Because this is an English case its text is not easily accessible to Canadian readers so I am posting it here because I believe it is very important.
What was rejected were the following propositions:
"(1) the United Kingdom Parliament has no power to amend the Constitution of Canada so as to prejudice the Indian Nations without the consent of the Indian Nations of Canada and
"(2) the Canada Act 1932 is ultra vires."
England and Wales Court of Appeal (Civil Division) Decisions
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
LORD JUSTICE EVELEIGH (not present)
LORD JUSTICE SLADE
|CHIEF ROBERT MANUEL|
of the Shuswap Nation suing on behalf of himself and all other Indians of the Neskainlith Indian Band and Others
|HER MAJESTY'S ATTORNEY-GENERAL||Respondent|
Herbert Oppenheimer, Nathan & Vandyk? appeared on behalf of the Appellants.
MR. J. F. MUMMERY (instructed by The Treasury Solicitor) appeared on behalf of the Respondent.
Crown Copyright ©
- LORD JUSTICE CUMMING-BRUCE: Lord Justice Eveleigh is not able to be present today.
The judgment of the court will be delivered by Lord Justice Slade.
LORD JUSTICE SLADE: This is an appeal from an order of the Vice-Chancellor made on 7th May 1982 whereby he acceded to an application by H.M. Attorney-General that the statement of claim in an action be struck out and the action dismissed. The plaintiffs in the action were 124 Canadian Indian Chiefs, who were respectively expressed to sue on behalf of themselves and named Indian bands. The defendant was H.M. Attorney-General. As the Vice-Chancellor explained in his judgment, the term "bands" is used in the sense of a body of Indians for whom lands have been set apart or for whom moneys are held or who have been declared to be a band by the Governor-General in Council.
The case raises issues which are no doubt of great political importance to all the peoples of Canada, particularly the Indians concerned. This court, however, is concerned with the bare question whether the claim to relief in the action is plainly ill-founded in English law. As the Vice-Chancellor recognised in his judgment, if, but only if, the answer to this question is in the affirmative should the action be prevented from proceeding to trial.
Canada emerged as a Dominion 115 years ago. Section 3 of the British North America Act 1867 empowered the Queen, by and with the advice of the Privy Council, to declare by proclamation that the provinces of Canada, Nova Scotia, and New Brunswick should "form and be one dominion under the name of Canada". Section 4 of that Act, as subsequently amended, provided that "unless it is otherwise expressed or implied, the name Canada shall be taken to mean Canada as constituted under this Act".
Section 5 of that Act (which contained many other provisions) provided for the division of Canada into four provinces, to be named Ontario, Quebec, Nova Scotia and New Brunswick. The Proclamation envisaged by the Act was duly made and the Dominion was established on 1st July 1867. Since then a number of additional provinces have been created and a number of further British North America Acts have been passed.
The nature of the present action is an unusual one. The gist of the facts alleged in the statement of claim, which give rise to the proceedings, may be very shortly summarised for present purposes. Immediately before the Canada Act 1982 was enacted by the United Kingdom Parliament, the Canadian Indian bands had certain special rights which were protected under the constitution of Canada. These rights were recognised or confirmed by a Royal Proclamation made on 7th October 1763 and subsequently under a number of treaties made with the Indian bands. They include (inter alia) rights in relation to Indian reservations, rights of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown Lands and any other lands to which the Indians may have a right of access. Such rights are expressly referred to in a number of agreements set out in the Schedule to the British North America Act 1930 which, by section 1, expressly provided that these agreements should have the force of law. For many years, the Indians have thus had entrenched rights under the Canadian constitution.
In 1931, the Statute of Westminster 1931 was enacted to give effect to certain resolutions of Imperial Conferences held in the years 1926 and 1930. The Statute substantially gave legislative independence to the territories which were specified in section 1 and were there referred to as "Dominions". These included the Dominion of Canada. Before the Act became law, an enactment of a Dominion legislature such as that of Canada could not have had extra-territorial effect and, further, would have been void if it had been repugnant to an Act of Parliament of the United Kingdom which extended to the Dominion. These two disabilities were removed respectively by sections 3 and 2 of the Statute, subject to certain provisions contained in sections 7, 8 and 9, and to the adoption of sections 2 and 3 by the Dominion Parliament, if necessary under section l0.
