^[8] a judicial review of a decision of the Canadian Nuclear Safety Commission (“CNSC”) to approve an application to allow a near-surface nuclear disposal facility at Chalk River within Kebaowek First Nation’s territory.  For the past 75 years, the site has been used as a temporary storage site for nuclear waste. The proposed facility would permanently dispose of the existing waste at the site, as well as allow more low-level nuclear waste to be stored there in a manner more aligned with modern standards.

Kebaowek argued that as a result of the federal United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021 c 14 (“the federal UNDRIP Act”), the CNSC had an obligation to secure their free, prior and informed consent pursuant to UNDRIP before approving the project, and that this obligation also informed what it meant for the CNSC to satisfy its duty to consult and accommodate them.

The Federal Court held that the CNSC had jurisdiction to consider UNDRIP and erred in failing to do so.^[9]  As a result of the federal UNDRIP Act, UNDRIP now attracted the “presumption of conformity” – a presumption that both statute law and the Constitution, including s. 35 rights, should be interpreted to the extent possible in a manner that is consistent with UNDRIP.^[10]

The key provision of UNDRIP at issue is 29(2), which requires states to obtain the free, prior and informed consent of Indigenous peoples before allowing the storage or disposal of hazardous materials in their territories.^[11] The Court found that applying this provision to the duty to consult “requires an enhanced and more robust process to ensure that consultation processes were tailored to consider Kebaowek’s Indigenous laws, knowledge, and practices, and that the process was directed towards finding mutual agreement.”^[12]

The second important case of the year is Gitxaala, a challenge to the “free entry mining” system under British Columbia’s Mineral Tenure Act, RSBC 1996, c 292.  Under this system, “free miners” are allowed to register claims to mineral rights on Crown lands without any consultation with the First Nations in whose territories those claims are located.  Once a claim is registered, it entitles the holder of the claim to conduct exploratory activities. Two First Nations, Gitxaala and Ehattesaht, argued that this system was both a breach of the duty to consult and inconsistent with UNDRIP.

The BC Court of Appeal agreed, finding that British Columbia’s Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 (“the BC DRIP Act”) had incorporated UNDRIP into the positive law of British Columbia with immediate effect and the free entry mining system was inconsistent with both the duty to consult and UNDRIP.

Along the way to this conclusion, the Court of Appeal offered a principled and careful analysis of how UNDRIP fits into the domestic law of Canada.

First, the Court noted that there are a number of sources of international legal obligations.  One source is treaties or conventions—that is, formal agreements concluded between states with the intention of establishing legal rights.  Treaties are binding instruments of international law, but become domestic law only when executed into law through legislation. A second source is customary law—the common law of the international legal system, which arises from general, consistent and widespread state practices that become both widely accepted and understood as obligatory. Unlike treaties, absent conflicting legislation, customary international law is automatically incorporated into Canadian law and given direct effect without the need for legislation.  Finally, there is “soft law”, such as declarations or resolutions of the General Assembly. These may be evidence of an emerging customary norm, but they are not binding international law in their own right.^[13]

The Court observed that Canadian law has long recognized something called the “presumption of conformity”, which holds that domestic law (including both statute and constitutional law) should be interpreted in a manner that is consistent with binding international law.^[14] This presumption applies to all binding international law, regardless of whether it has been implemented into domestic law by statute, and regardless of whether it arises from treaty or custom.^[15]  Although UNDRIP is a General Assembly resolution, and therefore is not formally binding like a treaty or convention, some of its provisions overlap with international law rights that are either enshrined in binding treaties that Canada has ratified, or have become so well-accepted as to form part of customary international law, such as the right to self-determination.^[16]

Second, the Court held that the legal effect of the federal UNDRIP Act and the BC DRIP Act was to make UNDRIP part of Canadian law, triggering a presumption that domestic enactments will be interpreted in a manner consistent with UNDRIP.^[17]  Alongside this, the Court noted language in the BC Interpretation Act requires BC laws to be interpreted in a manner consistent with UNDRIP, which the Court found created “a rebuttable presumption of consistency between BC statutes and UNDRIP, akin to the common law presumption of conformity”.^[18]

Drawing from these principles, the Court concluded 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.^[19]

The Court was clear that the status of the right enshrined in UNDRIP – whether it reflects a binding right or more aspirational norm – may impact how the presumption of conformity operates. Where there is a binding right at issue, an enactment must be read to conform to it, but where there is only an aspiration, the “margin of appreciation is greater, and general harmony will suffice for consistency to be achieved.”^[20]

Both Kebaowek and Gitxaala clearly support the proposition that in the three jurisdictions with implementing legislation, UNDRIP triggers a presumption of conformity, such that statutes and s. 35 of the Constitution Act should generally be interpreted in a manner consistent with the rights it enshrines. 

Gitxaala also suggests UNDRIP will also have interpretive force in other provinces and territories even if they have not yet passed any implementing legislation.  Following the Court of Appeal’s reasoning, at least some UNDRIP provisions—including core rights like the right of self-determination—are already binding at international law. Consistent with established jurisprudence which holds that Canada’s constitution should be read to provide at least the level of protection of the human rights instruments that Canada has ratified, ^[21] UNDRIP articles that form part of convention law or customary international law should become a floor for how the courts interpret s. 35 and its doctrines. 

