Updated: April 3, 2023
Gitxaala Nation v. Chief Gold Commissioner of B.C. et al. and Ehattesaht First Nation v. His Majesty the King in right of B.C. et al. have the potential to set important precedents about the rights of First Nations in B.C., including whether the Declaration Act establishes enforceable rights.
Both Gitxaala Nation and Ehattesaht First Nation have filed legal challenges to B.C.’s Mineral Tenure Act. Their legal challenges concern the process used by the Government of B.C. to grant mineral claims on territories over which the Nations claim rights and title. Currently, mineral claims are granted via an online system. This process does not include consultation with First Nations who have asserted rights and title over the territory where the claim is staked. Both First Nations are seeking a judicial review of this process and certain mineral claims granted through it. They argue, amongst other things, that the Declaration Act provides a legal right for First Nations to be consulted before claims are granted. The cases are currently being heard by the BC Supreme Court with hearings set to conclude on May 5, 2023.
Leave to intervene
The Declaration Act was passed into law in November 2019 and affirms the application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to the laws of British Columbia. B.C.’s Declaration Act is historic legislation, critical to decolonization and reconciliation in the province.
The cases brought by Gitxaala Nation and Ehattesaht First Nation are among the first to rely on and test the Declaration Act. The Commissioner applied for leave to intervene in December 2022 and was granted intervenor status on January 6, 2023. Court hearings began on April 3, 2023 and the intervention argued that the Declaration Act is legally enforceable legislation and should be interpreted as quasi-constitutional human rights legislation.
A key part of my mandate is to promote compliance with international human rights law in B.C., including UNDRIP. I believe this litigation is critical to that mandate and to the future of human rights—and specifically Indigenous rights—in this province.”Kasari Govender, B.C.’s Human Rights Commissioner
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B.C.’s Human Rights Commissioner is granted intervenor status in cases that will test B.C.’s Declaration Act in court for the first time
January 6, 2023
B.C.’s Human Rights Commissioner applies for intervenor status in cases that could set important precedent for the interpretation of B.C.’s Declaration Act
December 15, 2022
The Commissioner can apply to intervene in court cases that have the potential to make a significant impact on human rights across B.C. If the Commissioner’s request to intervene is approved by the court, intervenors provide submissions (also called legal arguments) to the judge or decision maker in a case. Intervenors do not represent either side in a case. Intervenors’ submissions must be different from the arguments being made by the parties to the case, and submissions must not advocate for either side to win or lose. Intervenors’ arguments are usually about how to interpret a narrow point of the law. Interventions can impact how the law evolves, making them an important tool in systemic work to promote and protect human rights. The Commissioner also has the right to intervene in cases at the BC Human Rights Tribunal.