2011 BCCA 345 Greater Vancouver Regional District v. = British Columbia (Attorney General)

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Greater Vancouver Regional District = v. British=20 Columbia (Attorney General),

2011 BCCA 345

Date: = 20110815

Docket: = CA037150

Between:

Greater Vancouver=20 Regional District

Appellant

(Plaintiff)

And

Her Majesty The Queen In Right Of The Province = Of
British=20 Columbia, Block F Land Ltd., Block K Land Ltd., and
Musqueam Indian = Band=20 (also known as Musqueam Nation or
Musqueam First Nation) on its own = behalf=20 and on behalf of its Members

Respondents

(Defendants)

Before:

The Honourable Madam Justice = Newbury

The Honourable Madam Justice = Levine

The Honourable Madam Justice=20 Bennett

On=20 appeal from the Supreme Court of British Columbia April 29, 2009 = (Greater=20 Vancouver Regional District v. British Columbia (Attorney = General),

2009 BCSC 577, Vancouver Registry, Docket Number = S084214)

Counsel for the Appellant:

G.K. Macintosh,=20 Q.C.

T.A.=20 Dickson

Counsel for the Respondent

Her Majesty The = Queen In=20 Right of the Province of British Columbia:

Counsel for the Defendant Block F Land Ltd., = Block K=20 Land Ltd. and Musqueam Indian Band (also known as Musqueam Nation = or=20 Musqueam First Nation) on its own behalf and on behalf of its = Members:

P.E. Yearwood

M.L. Foster

M.A. Morellato,=20 Q.C.

Place and Date of Hearing:

Vancouver,=20 British Columbia

June 15,=20 2011

Written Submissions Received:

June 21, July 5,=20 6, 14,
22 & 25, 2011

Place and Date of Judgment:

Vancouver,=20 British Columbia

August 15,=20 2011

Written Reasons by:

The Honourable Madam Justice = Newbury

Concurred in by:

The Honourable Madam Justice Levine

The Honourable Madam Justice=20 Bennett

Reasons for = Judgment of the=20 Honourable Madam Justice Newbury:

[1] = ; =20 One of the well-known rules that guide Canadian judges in the=20 interpretation of statutes is that wherever possible, the court should = strive to=20 give meaning and effect to every word used in an enactment. As stated in = Maxwell on the Interpretation of Statutes (12^th ed., = 1969),=20 =93It is a principle of statutory interpretation that every word of a = statute must=20 be given meaning: =91A construction which would leave without effect any = part of=20 the language of a statute will normally be rejected.=94 (See also=20 Communities Economic Development Fund v. Canadian Pickles Corp. = [1991]=20 3 S.C.R. 388 at 408; R. v. Kelly [1992] 2 S.C.R. 170 at 188; = Hosseini v. Oreck Chernoff 1999 BCCA 386, 65 B.C.L.R. (3d) 182, = at para.=20 27.) Courts are also directed by statute that every enactment = =93must be=20 construed as being remedial, and must be given such fair, large and = liberal=20 construction as best ensures the attainment of its objects.=94 =20 (Interpretation Act, R.S.B.C. 1996, c. 238, s. 8.)

[2] = ; =20 It is unusual, therefore, to encounter a provision in a = provincial=20 statute that the Province itself argues is merely =93aspirational=94, is = not=20 binding, and should be given no legal effect, not only as a matter of=20 interpretation, but as a matter of substantive law. The provision in = question is=20 s. 3(c) of the Local Government Act, R.S.B.C. 1996, c. 323. = It=20 states:

3. The=20 relationship between regional districts and the Provincial government in = relation to this Act is based on the following principles:

...

(c) notice = and=20 consultation is [sic] needed for Provincial government = actions=20 that directly affect regional district interests ...

[3] = ; =20 The interpretation of s. 3(c) arises in the context of a larger = challenge=20 by the plaintiff, the Greater Vancouver Regional District (the = =93GVRD=94 or the=20 =93District=94), to the constitutional validity of the Musqueam = Reconciliation,=20 Settlement and Benefits Agreement Implementation Act, S.B.C. 2008,=20 c. 6 (the =93Reconciliation Act=94). By that = Act, the=20 Province implemented a =93Reconciliation Agreement=94 with the Musqueam = First Nation=20 by transferring certain park lands owned by the District to two = companies=20 designated by the Musqueam. The District submits that the = Reconciliation=20 Act is ultra vires the British Columbia Legislature =93by = reason that=20 it is, in pith and substance, a law in relation to =91Indians and Lands = reserved=20 for the Indians=92.=94 It will argue at trial that the vesting of = the park=20 lands in the recipient companies is void ab initio or that = alternatively,=20 the companies and the Musqueam Nation hold any interest in the lands on=20 constructive trust for the GVRD=92s benefit. The District seeks = declarations to=20 this effect and substantive relief not relevant to this appeal.