The third paragraph of the Preamble to the Statute had recited:
"And whereas it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion: ..."Section 4 contained a corresponding provision but with one significant difference, which will be mentioned later in this judgment. It provided:
"No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof."Section 7(1) of the Statute provided:
"Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder."Section 7(3) provided:
"The powers conferred by this Act upon the Parliament of Canada or upon the legislatures of the Provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or of any of the legislatures of the Provinces respectively."Section 7 thus preserved intact the existing powers of the United Kingdom Parliament to legislate by way of "repeal, amendment or alteration" of the British North America Acts. At the time when the Statute of 1931 was passed, these powers were very extensive, since an alteration of the Constitutional Acts of Canada could, with certain minor exceptions, be effected only by an Act of the United Kingdom Parliament. In 1949, as a result of the amendment of section 91 of the British North America Act 1867 effected by the British North America (No. 2) Act 1949, the Parliament of Canada acquired exclusive power to amend the Constitution of Canada, except as regards matters coming within a number of classes of subjects specified in the section. Even after 1949, however, United Kingdom legislation remained necessary in respect of any amendment affecting these excepted matters. The plaintiffs consider that it remained necessary in respect of amendments affecting certain entrenched rights of the Indians embodied in the British North America Acts.
On 9th December 1981 the Senate and the House of Commons of Canada submitted an address to H.M. The Queen requesting that a Bill ("the Canada Bill") be laid before the United Kingdom Parliament to amend the constitution of Canada in a manner summarised in the statement of claim as follows:
"by (inter alia) (1) terminating the remaining responsibility of the United Kingdom Parliament for amending the constitution of Canada and conferring all such responsibility on Canadian institutions, and (2) providing for a Canadian Charter of Rights and Freedoms."On 10th December 1981, before the Canada Bill had become law, the plaintiffs (or more accurately some of the plaintiffs, since others were subsequently added by amendment) issued the writ in the present action. A statement of claim was served on 22nd January 1982 and shortly afterwards amended.
On 29th March 1982 the Canada Act 1982 received the Royal Assent. The long title to the Act is "An Act to give effect to a request by the Senate and House of Commons of Canada". It contains a preamble in the following terms:
"Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that Her Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that purpose."Section 1 states: "The Constitution Act, 1982 set out in Schedule B to this Act is hereby enacted for and shall have the force of law in Canada and shall come into force as provided in that Act."
Section 2 states: "No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law."
Section 3 states: "So far as it is not contained in Schedule B, the French version of this Act is set out in Schedule A to this Act and has the same authority in Canada as the English version thereof."
The Constitution Act 1982 referred to in the Canada Act 1982 came into force on 17th April 1982 by a proclamation by H.M. The Queen pursuant to section e.g. of that Act.
Part I of the Constitution Act 1982 (sections 1-34) contains the Canadian Charter of Rights and Freedoms. Under section 25 the guarantee in the Charter of certain rights and freedoms is expressed not to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada. Section 35(2) defines "aboriginal peoples of Canada" as including the Indian, Inuit and Metis peoples of Canada. Section 35(1) explicitly recognises and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada. It is not, therefore, claimed that the Constitution Act 1982 immediately divests the plaintiffs of any of their subsisting rights. Their anxiety appears to stem from a different cause. Section 37 provides for the convening of a constitutional conference within one year after the section comes into force (17th April 1982), which is to have included in its Agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada. Part V of the Act (sections 38 to 49) introduces a new procedure for amending the Constitution of Canada. The effect of this new procedure is that the United Kingdom Parliament will henceforth take no part in any such amendment. Under section 53(D, sections 4 and 7(1) of the Statute of 1931 are repealed insofar as they apply to Canada.
In these circumstances, the submission of the plaintiffs, as appearing from their statement of claim, is that the enactment of the Canada Bill is inconsistent with and a derogation from the constitutional safeguards provided for the Indian peoples by the Statute of 1931 and the British North America Acts.
