By Mary Eberts, Joyce Green and Alison Poste

Op-Ed Commentary

Apparently, provincial and federal governments in Canada have difficulty understanding and respecting the rights of First Nations people.

If Canada’s push for development, meant to safeguard our sovereignty, is to succeed, governments must learn to understand and respect these rights. That time is now.

Consider the situation in British Columbia. Two recent court decisions in B.C. are said to have created “uncertainty” around land title, mineral rights, permitting systems, local governance, and regulatory frameworks. We feel this language of uncertainty may be another way of expressing opposition to a strong interpretation of Indigenous rights, including the Declaration on the Rights of Indigenous Peoples (DRIPA) passed unanimously by the provincial legislature in 2019.

In Gitxaała v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430, the BC Court of Appeal ruled that DRIPA incorporates the guarantees of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP, or the Declaration) into B.C. law, with immediate legal effect. The decision held that certain provisions of the Mineral Tenure Act of BC were inconsistent with DRIPA and UNDRIP.

Despite its clear foundation in statute, B.C. has chosen to appeal Gitxaała to the Supreme Court of Canada. Also under appeal, to the Court of Appeal of BC, is the landmark 2025 decision of the BC Supreme Court, Cowichan Tribes v. Canada (Attorney General), recognizing Aboriginal title as a “prior and senior right” to the subject lands held in fee simple.

Unlike Gitxaała, this decision does not depend on DRIPA as the source of the right. Rather, it is grounded in constitutional authority, title doctrine, and the historical record demonstrating the occupation and exclusive use of the subject lands at the time of asserted Crown sovereignty.

Canada’s historically tentative adoption of UNDRIP provides a clear signal to Indigenous Nations and peoples. While we acknowledge that there are important unresolved questions about the interpretation of DRIPA and UNDRIP, we can no longer pretend that either are merely “aspirational.”

Anishinaabe legal scholar John Borrows makes it clear that Indigenous law is not mere historical background or cultural context: it is law. Section 35 of the Constitution Act,1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. These rights are not contingent on whether such recognition creates comfort, delay, or difficulties for dominant institutions and actors. Nor can these rights be introduced into a process as an afterthought after decisions have been effectively made.

We remind all parties that “certainty” was not a feature of the “old” system, before UNDRIP or DRIPA. To the extent that certainty existed, it was a particular kind of certainty, produced by the unequal distribution of political, economic, and legal power between institutions of the settler state on the one hand, and Indigenous peoples and Nations on the other. DRIPA seeks to resolve rather than contribute to these uncertainties.

The recognition that Indigenous rights existed prior to Canada’s assertion of sovereignty was the beginning of the end of that so-called certainty. The implications could not be clearer: where governments fail to meet their constitutional obligations, projects will become vulnerable to litigation, delay, loss of legitimacy, and perhaps most consequentially, the permanent loss of trust from the electorate and Indigenous communities.

Rather than framing the problems as uncertainty about legal requirements, let us acknowledge that there is outright disagreement between Indigenous rights-holders, corporate agents, and the non-Indigenous political elite. Resolving that disagreement in a manner consistent with UNDRIP and the Canadian Constitution must be an important national priority, and must take account of Indigenous positions in a meaningful way.

Canada’s Bill C-5, the Building Canada Act grants the federal Cabinet authority to fast- track major infrastructure projects by bypassing environmental and other regulatory protections for projects deemed to be in the national interest.

Notably, the bill also gives the government the power to supersede current statutory protections, including environmental laws and the Indian Act. Prior to its approval, First Nations registered their strong opposition to the lack of consultation, pointing out the disconnect between Bill C-5’s rapid approval process and the requirements of FPIC (Free, Prior and Informed Consent).

Courts have held that FPIC does not give First Nations a veto over government projects, nor can it be satisfied through superficial consultation. It requires a deep structured consultation process aimed at mutual agreement. To be clear, First Nations opponents of Bill C-5 do not object solely to the lack of consultation before the bill was introduced.

With the announcement of the Pacific Link on October 1, the federal government proceeded with a national interest designation despite the objections of the Assembly of First Nations (AFN). According to the AFN, meaningful engagement and decision- making protocols, nor is there any indication that the object of the consultation is to obtain FPIC.

The Prime Minister’s offer of a minimum 10% ownership stake is a risible offer of beads and trinkets for what is at stake for Indigenous territories.

As has been repeatedly asserted by the Courts, governments must build rights recognition into the front end of decision-making. Consent does not exist until Indigenous peoples and their governments – not project “proponents” – say it exists.

Canada must concentrate on developing rights-affirming and rights-respecting models, building support for projects to ensure that they proceed as hoped. Developing these models is more important than looking for ways to return to “certainty” in the absence of respect for Indigenous rights.

Unless these disputes are resolved, the Pacific Link, other projects, and the Building Canada Act risk becoming mired in legal and civil opposition. Proceeding without FPIC will further undermine Indigenous trust in Canada’s commitment to its obligations. It will also demonstrate that reconciliation rhetoric is a farce.

– Mary Eberts, O.C. Senior Fellow, Massey College; Joyce Green, Professor Emerita (retired, University of Regina) and member, Ktunaxa Nation; and Alison Poste, M.A. Student, Carleton University.

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