[4] = ; =20 As far as s. 3(c) of the Local Government Act is = concerned, the=20 District alleges at paras. 20-3 of its statement of claim that the = Province=20 carried out the transfer of the park lands without notice to or = consultation=20 with the District. Thus it sought in its prayer for relief:

b) a declaration = that the=20 enactment of the Act without adequate notice by British Columbia = violated s. 3=20 of the Local Government Act;

c) a declaration = that the=20 enactment of the Act without adequate consultation by British Columbia = violated=20 s. 3 of the Local Government Act ...

Although not expressly stated in the pleading, the = District=92s=20 position was that the consequence of such =91violation=92 was that the=20 Reconciliation Act and the transactions carried out thereunder = were=20 invalid.

[5] = ; =20 In October 2008, the Province applied under R. 19(24) of the = (then)=20 Supreme Court Rules to have paras. 20-3 of the pleading and the = foregoing=20 paras. (b) and (c) of the prayer for relief struck out as disclosing no=20 reasonable cause of action. It took the position that the =93statement = of=20 principle=94 in s. 3(c) does not create a right, or even a reasonable = expectation,=20 that could form the basis of an order declaring the Reconciliation = Act=20 invalid.

[6] = ; =20 The chambers judge in the court below agreed, concluding = that:

... it was not the = intention of=20 the British Columbia legislature that one subsection buried within a = part of a=20 statute (that is not a constitutional statute) titled "Purpose, = Principles and=20 Interpretation" have the mandatory binding effect contended for by the=20 plaintiff. I would not ascribe to that section the meaning contended by = the=20 plaintiff. It is not a mandatory provision; rather, it should be = interpreted=20 as part of the preamble to the statute and a provision that expresses = the=20 aspirations of the government consistent with the legislative objectives = of the=20 Local Government Act. [At para. 30; emphasis added.]

She therefore granted the relief sought under R. = 19(24).

[7] = ; =20 In its factum on appeal, the District reasserted its argument = below that=20 s. 3 established a procedural, or =93manner and form=94, restraint, = with which=20 future legislation such as the Reconciliation Act must comply in = order to=20 be valid. It says this part of its case is =93novel and difficult not = only because=20 no judgment has ever addressed the meaning of section 3 of the Act, but = also=20 because the distinction between mandatory and directory provisions is = seldom=20 litigated and is one to be made on consideration of a broad = context.=94 Thus=20 the District contends the chambers judge erred in striking out the s. 3 = claim=20 before trial. As well, it argues that instead of asking whether the = claim based=20 on s. 3(c) was bound to fail for purposes of R. 19(24), the = chambers judge=20 asked and answered the substantive question of whether s. 3(c) was a = manner and=20 form requirement on its merits, effectively imposing a higher standard = of=20 persuasion than the =93very low=94 one mandated by R. 19(24).

[8] = ; =20 In his oral submissions in this court, Mr. Macintosh on behalf of = the=20 GVRD stated that the District wished to amend its prayer for relief to = =93better=20 reflect paras. 20-3 in the statement of claim, by also seeking = declaratory=20 relief for inadequate notice and consultation=94. In place of paras. (b) = and (c)=20 quoted above, the District wishes to substitute:

(b) a = declaration that=20 each of the formation of the Settlement Agreement and the = enactment of=20 the Act without adequate notice by British Columbia violated s. 3 = of the=20 Local Government Act;

(c) a = declaration that=20 each of the formation of the Settlement Agreement and the = enactment of=20 the Act without adequate consultation by British Columbia violated s. 3 = of the=20 Local Government Act.

(The underlined references to the Settlement = Agreement would=20 be added by the amendment.)

[9] = ; =20 The GVRD also sought to advance what I understood to be an = alternate=20 argument on appeal concerning declaratory relief: counsel differentiated = in this=20 court between those parts of the statement of claim that seek to have = the=20 Reconciliation Act declared ultra vires or void, and = paras. (b)=20 and (c), before or after amendment. In Mr. Macintosh=92s submission, = even if the=20 Reconciliation Act were found to be valid (and s. 3(c) of the = Local=20 Government Act not mandatory), the court could still grant the = District a=20 declaration that s. 3(c) had been =93ignored=94 or =93breached ... = as a directory=20 provision.=94 Such a declaration would, he contends, have a = =93real impact=94 on=20 the nature and extent of =93rights=94 (to notice and consultation) said = to be=20 created by s. 3(c) and could be a =93valid remedy for failure to = comply with=20 the section=92s requirements.=94 This argument necessitated = further written=20 submissions from all counsel. I will return to it in due course.