The statement of claim was re-amended on 14th May 1982, during the course of the hearing before the Vice-Chancellor, partly to take account of the fact that the Canada Act 1982 had by then become law. The prayer to the re-amended pleading seeks a large number of declarations, but as the Vice-Chancellor observed, the first five plainly lead up to the last two, which are declarations that
"(1) the United Kingdom Parliament has no power to amend the Constitution of Canada so as to prejudice the Indian Nations without the consent of the Indian Nations of Canada and
"(2) the Canada Act 1932 is ultra vires."As the Vice-Chancellor commented in his judgment, a contention that an Act of Parliament is ultra vires is, on the face of it, bold in the extreme. It is not suggested that the Canada Act 1982 was not passed by the House of Commons and the House of Lords or that it did not receive the Royal Assent. On the face of it, the ordinary, elementary rules of English Constitutional law leave the court with no choice but to construe and apply the enactments of Parliament as they stand: (see Pickin v. British Railways Board (1974) AC 765). As Lord Morris of Borth-y-Guest observed (at page 789):
"It is the function of the courts to administer the laws which Parliament has enacted. In the processes of Parliament there will be much consideration whether a Bill should or should not in one form or another become an enactment. When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the courts there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the Statute Book at all".
Though the Vice-Chancellor referred to a number of other matters in his judgment, in the end he founded himself substantially on this proposition in striking out the plaintiffs' statement of claim. As he put it:
"The Canada Act is an Act of Parliament, and sitting as a Judge in an English Court, I owe full and dutiful obedience to that Act".If the matter is as simple as that, that is an end of the plaintiffs' case. But Mr. MacDonald on behalf of the plaintiffs in effect submitted that it is very far from so simple. In his submission, it is open to Parliament to give up its sovereignty in whole or in part. In particular, he contended, it is open to it to provide that any future legislation on a specified subject shall be enacted only with certain specified consents and that, in default of such consents, such future legislation shall be void. This, he submitted, is what Parliament did when it enacted section 4 of the Statute of 1931.
As we understood his argument before this court, it proceeded on lines which followed closely those which were summarised at pages 9 and 10 of the transcript of the Vice-Chancellor's judgment. By 1931, a convention had been established by a long-standing tradition that the United Kingdom Parliament could not legislate for Canada or the other Dominions, save at the request and with the consent of the Dominion concerned. Since (so it was submitted) that convention had ripened into law by 1931) section 4 of the Statute of 1931 was merely declaratory of the existing law. This convention required that, in any case where section 4 applied, there had to be an actual request and consent of the Dominion concerned. A mere declaration in a subsequent Act that there had been such a request and consent would not suffice to satisfy the requirements of section 4. The declaration in question, Mr. MacDonald strongly and repeatedly emphasised, had to be a true one and the consent had to be a real consent. Section 7(1) of the Statute of 1931) which provided that nothing in the Act was to be deemed to apply to the repeal, amendment or alteration of the British North America Acts" did not remove the need for the appropriate request and consent of the Dominion of Canada, and declaration thereof, in respect of the Canada Act 1982, because that Act went beyond a mere "repeal, amendment or alteration" of the British North America Acts. The effect of section 4 of the Statute of 1931 thus was and is that the actual consent and request of the Dominion of Canada had to be given to the Canada Act 1982, and the appropriate declaration of such request and consent had to be contained in that Act itself, if it was to be a valid statute extending to Canada. Furthermore, for this purpose, so it was submitted, the consent of the Dominion of Canada means the consent of the Federal Parliament, all the Provincial Legislatures and the Indian Nations, who are said to have a separate and special status within the Constitution of Canada - or alternatively at very least the consent of the Federal Parliament and all the Provincial Legislatures. Neither the Government nor the legislature of the Province of Quebec, nor the Indian Nations of Canada have joined in making the relevant request or giving the relevant consents in respect of the Canada Act 1982. In these circumstances, it is submitted that this Act is void, as not complying with section 4 of the Statute of 1931; or it must at least be arguable that this is so.
