R v. Foreign Secretary ex parte Indian Association of Alberta [1982] 1 QB 892

R v. Foreign Secretary ex parte Indian Association of Alberta [1982] 1 QB 892

England and Wales Court of Appeal (Civil Division) Royal Courts of Justice, London. On appeal after the application was dismissed by the High Court of Justice, Queen’s Bench Division.

RATIO:

The court considered an application leave to request a judicial review seeking a declaration that treaty obligations entered into by the Crown to the Indian peoples of Canada were still owed by Her Majesty in right of Her government in the UK.

Held: The claim failed. The Crown was not single and indivisible but separate in respect of each self-governing territory within the Commonwealth. After 1926 ‘the Crown was no longer single and indivisible. It was separate and divisible for each self-governing dominion or province or territory’. This principle applied as much to a colony as to a dominion. Kerr LJ emphasised that whether the situs of rights and obligations of the Crown is to be found in right, or in respect of, the United Kingdom or of other governments within the Commonwealth of which Her Majesty is Head of State has nothing to do with whether those governments are independent or not: ‘Indeed, independence, or the degree of independence, is wholly irrelevant to the issue, because it is clear that rights and obligations of the Crown will arise exclusively in right or respect of any government outside the bounds of the United Kingdom as soon as soon as it can be seen that there is an established government of the Crown in the overseas territory in question.’

Kerr LJ discussed the argument that Canada was not fully independent of the UK: ‘With respect, in my judgment this argument is wholly fallacious. As shown by the basic constitutional principles discussed at the beginning of this judgment, it is perfectly clear that the question whether the situs of rights and obligations of the Crown is to be found in right or respect of the United Kingdom, or of other governments within those parts of the Commonwealth of which Her Majesty is the ultimate sovereign, has nothing whatever to do with the question whether those governments are wholly independent or not. The situs of such rights and obligations rests with the overseas governments within the realm of the Crown, and not with the Crown in right or respect of the United Kingdom, even though the powers of such governments fall a very long way below the level of independence. Indeed, independence, or the degree of independence, is wholly irrelevant to the issue, because it is clear that rights and obligations of the Crown will arise exclusively in right or respect of any government outside the bounds of the United Kingdom as soon as it can be seen that there is an established government of the Crown in the overseas territory in question. In relation to Canada this had clearly happened by 1867.’

Lord Denning MR said that the treaties having been entered into by the Crown when in law it was one and indivisible, and was the Crown of the United Kingdom. Then in the first quarter of the nineteenth century this law was changed, not by statute but by constitutional usage and practice, so that the Crown thereafter was separate and divisible for each self-governing territory of the Commonwealth. Thereupon the existing obligations of the Crown became obligations of the Crown in respect of the territories to which they related, binding on the Crown only in right of those territories and no longer in right of the United Kingdom.

May LJ said that any treaty or other obligation which the Crown had entered into with the Canadian Indians ‘had become the responsibility of the government of Canada with the attainment of independence, at the latest with the Statute of Westminster 1931.

This precedent was relied upon in Fitzgibbon v HM Attorney General [2005] EWHC 114 (Ch) in relation to Australia, regarding the divisibility of the Crown.

Click to access r-v.-foreign-secretary-ex-parte-indian-association-of-alberta-1982-1-qb-892.pdf

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