[10] =20 I begin, however, by reviewing in greater detail the legal = context of=20 this appeal =96 the District=92s pleadings, which of course must be = assumed to be=20 true for purposes of R. 19(24), and the statutory provisions with which = we are=20 concerned.

Legal=20 Background

The = Reconciliation=20 Act

[11] =20 The GVRD pleads that it is the owner in fee simple of the lands = that=20 comprise the Pacific Spirit Regional Park. The Park is located within = the=20 University Endowment Lands and wraps around the University of British = Columbia=20 campus. The Park included two parcels, =93Block F=94 and =93Block K=94, = collectively=20 defined as the =93Park Lands=94 in the statement of claim, which lie = within the=20 territory over which the Musqueam assert aboriginal rights and title = under s. 35=20 of the Constitution Act, 1982. Evidently, Blocks F and K were = sold to the=20 GVRD by the Province in 1989, but subject to an express condition, = contained in=20 a court order, that the conveyance was =93without prejudice to the = aboriginal=20 claim of the [Musqueam]=94: see Musqueam Indian Band v. British = Columbia=20 [1989] B.C.J. No. 648 (C.A.).

[12] =20 The Band is the plaintiff under a handful of legal proceedings = against=20 British Columbia (inter alia), most of which have not been = resolved,=20 although the Band has succeeded in obtaining declarations that the = Province=20 failed to discharge its duty to consult with the Musqueam in connection = with=20 certain land transactions. Treaty negotiations have been proceeding for = several=20 years among the Musqueam, the Province and Canada under the aegis of the = British=20 Columbia Treaty Commission.

[13] =20 On March 11, 2008, the Musqueam and the Province entered into a=20 =93Settlement Agreement=94 whereby the Province agreed to transfer four = parcels of=20 land, including the Park Lands, to two companies (defendants herein) = designated=20 by the Musqueam, in exchange for the settlement of certain claims and = the=20 release of the Province, the federal Crown and their agents from such = claims.=20 The Province also paid a cash amount of $20.3 million in consideration = of the=20 transfer of the two parcels other than Blocks F and K, i.e., the land = now=20 occupied by the University Golf Club.

[14] =20 On March 31, 2008, the Reconciliation Act came into force. = Blocks=20 F and K were the subject of s. 3 of the statute, which provided in = material=20 part:

3(1) On the effective = date, and=20 despite any other enactment or law to the contrary,

(a) a fee = simple estate=20 in Block F is vested in the applicable designated company free and clear = of all=20 charges other than the following:

...

(b) a fee = simple estate=20 in Block K is vested in the applicable designated company free and clear = of all=20 charges other than the following:

...

(2) On the = effective=20 date, Block F and Block K cease to be a regional park within the meaning = of the=20 Local Government Act, and, without limitation, the vestings = referred to=20 in this section take effect free of any dedication to the public.

(3) On the = effective=20 date, and despite the University Endowment Land Act, the minister = responsible for the administration of that Act may, on behalf of the = government,=20 indicate in writing his or her support for the addition of Block K to = Musqueam=20 Indian Reserve No. 2.

With respect to Blocks = F and K,=20 ss. 7(3) and 8 provided:

7(3) No compensation is = payable to=20 the Greater Vancouver Regional District as a consequence of the vestings = referred to in section 3 and any and all claims by the Greater Vancouver = Regional District in relation to the vestings referred to in section 3 = are=20 extinguished. [Emphasis added.]

...

8 = ; No=20 legal proceeding for damages or compensation lies or may be commenced or = maintained against the government, the Musqueam Indian Band or a = designated=20 company in respect of a matter referred to in section 2, 3 or 4.

Finally, s. 12 stated that in the event of a = conflict or=20 inconsistency between the Reconciliation Act and any other = enactment, the=20 Reconciliation Act was to prevail.

[15] =20 As contemplated by the Act, the Minister of Aboriginal Relations = and=20 Reconciliation issued B.C. Reg. 71/2008 affirming the effective date of = the Act=20 as April 14, 2008 and vesting Block F in the defendant Block F Land Ltd. = and=20 Block K in the defendant Block K Land Ltd. Each of these companies is = controlled=20 by the defendant Musqueam Band.