Both decisions are currently under appeal. Kebaowek was heard by the Federal Court of Appeal this year and is currently under reserve.  British Columbia has sought leave to appeal Gitxaala to the Supreme Court of Canada and is also contemplating legislative changes to the BC UNDRIP Act.  We can therefore expect more appellate guidance on these important issues soon.

Aboriginal title and fee simple property

The second important development in Aboriginal law last year is the emergence of inconsistent case law on the interaction between Aboriginal title and fee simple property interests.

In Cowichan Tribes, the British Columbia Supreme Court declared that the Cowichan Tribes had Aboriginal title to a small portion of what is now Richmond, BC, including areas which were owned in fee simple by Canada and the City of Richmond.  Carefully applying settled principles of law, the Court concluded that these fee simple grants did not extinguish the Cowichan’s Aboriginal title but instead were an unjustified infringement of that title. With limited exceptions, the Court declared the fee simple title held by Richmond and Canada invalid. In relation to other fee simple properties in the claim area, the court held the Crown was now under a duty to negotiate to reconcile the competing interests of fee simple title holders and the Cowichan Tribes.^[22]  

On the other hand, in Wolastoqey Nation, applying a novel test and without mentioning the decision in Cowichan, the New Brunswick Court of Appeal held that Aboriginal title could not attach to land held in fee simple at all.  Like the First Nations plaintiffs in Cowichan, the Wolastoqey do not seek to repossess all of their claim area. They are only seeking to repossess the lands currently held by the Crown and those held by five large scale industrial landowners (referred to in the claim as “Industrial Defendants”).  Unlike First Nations plaintiffs in Cowichan, however, their claim is still at the earliest stages: statements of defence have not yet been filed. The Industrial Defendants and the Province of New Brunswick brought preliminary motions to strike the claim with respect to fee simple land on the grounds that it failed to disclose a reasonable cause of action.

At first instance, the motions judge held that a declaration of Aboriginal title could issue over all fee simple land in the claim area. But she nonetheless removed the Industrial Defendants as Defendants to the claim^[23]  because she concluded that  Aboriginal title arises out of a sui generis constitutional relationship with the Crown and so any declaration would be made against the Crown alone.^[24] She held that this did not mean that the Wolastoqey would necessarily be prevented from repossessing the Industrial Defendants’ land if a declaration of Aboriginal title was issued against the Crown at the end of the trial.  It is just that the process would be mediated by the Crown, who would be called on to “negotiate and reconcile” the different interests at play.^[25] Should the process of reconciliation fail and the trial judge determine that a remedy of repossession of fee simple lands would be appropriate, the judge observed that the Crown may be directed to expropriate the fee simple lands, and compensate the fee simple property owners.^[26]

On appeal, the New Brunswick Court of Appeal agreed with the motions judge that Aboriginal title claims could only be brought against the Crown but found that the court lacked the jurisdiction to make a declaration that would impact private parties’ lands without their participation.^[27] 

The Court went on to characterize a declaration of Aboriginal title as a “discretionary remedy”, and articulated what it called four “conditions precedent” for such a declaration to be made: A finding of Aboriginal title; satisfaction of the criteria in Ewert for a declaration to issue; the absence of a valid defence; and no resulting injustice.^[28] This approach is novel – certainly, the Supreme Court of Canada did not apply this four part framework before granting a declaration of Aboriginal title in Tsilhqot’in.^[29]

The Court of Appeal also noted that “no court would exercise its discretion in favour of a declaration of Aboriginal title” over the Industrial Defendants’ land because (a) they had been released from the claim as defendants; (b) the claim for Aboriginal title was irreconcilable with fee simple title; and (c) there was no allegation in the statement of claim that they had committed any actionable wrong against the Wolastoqey.^[30]

These two cases are fundamentally inconsistent and their reasoning is incompatible.  Eventually, the Supreme Court of Canada will likely need to weigh in to resolve this. Wolastoqey Nation has applied for leave to appeal the decision of the New Brunswick Court of Appeal, so this resolution may come soon.

For non-Indigenous Canadians who are watching these cases get litigated in the headlines, it is important to remember what an approach like the one taken by the New Brunswick Court of Appeal really means. In New Brunswick and much of British Columbia, First Nations’ territories— including their village sites, ceremonial places, hunting grounds and burial sites-- were taken from them without their consent.  This happened in part because of a legal fiction that the land into which settlers were arriving was “terra nullius” even though First Nations had managed, used and governed it for thousands of years. As the Truth and Reconciliation Commission pointed out, this fiction is rooted in a fundamentally racist belief that Indigenous peoples are less than Euro-Canadians.^[31] To adopt a novel doctrinal approach that requires First Nations’ title in their lands to give way to fee simple title in every circumstance, as the New Brunswick Court of Appeal did, foreclosing any possibility of a case-by-case consideration of the relative equities and interests at stake, sends a strong signal that our courts continue to take the view that First Nations’ interests in their lands are fundamentally less important that those of settler Canadians. In my view, this is incompatible with any view of reconciliation and with the constitutional protection that is supposed to be afforded to Aboriginal title.

It is also important to remember that the Crown has all the tools it needs to resolve this issue by prioritizing negotiating just resolutions to Aboriginal title claims that protect fee simple property owners while recognizing co-existing Aboriginal title. For example, Canada and British Columbia have negotiated agreements to recognize the Haida Nation holds Aboriginal title to Haida Gwaii, but the parties have agreed that fee simple property owners within the title area will retain their rights within this title area. 

This article was provided by Olthuis Kleer Townshend LLP