Do Recent Treaty Agreements Address The Uncertainties Created By The Cowichan Tribes And Gitxaala Cases? – McMillan LLP
April 14, 2026
There has been a great deal of discussion lately regarding the Cowichan Tribes[1] and Gitxaala[2] court cases. Cowichan Tribes found Aboriginal title to exist over private land in Richmond, relying at least in part of the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”). Gitxaala found a BC law (the Mineral Tenure Act) legally unacceptable on the basis it was contrary to DRIPA.
But there is another significant legal issue lurking here that does not appear to have received much attention to date. It relates to the question of whether or to what degree three recently signed Final Agreements (treaties) with the Kitselas,[3] Kitsumkalum[4] and K’omoks[5] First Nations (the “New Treaty Agreements”) perpetuate the same risks the BC government has expressed concern about in the Cowichan Tribes and Gitxaala court cases. The answer to this question may ultimately depend, in part, on whether the BC government suspends parts of DRIPA as it has said it plans to,[6] but it appears the government is planning to introduce treaty implementation legislation for new treaties with additional First Nations in the Legislature imminently.[7]