[16] =20 As mentioned above, the GVRD alleges in its pleading that the = Province=20 did not provide adequate notice or adequately consult with it with = respect to=20 the Settlement Agreement or the Reconciliation Act, and that such = failure=20 constitutes a breach of s. 3(c) of the Local Government = Act.

Local = Government=20 Act

[17] =20 The District=92s pleadings do not provide any information = regarding the=20 circumstances surrounding the enactment of s. 3 of the Local = Government=20 Act. However, it appears the predecessor of s. 3 was first enacted = in 1998=20 as s. 4 of the Municipal Act, R.S.B.C. 1996, c. 323 by the = Local Government Statutes Amendment Act, 1998, S.B.C. 1998, c. = 34. The=20 preamble to the amending Act referred to a protocol that the Province = had=20 entered into with the Union of British Columbia Municipalities in 1996, = which=20 had:

(a) = recognized local=20 government as an independent, responsible and accountable order of=20 government,

(b) = established=20 principles to form the basis of the relationship between the Provincial = and=20 local orders of government, and

The=20 preamble continued:

AND WHEREAS the Province of British Columbia and the = Union of=20 British Columbia Municipalities entered in the Sub-Agreement on a New=20 Legislative Foundation for Local Government on October 3, 1997 that = establishes=20 the intent of the Province to build a new legislative foundation for = local=20 government and the 9 principles for developing and maintaining that = legislative=20 foundation;

AND WHEREAS the = provisions in=20 this Bill are a significant phase in the reform process intended to = establish=20 this new legislative foundation.

[18] =20 Section 1 of the Municipal Act as amended purported to = recognize=20 that =93local government=94 is an =93independent, responsible, and = accountable order=20 of government within its jurisdiction=94 and stated the purposes of the = Act as=20 follows:

(a) to = provide a legal=20 framework and foundation for the establishment and continuation of local = governments to represent the interests and respond to the needs of their = communities,

(b) to = provide local=20 governments with the powers, duties and functions necessary for = fulfilling their=20 purposes, and

(c) to = provide local=20 governments with the flexibility to respond to the different needs and = changing=20 circumstances of their communities.

[19] =20 Section 2 set forth four purposes of local governments, and = s. 3=20 stated that the powers conferred on local governments by the Act =93are = to be=20 interpreted broadly in accordance with the purposes of the Act ... and = of local=20 government, subject to the specific limitations and conditions=94 = established by=20 or under the Act. Then followed s. 4, which pronounced principles = on which=20 the =93relationship between local governments and the provincial = government in=20 relation to this Act is based ...=94. These included the principle, in = para. (c)=20 of s. 4, that =93notice and consultation is needed for provincial = government=20 actions that directly affect local government interests=94.

[20] =20 In 2003, what had become the Local Government Act was = further=20 amended by the Community Charter Transitional Provisions, = Consequential=20 Amendments and Other Amendments Act, 2003, S.B.C. 2003, c. = 52, s.=20 162. By that Act, the =93principles=94 previously in s. 4 were moved to = s. 3 and the=20 references previously made to =93local governments=94 were changed to = refer to=20 =93regional districts=94. I reproduce here ss. 2 and 3 of the current = Act in their=20 entirety:

= Purposes of Regional=20 Districts

2 = Recognizing that regional districts are an independent, responsible and=20 accountable order of government within their jurisdiction, the purposes = of a=20 regional district include

&n= bsp; =20 (a) providing good government = for its=20 community,

&n= bsp; =20 (b) providing the services and = other=20 things that the board considers are necessary or desirable for all or = part of=20 its community,

&n= bsp; =20 (c) providing for stewardship = of the=20 public assets of its community, and

&n= bsp; =20 (d) fostering the current and = future=20 economic, social and environmental well-being of its community.

Principles for Government Relations

3 = The=20 relationship between regional districts and the Provincial government in = relation to this Act is based on the following principles:

&n= bsp; =20 (a) cooperative relations = between the=20 Provincial government and regional districts are to be fostered in order = to=20 efficiently and effectively meet the needs of the citizens of British=20 Columbia;

&n= bsp; =20 (b) regional districts need = the powers=20 that allow them to draw on the resources required to fulfill their=20 responsibilities;

&n= bsp; =20 (c) notice and consultation is = needed=20 for Provincial government actions that directly affect regional district = interests;

&n= bsp; =20 (d) the Provincial government=20 recognizes that different regional districts and their communities have=20 different needs and circumstances and so may require different = approaches;

&n= bsp; =20 (e) the independence of = regional=20 districts is balanced by the responsibility of the Provincial government = to=20 consider the interests of the citizens of British Columbia = generally.

