Turtle Talk

The court didn’t agree with the Greater Vancouver Regional District’s argument that the recent Musqueam Reconciliation, Settlement and Benefits Agreement Implementation Act was ultra vires the province’s power because “it is, in pith and substance, a law in relation to ‘Indians and Lands reserved for the Indians.'”  The decision is here.

42          I am not convinced that it is not open to Parliament or a provincial legislature to enact legislation that validly requires government or government officials to consult with a stated person or group before it may legislate in a particular way. At the least, I would say that attempts to enforce such a provision would not be bound to fail as a “renunciation pro tanto of the lawmaking power”. 

43          The real obstacle in my view to the GVRD’s prospects of success in this case lies in the fact that s. 3(c) does not purport to create any requirement or obligation on the part of the Province. The law seems clear that any manner and form restraint must be imperative — it must not merely state a “principle” or a “need” that underlies a “relationship” as here, but must be sufficiently clear to overcome the right of the legislative body to bind itself as the manner and form of enacting future laws.

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52          Given my conclusion that s. 3(c) does not create any obligation on the part of the Province or any right on the part of the GVRD, I do not see how declaratory relief of the kind now sought by the GVRD could affect a legal interest, determine any “right” or “entitlement” of the District, or even move this proceeding along. No legal purpose would be served by such a declaration. As noted by L. Sarna in The Law of Declaratory Judgments (3rd ed., 2007), before a declaration will be granted with respect to an issue of statutory interpretation, the provision in question must “substantively and actively refer to rights. The court will refuse to adjudicate on preambles…” (At 137; my emphasis.) I conclude that it is plain and obvious the District could not succeed in obtaining even the limited declaration it now seeks.