If, as we hope and believe, this is an adequate, albeit abbreviated summary of the essential features of Mr. MacDonald's full and strenuous argument, the argument will be seen to depend on a number of propositions, each one of which would be essential to its success at the trial of the action. Included among these essential propositions, though they are by no means the only ones, are the following three, each one of which must be established as arguable, if the plaintiffs are to succeed on this appeal:-
(1) that Parliament can effectively tie the hands of its successors, if it passes a statute which provides that any future legislation on a specified subject shall be enacted only with certain specified consents;
(2) that section 7(1) of the Statute of 1931 did not absolve the United Kingdom Parliament from the need to comply with the conditions of section 4 of the Statute of 1931 in enacting the Canada Act 1982, if the latter Act was to extend to Canada as an effective Act;
(3) that the conditions of section 4 of the Statute of 1931 have not in fact been complied with in relation to the Canada Act 1982.At least at first sight, the first of these propositions conflicts with the general statement of the law made by Maugham L.J. in Ellen Street Estates Limited v. Minister of Health (1934) 1 K.B. 590 at 597:
"The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the Legislature".Scrutton L.J. said much the same thing in that case, at pages 595 to 596 of the report. In British Coal Corporation v. The King (1935) AC 500 at page 520 Lord Sankey made certain observations specifically directed to the Statute of 1931:
"It is doubtless true that the power of the Imperial Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired: indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard s. 4 of the Statute".
Lord Sankey went on to observe that that was theory and had no relation to reality, but, if his statement of theory was correct, it would appear to refute the proposition now under consideration. However, a degree of support for the proposition is to be found in the writings of certain academic lawyers, for example Anson (1886) 2 L.Q.R. at page 440 and Dicey's Law of the Constitution 8th Edition at pages 66 to 67 and, possibly, in the decision of the Judicial Committee of the Privy Council in Bribery Commissioner v. Ranasinghe (1965) AC 172. In the latter case, Lord Pearce, in delivering the advice of the Board, expressed its view (at page 197) that "a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law". A little later (at page 198) he described as unacceptable the proposition that "a legislature, once established has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process". Mr. MacDonald has submitted that the Statute of 1931 was an instrument which itself regulated the power of Parliament to make law for the Dominions and so was a "constituent instrument within this language. Accordingly, in his submission, no subsequent Act extending to a Dominion can be valid unless it complies with the conditions of the Statute of 1931.
This submission raises points of great interest and fundamental importance to constitutional lawyers but, for reasons which will appear, we do not find it necessary to deal with them. For the purposes of this judgment we are content to assume in favour of the plaintiffs that the first of the three propositions to which we have referred is correct, though we would emphasise that we are not purporting to decide it.
As regards the second of them, Mr. MacDonald submitted that the Canada Act 1982 does not fall within the exempting provisions of section 7(1) of the Statute of 1931, on the grounds that its provisions go beyond a mere "repeal, amendment or alteration of the British North America Acts". We do not think it has been or could be disputed that at least a substantial part of the contents of the Constitution Act 1982, if regarded in isolation, would amount to no more than a mere "repeal, amendment or alteration of the British North America Acts", within those exempting provisions. Mr. MacDonald, however, has submitted that at least some others of its contents (for example, the Charter of Rights and Freedoms) fall outside such exemption and accordingly make it necessary that the conditions of section 4 of the Statute of 1931 should be complied with in relation to the whole of the Canada Act 1982.
By far the greater part of the plaintiffs' argument on this appeal has been devoted to an attempt to show that the conditions of section 4 have not been complied with in this context.
In the circumstances we will proceed to consider the third of the propositions referred to above which relates to section 4 of the Statute of 1931. We will revert briefly to the second of them and to section 7 at the end of this judgment.
For the time being, therefore, let it be supposed that Parliament, in enacting the Canada Act 1982, had precisely to comply with the conditions of section 4 of the Statute of 1931, if that new Act was to be valid and effective. What then are the conditions which section 4 imposes? It is significant that, while the preamble to the Statute of 1931 recites that "it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise that at the request and with the consent of that Dominion", section 4 itself does not provide that no Act of the United Kingdom Parliament shall extend to a Dominion as part of the law of that Dominion unless the Dominion has in fact requested and consented to the enactment thereof. The condition that must be satisfied is a quite different one, namely, that it must be "expressly declared in that Act that that Dominion has requested and consented to the enactment thereof". Though Mr. MacDonald, as we have said, submitted that section 4 requires not only a declaration but a true declaration of a real request and consent, we are unable to read the section in that way. There is no ambiguity in the relevant words and the court would not in our opinion be justified in supplying additional words by a process of implication; it must construe and apply the words as they stand: (see Maxwell's Interpretation of Statutes 12th Edition page 33 and the cases there cited). If an Act of Parliament contains an express declaration in the precise form required by section 4, such declaration is in our opinion conclusive so far as section 4 is concerned.