Section 4 contained the =93broad powers=94 = provision previously=20 in s. 3, but was augmented by ss. (2), dealing with specific = powers. The=20 Preamble to the 1998 amending Act was not carried forward.

The = Judgment Appealed=20 From

[21] =20 The reasons of the chambers judge below are indexed as 2009 BCSC = 577. She=20 began by describing the factual background and the terms of the=20 Reconciliation Act. She stated the question before her thus:

Consequently, the = question=20 before me is whether, assuming the province did not give notice nor = consult with=20 the GVRD concerning the Musqueam Reconciliation Act, = non-compliance with=20 s. 3(c) of the Local Government Act has the effect of = invalidating=20 the enactment of the Musqueam Reconciliation Act? [At para. = 13.]

[22] =20 She described the GVRD=92s position that s. 3(c) of the Local = Government=20 Act constitutes a =93self-imposed procedural restraint=94 or = =93manner and form=94=20 requirement that precludes the Legislature from enacting any legislation = that=20 affects the interests of a local government until it has been notified = and=20 consulted. (Para. 14.) She then reviewed various passages from = Professor=20 Peter Hogg=92s text, Constitutional Law of Canada (5^th = ed.,=20 supp.) concerning manner and form restraints on legislative power, and = made=20 brief reference to the leading cases, R. v. Mercure = [1988] 1=20 S.C.R. 234; Reference Re Canada Assistance Plan (B.C.) [1991] 2 = S.C.R.=20 525 and Re Manitoba Language Rights [1985] 1 S.C.R. 721. The = Province=20 argued that s. 3 of the Local Government Act is =93ordinary=94 = rather that=20 =93constituent=94 or constitutional legislation and that the language of = s. 3 is=20 =93policy-oriented, directive legislation=94. The chambers judge = continued:

It is argued that = s. 3=20 does not create stand-alone substantive statutory duties, like those in = the two=20 bilingual reference cases mentioned above; rather, these provisions are=20 interpretive or directive type statements. It is further argued that if = this=20 legislation was intended to be a manner and form requirement like=20 Mercure, the effect of the legislation would have to be much = clearer,=20 that is, framed in imperative language rather than the vague language = used. [At=20 para. 23.]

[23] =20 The Court considered that ss. 2(a) and (d) of the Local=20 Government Act were =93statements of goals to which regional = districts=20 aspire=94; that s. 3 stated =93five principles to foster good relations = between the=20 province and the regional districts=94 and that paras. 3(b), (d) and (e) = =93could=20 not be construed as manner and form requirements=94. With respect to = 3(c) in=20 particular the chambers judge observed:

... The section is = vague as to=20 who should consult with whom, or when, and whether and how notice is to = be=20 given, or if both notice and consultation are always required. What is = clear=20 from the cases cited above and the text of Prof. Hogg, is that for = a=20 statutory provision to operate as a manner and form requirement to limit = future=20 legislative acts, the enactment must be explicit in so doing. Further, = it is=20 usually only constitutional or quasi-constitutional legislation, such as = language rights legislation, or human rights codes, or parliamentary = procedural=20 legislation, that is likely to operate as manner and form requirements. = [At=20 para. 29.]

[24] =20 Finally, she concluded:

... it was not the intention of the British Columbia = legislature that one subsection buried within a part of a statute (that = is not a=20 constitutional statute) titled =93Purpose, Principles and = Interpretation=94 have the=20 mandatory binding effect contended for by the plaintiff. I would not = ascribe to=20 that section the meaning contended by the plaintiff. It is not a = mandatory=20 provision; rather, it should be interpreted as part of the preamble to = the=20 statute and a provision that expresses the aspirations of the government = consistent with the legislative objectives of the Local Government=20 Act.

The plaintiff argues that this case is novel and = complex and=20 should not be decided under R. 19(24)(a). In my view difficult questions = of law,=20 even if they are complex or novel, may well be decided under this rule = if on a=20 proper analysis of the law it is plain and obvious that the claim cannot = succeed. In my view, for the reasons given above, this claim cannot = succeed and=20 it is quite proper to so decide the question under R. 19(24)(a) ...

For these reasons I = would not=20 interpret s. 3(c) as being a mandatory requirement that binds the = legislature=20 and on which the plaintiff can sue for the province's failure to give = notice and=20 to consult. It is clear that this part of the plaintiff's claim cannot = succeed.=20 [At paras. 30-2.]

