Beyond Gitxaa̱la: Building Proactive Governance and Dispute Resolution in British Columbia
The Gitxaa̱la and Ehattesaht court cases were not just tests of mineral tenure law, they were symptoms of a deeper problem. When governments fail to listen to Indigenous Nations and design fair, transparent processes, disputes inevitably land before the courts. British Columbia’s emergency is not that DRIPA could trigger a flood of litigation; it is that the Province still lacks the proactive governance and robust feedback mechanisms needed to prevent conflicts in the first place.
Proactive governance vs. quick fixes
Premier David Eby’s proposed amendments to the Declaration on the Rights of Indigenous Peoples Act (DRIPA) have been justified as a way to bring “certainty.” Yet certainty comes from honouring commitments and building trust, not from restricting access to courts. As Mediate BC’s Calls to Action Committee notes, BC’s own legislation contemplates collaborative decision‑making with Indigenous communities, and co‑developing consensus‑based processes “builds trust and understanding” and reduces future problems. Simply amending DRIPA would leave the underlying processes untouched.
True leadership means tackling the root causes. First Nations and legal experts agree that adversarial courts are ill‑suited to resolving inter‑Nation disputes. The First Nations Leadership Council has long advocated for a continuum of dispute‑resolution mechanisms – negotiation, mediation, arbitration and Indigenous methods – grounded in Indigenous legal orders that are non‑prescriptive and focused on respect, restoration and consensus. Courts remain a safety net, but they should be the last resort, not the first stop.
Building robust feedback and dispute‑resolution mechanisms
Fortunately, we don’t need to start from scratch. In 2021, the UBC Residential School History and Dialogue Centre proposed concrete measures to align provincial laws with UNDRIP. These include establishing an advisory committee of Indigenous rights and constitutional experts to review proposed bills, creating a joint law review and reform process with Indigenous Peoples, and setting clear policies on partnership throughout the legislative process. The paper also called for new dispute‑resolution institutions and mediation rosters to avoid adversarial litigation. These proposals would create transparent pathways for feedback and resolution before conflicts reach the courts.
The Province has already taken a step by issuing civil‑litigation directives that require provincial counsel to prioritise negotiated settlements and alternative dispute‑resolution over courtroom battles. However, these directives are not yet reflected in DRIPA or supported by permanent institutions. A comprehensive system should include:
Independent Indigenous‑led dispute‑resolution bodies that offer negotiation, mediation and arbitration services and draw on Indigenous laws. Such bodies could handle disagreements over resource projects, shared territories or treaty implementation.
Mandatory early engagement and consent‑based agreements under DRIPA’s section 7, with embedded dispute‑resolution clauses. The FNLC has emphasised that dispute‑resolution regulations must “meaningfully reflect First Nations’ consent” and allow Nations to incorporate their own decision‑making approaches.
Advisory and review committees to vet new legislation for consistency with UNDRIP and publish opinions, ensuring transparency and reducing the need for litigation.
Strengthening accountability and transparency
One of DRIPA’s core strengths is its requirement for annual progress reports on how provincial laws are being aligned with the UN Declaration on the Rights of Indigenous Peoples. Section 5 mandates public, collaborative reporting by June 30 each year. Yet during the current debate over amendments, some provincial officials have even floated the idea of loosening these reporting requirements. That would be a step backward. Instead, the Province should strengthen accountability by committing to more frequent and detailed updates. Quarterly or semi‑annual progress reports, published in partnership with Indigenous Nations, would allow communities to see which statutes are being reviewed, what feedback is being incorporated and what timelines are in place for legislative amendments.
Transparency is equally essential when prioritising which laws to amend. First Nations leaders warn that secretive, expedited consultations undermine trust. A clear, public process for identifying and ranking laws that need alignment, supported by an independent expert committee, would show the Province is working systematically, not selectively. Every new bill should come with a plain‑language statement explaining how it complies with DRIPA and summarizing the consultation undertaken.
Finally, it is vital that government officials stop using the spectre of a future conservative government as leverage. The only real “off‑ramp” from litigation is to fully implement DRIPA, honour the commitments already made and deepen the Province’s engagement with Indigenous Nations. Strengthening reporting and transparency will demonstrate that B.C. has both feet on the path toward reconciliation and is not looking for ways to opt out.
Listening to Nations and respecting economic sovereignty
Gitxaa̱la and Ehattesaht did not rush to court; they were forced there because the Province failed to consult them meaningfully on mineral claims. Indigenous Nations are not only rights holders; they are also economic actors. Their consent, partnerships and investor signalling influence billions of dollars in investment decisions. When governments create uncertainty by ignoring Indigenous rights, markets become uncertain. Proactive governance – co‑developing laws, strengthening consultation and embedding dispute‑resolution – creates stability for everyone.
A call to leadership
Premier Eby has an opportunity to demonstrate true leadership. Rather than amending DRIPA to limit judicial oversight, he should champion the creation of inclusive processes that honour Indigenous laws and provide clear, fair pathways to resolve conflicts. If Gitxaa̱la and Ehattesaht had been heard through robust feedback mechanisms and Indigenous‑led dispute‑resolution, they would not have needed to go to court. A proactive, partnership‑based approach will not only reduce litigation but also strengthen reconciliation and economic certainty in British Columbia.
Strengthening reporting and legislative transparency
Official documents show that Section 5 of DRIPA requires the Minister of Indigenous Relations to produce annual progress reports detailing how provincial laws are being aligned with the UN Declaration on the Rights of Indigenous Peoples. The Action Plan outlines 89 actions and demands collaborative annual reporting by June 30. Despite this, First Nations leaders caution that the Province’s proposals to amend DRIPA could dilute these obligations. Weakening reporting or limiting court oversight would erode accountability and undermine trust. Instead, the Province should:
Strengthen—not weaken—reporting: maintain the legislated requirement for annual progress reports and commit to quarterly or semi‑annual updates. Draft reports should be shared with Indigenous partners for feedback before final publication so that communities can see which statutes are being reviewed, what feedback is being incorporated and when reforms will occur.
Develop a transparent legislative‑prioritization process: establish a joint advisory committee of provincial and Indigenous legal experts to review existing statutes, rank them for alignment and provide public reasoning for the order in which laws will be amended. Each new bill should come with a plain‑language statement describing its consistency with DRIPA and summarising the consultation undertaken.
Co‑design robust feedback and dispute‑resolution mechanisms: build on the Action Plan and civil‑litigation directives by creating an Indigenous‑led dispute resolution body and a staged process that encourages negotiation, mediation and arbitration before litigation. This would give First Nations meaningful alternatives to the courts while ensuring that courts remain a safety net.
Invest in capacity and consent‑based agreements: ensure First Nations have the resources to participate fully in these processes and embed dispute‑resolution clauses in Section 7 consent‑based agreements. Such agreements should reflect Indigenous law and provide clear pathways for resolving conflicts.
Re‑commit to DRIPA and stop leveraging political threats: the only real “off‑ramp” from litigation is to fully implement DRIPA, accelerate alignment of laws and deepen the Province’s engagement with Indigenous Nations. Using the prospect of a future conservative government as leverage creates further uncertainty and mistrust.
By adopting these measures, the Province can address the potential of a litigation “flood” while honouring its legal obligations under DRIPA. Proactively co‑developed dispute‑resolution institutions and transparent legislative processes will give First Nations meaningful alternatives to the courts and build the trust needed for reconciliation.