There was, we think, nothing unreasonable or illogical in this simple approach to the matter on the part of the legislature, in reserving to itself the sole function of deciding whether the requisite request and consent have been made and given. The present case itself provides a good illustration of the practical consequences that would have ensued, if section 4 had made an actual request and consent on the part of a Dominion a condition precedent to the validity of the relevant legislation, in such manner that the courts or anyone else would have had to look behind the relevant declaration in order to ascertain whether a statute of the United Kingdom Parliament, expressed to extend to that Dominion, was valid. There is obviously room for argument as to the identity of the representatives of the Dominion of Canada appropriate to express the relevant request and consent. Mr. MacDonald, while firm in his submission that all legislatures of the Provinces of Canada had to join the Federal parliament in expressing them, seemed less firm in his submission that all the Indian Nations had likewise to join. This is a point which might well involve difficult questions of Canadian constitutional law. Moreover, if all the Indian Nations did have to join, further questions might arise as to the manner in which the consents of these numerous persons and bodies had to be expressed and as to whether all of them had in fact been given. As we read the wording of section 4, it was designed to obviate the need for any further inquiries of this nature, once a statute, containing the requisite declaration, had been duly enacted by the United Kingdom Parliament. Parliament, having satisfied itself as to the request and consent, would make the declaration and that would be that.
Mr. MacDonald submitted in the alternative that, even if section 4 on its proper construction does not itself bear the construction which he attributed to it, nevertheless, in view of the convention referred to in the third paragraph of the preamble, the actual request and consent of the Dominion is necessary before a law made by the United Kingdom Parliament can extend to that Dominion as part of its law. Whether or not an argument on these lines might find favour in the courts of a Dominion, it is in our opinion quite unsustainable in the courts of this country. The sole condition precedent which has to be satisfied if a law made by the United Kingdom Parliament is to extend to a Dominion as part of its law is to be found stated in the body of the Statute of 1931 itself (section 4). This court would run counter to all principles of statutory interpretation if it were to purport to vary or supplement the terms of this stated condition precedent by reference to some supposed convention, which, though referred to in the preamble, is not incorporated in the body of the Statute.
In the present instance, therefore, the only remaining question is whether it is arguable that the condition precedent specified in section 4 of the Statute of 1931 has not been complied with in relation to the Canada Act 1982. Is it arguable that it has not been "expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof"? In our judgment this proposition is not arguable, inasmuch as the preamble to the Canada Act 1982 begins with the words "Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth". Mr. MacDonald, as we understood him, attempted to argue that, in the context of this particular recital, the word "Canada", as a matter of construction, means not the Dominion of Canada, but the Senate and House of Commons of Canada. In this context he referred to the long title of the Canada Act 1982: "An Act to give effect to a request by the Senate and House of Commons of Canada". Thus, he submitted, even on the interpretation of section 4 which we think is the correct one, the relevant condition has not been complied with in the present case. In our opinion there is no substance in this point. First, the court is not, we think, entitled to look at the long title of the Act for the purpose of construing the contents of the Act, except insofar as these contents are themselves ambiguous (see Maxwell's Interpretation of Statutes 12th Edition at pages 5 and 6)- Secondly, the preamble itself uses the word "Canada", followed shortly afterwards by the phrase "the Senate and the House of Commons of Canada", thereby making it plain that "Canada" is intended to mean something more than the Senate and the House of Commons of Canada. Thirdly, and most importantly, each of sections 1, 2 and 3 uses the word "Canada" plainly in the sense of the Dominion of Canada. It would not, in our opinion, be justifiable to attribute to the word a different meaning in the preamble. Section 3 of the British North America Act 1867 expressly established one dominion under the name "Canada", and section 4 expressly provided that the name "Canada" should be taken to mean Canada as constituted under that Act. Manifestly, in our opinion, the word "Canada" throughout the Canada Act 1982 bears the meaning of the Dominion of Canada. The use of the word "Canada" in our opinion involves no ambiguity at all.