In the result, the Court granted the Province=92s = application=20 to strike paras. 20-3 of the District=92s statement of claim and = subparas. (b) and=20 (c) of the prayer for relief.

On = Appeal

[25] =20 In its factum, the GVRD asserted the following error on the part = of the=20 court below:

The appellant = respectfully=20 submits that the chambers judge erred in striking our paragraphs 20-23 = of the=20 Statement of Claim and paragraphs (b) and (c) of the prayer for = relief.

[26] =20 It is seldom helpful for an appellant simply to state in Part 2 = of its=20 factum that the order of the court below was erroneous. From the = =93Argument=94=20 portion of the District=92s factum (as augmented by its further written=20 submissions), however, I take the following issues as arising on this=20 appeal:

1. Did the = chambers judge=20 fail to take the correct approach under R. 19(24) by addressing the = District=92s case on its merits insofar as s. 3(c) of the Act was = concerned,=20 rather than considering only whether (this part of) the case was bound = to=20 fail?

2. Assuming the = pleadings=20 remain as they now stand or are amended as counsel proposes, did = the=20 chambers judge err in finding that s. 3(c) does not constitute a = =93manner and=20 form=94 restraint but was instead =93part of the preamble=94 to the = Local=20 Government Act that =93expresses [only] the aspirations of the=20 government=94?

3. If s. 3(c) does = not=20 impose a mandatory restraint, could declaratory relief nevertheless be = available=20 to the GVRD to the effect that the Province=92s (assumed) failure to = notify or=20 consult with the District =93violated=94 s. 3(c), or is it plain = and obvious=20 such relief would not be granted?

Rule = 19(24)

[27] =20 The GVRD contends that the chambers judge below failed to apply = the=20 familiar =93plain and obvious=94 test to the application before her = under R. 19(24).=20 The District cited various cases which frame the test in different ways: = in=20 Minnes v. Minnes (1962) 39 W.W.R. 112, Tysoe J.A. asked = whether the=20 statement of claim disclosed some question fit to be tried by a judge or = jury;=20 Norris J.A. in the same case asked whether the pleadings, with such = amendments=20 as might reasonably be made, disclosed a =93proper case to be tried=94; = in DuMont=20 v. Canada (Attorney General) [1990] 1 S.C.R. 279, Wilson J. for the = Court=20 equated the test with whether the outcome of the case was =93beyond = reasonable=20 doubt=94; in Hunt v. Carey Inc., [1990] 2 S.C.R. 959, she = referred=20 both to the =93plain and obvious=94 test and to whether the plaintiff = had =93some=20 chance of success=94; and in Pearson v. Boliden Ltd. 2002 BCCA = 624, 222=20 D.L.R. (4th) 453, this court asked whether the plaintiff=92s pleadings = disclosed a=20 =93triable issue=94. (See also Odhavji Estate v. Woodhouse 2003 = SCC 69,=20 [2003] 3 S.C.R. 263, at para. 15). However, little is gained by pointing = out=20 these semantic differences, and I am content to use the =93plain and = obvious=94 or=20 =93bound to fail=94 formulations.

[28] =20 The District=92s argument that the chambers judge applied the = wrong test is=20 based mainly on para. 2 of her reasons, where she stated that the = question=20 raised by the motion was =93whether in enacting the Local Government = Act=20 ... the British Columbia legislature bound itself to give notice to, and = consult=20 with, regional districts, where the actions of the provincial government = directly affect regional district interests ...=94, and para. 13, where = as seen=20 above, she described the question as whether non-compliance with s. 3(c) = of the=20 Local Government Act had the effect of invalidating the enactment = of the=20 Reconciliation Act.

[29] =20 Without more, these formulations of the issue might be of = concern. At the=20 same time, however, the chambers judge referred at para. 15 to the = District=92s=20 argument that the question of whether s. 3 creates a =93manner and = form=94=20 requirement is a =93novel and complex issue and ought not to be resolved = by way of=20 R. 19(24)=94. She said essentially the same thing at para. 31, near = the end=20 of her legal analysis, observing that difficult questions of law, even = if they=20 are complex or novel, =93may well be decided under this rule if on a = proper=20 analysis of the law it is plain and obvious that the claim cannot=20 succeed.=94 On this point, she cited Kripps = v. Touche=20 Ross & Co. (1992) 94 D.L.R. (4th) 284, 69 B.C.L.R. (2d) 62 = (C.A.);=20 Pearson v. Boliden, supra; British Columbia=20 v. Imperial Tobacco Canada Ltd. 2008 BCSC 419, 82 B.C.L.R. = (4th) 362=20 and McMurray v. Marshall 2005 BCSC 961, 47 B.C.L.R. (4th) 127. = Based on=20 the reasons she had given, she concluded that =93It is clear that this = part of the=20 plaintiff=92s claim cannot succeed.=94

