Case Facts
In this case, two separate actions were brought by Canadian Indian chiefs challenging the constitutional validity of the Canada Act 1982.
The first action was commenced by writ issued on 10 December 1981 by Chief Robert Manuel and 123 other Canadian Indian chiefs, acting in their representative capacities. The plaintiffs sought declarations that the United Kingdom Parliament had no power to amend the Canadian constitution in a manner prejudicial to the Indian nations without their consent, and that the Canada Act 1982 was accordingly ultra vires. Their argument rested on the contention that the Statute of Westminster 1931 and the British North America Acts provided constitutional safeguards for Indian peoples, and that the Canada Act 1982 was inconsistent with and a derogation from those safeguards.
The second action was commenced by writ issued on 14 January 1982 by Chief Jerome Noltcho and 67 other chiefs. That action sought declarations that agreements and collateral warranties made between the Crown and Indian nations remained binding on the Crown in right of the United Kingdom.
By way of background, on 9 December 1981 the Senate and House of Commons of Canada had submitted an address to the Queen requesting that a Bill be laid before the UK Parliament. The Canada Act 1982 subsequently received the Royal Assent on 29 March 1982 and came into force by Royal Proclamation on 17 April 1982, pursuant to s 58 Constitution Act 1982 (Schedule B to the Canada Act 1982). The Constitution Act 1982 explicitly recognised and affirmed the existing aboriginal and treaty rights of the aboriginal peoples of Canada, including the Indians, whilst introducing a new procedure for amending the constitution of Canada — the practical effect of which was that the UK Parliament would thenceforth take no part in such amendment.
The Attorney-General applied under RSC Order 18 r 19 to strike out both statements of claim as disclosing no reasonable cause of action. The proceedings were therefore a strike-out application, not a full trial on the merits; the fundamental question before the court was whether the claims were even arguable.
Sir Robert Megarry V-C heard both actions at first instance in the Chancery Division. He struck out the first action, holding that the Canada Act 1982 was not ultra vires and that it was his duty to obey and apply it as a validly enacted Act of Parliament. He struck out the second action on the distinct ground that any treaty obligations in question were obligations of the Crown in right of Canada, not the Crown in right of the United Kingdom.
The plaintiffs in the first action appealed to the Court of Appeal.
Held
The Court of Appeal, comprising Cumming-Bruce LJ, Eveleigh LJ, and Slade LJ, dismissed the appeal. Sir Robert Megarry V-C was not a member of the Court of Appeal panel, having sat only at first instance.
The Court approached the matter on the following basis. It assumed, without deciding, that no Act of Parliament passed subsequent to the Statute of Westminster 1931 and extending to a Dominion could be valid unless it complied with s 4 Statute of Westminster 1931. Proceeding on that assumption, the Court held that the sole condition precedent imposed by s 4 was that the Act contain an express declaration that the Dominion had requested and consented to its enactment.
Turning to the Canada Act 1982, the Court observed that the opening words of its preamble stated: "Whereas Canada has requested and consented to the enactment of an Act of Parliament of the United Kingdom to give effect to the provisions hereinafter set forth..." The Court held that where an Act of Parliament contains such an express declaration, that declaration is conclusive evidence of compliance with s 4 Statute of Westminster 1931. It was accordingly not arguable that s 4 had not been complied with. The statement of claim was unarguable and had been correctly struck out.
The Court further left open whether s 7(1) Statute of Westminster 1931 rendered s 4 inapplicable to Canada altogether. Since even on the assumption that s 4 applied, its requirements were conclusively satisfied by the preamble, it was unnecessary to resolve that question.
Ratio Decidendi
The ratio of the Court of Appeal's decision rests on two closely connected propositions.
First, an express declaration contained within an Act of Parliament — to the effect that the relevant Dominion has requested and consented to the legislation's enactment — constitutes conclusive satisfaction of s 4 Statute of Westminster 1931. Where such a declaration appears on the face of the Act, no court may go behind it to investigate whether the factual prerequisite was in truth satisfied.
Second, and more fundamentally, English courts have no power to question or invalidate an Act of Parliament on the ground that some procedural requirement or constitutional condition precedent was not fulfilled. This proposition derives from the doctrine of parliamentary sovereignty and was applied directly from Pickin v British Railways Board [1974], which establishes that courts cannot go behind an Act of Parliament or examine proceedings in Parliament to question its validity. The declaration in the statute itself is determinative, and a court is bound to accept and apply an Act of Parliament as it finds it.
Accordingly, the plaintiffs' argument that the Canada Act 1982 was invalid because the consent of the Indian nations had not been obtained was unarguable as a matter of English law. Even assuming the Statute of Westminster 1931 imposed limitations on the UK Parliament's power to legislate for Canada, the preamble to the Canada Act 1982 conclusively demonstrated compliance with those limitations.
Obiter Dicta
The Court of Appeal made observations to the effect that even if Parliament had, in some political or conventional sense, abdicated or restricted its legislative power over Canada, this could not be given legal effect by English courts. Parliamentary sovereignty, as a matter of English constitutional law, means that no Parliament can bind its successors so as to render a subsequently enacted statute legally invalid. Whatever political or constitutional conventions may have developed regarding the independence of Canada and the role of the Indian peoples, those conventions were not enforceable in a court of law in England.
It follows that the broader claim — that the UK Parliament was under a legal obligation to obtain the consent of the Indian nations before legislating to amend the Canadian constitution — could not be recognised as a justiciable proposition in English law, irrespective of whether such an obligation might be said to exist in moral or political terms.