For all these reasons, we conclude that, if and so far as the conditions of section 4 of the Statute of 1931 had to be complied with in relation to the Canada Act 1982, they were duly complied with by the declaration contained in the preamble to that Act.
Consequently, it is unnecessary to consider further the second of the three propositions referred to earlier in this judgment. It is unnecessary to consider whether the Constitution Act 1982 contains provisions which go beyond "the repeal, amendment or alteration of the British North America Acts" so as to fall outside the exempting provisions of section 7(1) of the Statute of 1931 and thus within section 4 of that Act. If it does contain such provisions, the express declaration of a request and consent required by section 4 is duly contained in the Canada Act 1982. If it contains no such provisions (as we understood Mr. Mummery would have sought to submit on behalf of the Attorney-General though we did not think it necessary to call on him), no declaration of request and consent was necessary.
Clearly this is not the first time when the relationship of sections 4 and 7 has been under consideration by the legislature in the course of drafting legislation intended to extend to Canada. It will be observed that the preamble to the Canada Act 1982 contains two limbs. The first recites a request and consent on the part of Canada to the enactment of an Act of the United Kingdom Parliament to give effect to the provisions thereinafter set forth. The second recites the submission by the Senate and House of Commons in Canada to Her Majesty of an address requesting that a Bill be laid before the United Kingdom Parliament for that purpose. The second limb of the preamble follows a form of , preamble adopted by the legislature in previous instances where the legislation in question has clearly involved no more than a mere amendment of the British North America Acts, falling within section 7(1) of the Statute of 1931. The British North America (No. 2) Act 1949, for example, which was merely intended to amend section 91 of the British North America Act 1867, contained solely the following preamble:
"Whereas the Senate and the House of Commons of Canada in Parliament assembled have submitted an Address to His Majesty praying that His Majesty may graciously be pleased to cause a measure to be laid before the Parliament of the United Kingdom for the enactment of the provisions hereinafter set forth".The British North America (No. 2) Act 1949 contained no express declaration of a request and consent on the part of the Dominion of Canada, no doubt because this was regarded as an Act which fell fairly and squarely within section 7 of the Statute of 1931, so that section 4 did not apply. The British North America Acts of 1940 and 1946 had contained similar preambles. In striking contrast to that of the British North America (No. 2) Act 1949 and of the Acts of 1940 and 1946 the preamble to the British North America Act 1949, which was passed a few months earlier, so as to confirm and give effect to the terms of the Union agreed between Canada and Newfoundland, contained a two-limbed recital more or less in the same terms as that employed by the legislature in the Canada Act 1982, and beginning with the words "And whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom ..." We infer that the first limb of the recital in the case of the British North America Act 1949 and the Canada Act 1982 must have been intended and was effective to constitute, so far as might be necessary, a declaration of the very nature specified in section 4 of the Statute of 1931.
For completeness, we should perhaps add that Mr. MacDonald referred us to a recent decision of the Supreme Court of Canada, which concerned, among other things, the consents that are requisite under the constitutional law of Canada for an amendment of the constitution of Canada: Reference re Amendment of the Constitution of Canada (1981) 125 D.L.R. I. However, with all deference to the Supreme Court of Canada, this decision, though very important and interesting, does not in our opinion have any direct bearing on the issues of English law which fall to be decided on the present appeal.
For the reasons which we have given, in our judgment the plaintiffs have failed to disclose an arguable case in submitting that the conditions of section 4 of the Statute of 1931 have not been complied with in relation to the Canada Act 1982, even on the assumption that section 7(1) does not render the provisions of section 4 inapplicable. On this ground, if no other, we have reached the clear conclusion that, if this action were to proceed to trial, it would be bound to fail. The trial judge, sitting in an English court and applying English law, would on any footing be bound to follow and apply the House of Lords decision in Pickin v. British Railways Board (1974) AC 765 and accordingly to reject the attack on the validity of that Act.
In our judgment, therefore, the Vice-Chancellor was plainly right to strike out the statement of claim in this action and to dismiss the action. We dismiss this appeal.
Order: Appeal dismissed with costs. Leave to appeal to the House of Lords refused.