[30] =20 Reading the reasons as a whole, and considering that the caselaw = decided=20 under R. 19(24) is well-known, I am satisfied the chambers judge did = apply the=20 correct test. Nor was the issue an unsuitable one to be dealt with under = R. 19(24). The determination of whether s. 3(c) is substantive or=20 procedural, or mandatory or directive, does not require evidence of the = =93history=20 and goals=94 intended to be served by the Local Government Act, = or of the=20 =93respective effects of the provision being mandatory or directory, = such as what=20 consultation of regional districts would entail, how it would affect the = relationship between the Province and Regional Districts and how it = would impact=20 on the legislative process=94, as the District contends. =93Evidence=94 = of this kind=20 would be purely speculative and would in my view not assist with the = core=20 question of the legislative intent and effect of s. 3.

[31] =20 Being satisfied the question before the court below was one of = law that=20 could be decided on the assumed facts set out in the District=92s = pleadings, I=20 would not accede to this ground of appeal.

=91Manner and = Form=92=20 Requirement?

[32] =20 The District=92s original submission as stated in its factum was = that=20 s. 3(c) established a manner and form restraint on its legislative=20 enactments, with which future legislation (including the = Reconciliation=20 Act) had to comply to be valid =96 in other words, that = notice to and=20 consultation with regional districts were conditions of the validity of=20 =93Provincial government actions that directly affect regional district = interests=94=20 and that enacting the Reconciliation Act was one such = =91government=20 action=92.

[33] =20 The District relied on a small body of Canadian law dealing with=20 so-called =93manner and form=94 restraints on the legislative powers of = governments.=20 The phrase =93manner and form=94 (which originates in colonial = legislation) is used=20 to differentiate such procedural requirements from restraints on = the=20 =93content, substance or policy=94 of legislation (see Hogg, = supra, at=20 12-11). Restraints of the latter kind are not permitted to interfere = with the=20 authority of government to repeal, amend or pass legislation. As = Professor Hogg=20 writes:

Not only may the = Parliament of a=20 Legislature, acting within its allotted sphere of competence, make any = law it=20 chooses, it may repeal any of its earlier laws. Even if the Parliament = or=20 Legislature purported to provide that a particular law was not to be = repealed or=20 altered, this provision would not be effective to prevent a future = Parliament or=20 Legislature from repealing or amending the =93protected=94 law. The = later law,=20 though in conflict with the protecting provision, would unhesitatingly = be upheld=20 by the courts. Where two laws of the same legislative body are = inconsistent, the=20 general rule is that the later is deemed to impliedly repeal the = earlier. In=20 political terms, the rationale of this rule is clear. If a legislative = body=20 could bind itself not to do something in the future, then a government = could use=20 its parliamentary majority to protect its policies from alteration or = repeal.=20 This would lay a dead hand on a government subsequently elected to power = in a=20 new election with new issues. In other words, a government while in = office could=20 frustrate in advance the policies urged by the opposition. = [Supra, at=20 12-8 - 12-9.]

On the other hand, laws that prescribe the = =93manner and form=94=20 in which legislation must be enacted have been upheld =96 albeit mainly = in the=20 constitutional or quasi-constitutional context, and mainly with respect = to=20 requirements relating to voting majorities for the passage of laws: see=20 Attorney-General for New South Wales v. Trethowan [1932] = A.C. 526=20 (J.C.P.C.) and Bribery Commissioner. v. Ranasinghe [1965] = A.C. 172=20 (J.C.P.C.] at 196-97, cited in R. v. Mercure, supra, at = 277-80.

[34] =20 The interplay between impermissible restraints on legislative = authority=20 on the one hand and manner and form requirements on the other is = illustrated by=20 Re Canada Assistance Plan, supra, which tested the = efficacy=20 of a provision in the Canada Assistance Plan, R.S.C. 1970, c. = C-1, to the=20 effect that cost-sharing agreements under the Plan could be amended only = with=20 the mutual consent of the parties. British Columbia challenged a = proposal=20 announced in the federal budget to cap the growth of transfer payments = under the=20 Plan to British Columbia, Alberta and Ontario. The Supreme Court = was=20 asked whether such a law would constitute a unilateral amendment without = the=20 required consents, or whether the federal government was constrained = from=20 introducing a bill that would defeat the provinces=92 legitimate = expectations=20 created by the terms of the Plan and the agreements = thereunder.

[35] =20 On the first question, the Court noted that Canada=92s obligation = to pay=20 amounts under the Plan arose from s. 3(1)(a) of the statute, which = provided that=20 =93Canada agrees ... to pay to the province of British Columbia the = contributions=20 or advances ... that Canada is authorized to pay to the province under = the Act=20 and the Regulations=94. In the analysis of Sopinka J. for the Court, = this referred=20 to:

... contributions or advances under s. 5 of the = Plan,=20 an instrument that is to be construed as subject to amendment. = This is=20 the effect of s. 42(1) of the Interpretation Act, R.S.C. 1985, c. = I-21,=20 which states:

42(1) Every Act=20 shall be so construed as to reserve to Parliament the power of repealing = or=20 amending it, and of revoking, restricting or modifying any power, = privilege or=20 advantage thereby vested in or granted to any person.

In my view this provision reflects the principle = of=20 parliamentary sovereignty. The same results would flow from that = principle=20 even in the absence or non-applicability of this enactment. But since = the=20 Interpretation Act governs the interpretation of the Plan = and all=20 federal statutes where no contrary intention appears, the matter will be = resolved by reference to it.

It is conceded that = the=20 government could not bind Parliament from exercising its powers to = legislate=20 amendments to the Plan. To assert the contrary would be to negate = the=20 sovereignty of Parliament. [At 548; emphasis added.]

(The British Columbia = counterpart=20 to s. 42(1) of the federal Interpretation Act is found at s. = 15(1) of the=20 Interpretation Act, R.S.B.C.1996, c. 238.)

[36] =20 The Province=92s second argument in Re Canada Assistance = Plan sought=20 to surmount the sovereignty difficulty by differentiating between = Parliament and=20 the executive branch of the federal government. The Province contended = that=20 although the doctrine of legitimate expectations could not constrain=20 Parliament from passing a bill, it could constrain the Minister = of=20 Finance or any other member of the government from introducing a bill = into=20 Parliament. (See Hogg, supra, at 12-9.) Again, the Court = rejected=20 this argument, reasoning that:

Parliamentary government would be paralyzed if the = doctrine of=20 legitimate expectations could be applied to prevent the government from=20 introducing legislation in Parliament. Such expectations might be = created by=20 statements during an election campaign. The business of government would = be=20 stalled while the application of the doctrine and its effect was argued = out in=20 the courts. Furthermore, it is fundamental to our system of = government that a=20 government is not bound by the undertakings of its predecessor. The = doctrine=20 of legitimate expectations would place a fetter on this essential = feature of=20 democracy. I adopt the words of King C.J. of the Supreme Court of South=20 Australia, in banco, in West Lakes Ltd. v. South Australia = (1980),=20 25 S.A.S.R. 389, at p. 390, a case strikingly similar to this one:

Ministers of State = cannot,=20 however, by means of contractual obligations entered into on behalf of = the State=20 fetter their own freedom, or the freedom of their successors or the = freedom of=20 other members of parliament, to propose, consider and, if they think = fit, vote=20 for laws, even laws which are inconsistent with the contractual = obligations.

While the statement deals with contractual = obligations, it=20 would apply, a fortiori to restraint imposed by other conduct = which=20 raises a legitimate expectation.

A restraint on = the Executive=20 in the introduction of legislation is a fetter on the sovereignty of = Parliament=20 itself. [At 559-60; emphasis added.]

[37] =20 Last, the Court considered an argument advanced by the Native = Council of=20 Canada and the United Native Nations of British Columbia (=93NCC=94) to = the effect=20 that =93even a sovereign body can restrict itself in respect of the = =91manner and=20 form=92 of subsequent legislation.=94 (At 561.) In the = NCC=92s submission,=20 the federal government had so constrained itself by requiring = that any=20 subsequent legislation altering the Plan have the consent of the = affected=20 province or provinces. Again, however, the Court rejected this argument, = noting=20 first that any =93manner and form=94 provision in an =93ordinary=94 = statute must=20 overcome the clear words of s. 42(1) of the Interpretation Act, = quoted=20 earlier, which require that federal enactments be interpreted in = accordance with=20 the principle of parliamentary sovereignty. The sections of the = Plan=20 relied on revealed no such intention. It was =93no coincidence=94, = Sopinka J. noted,=20 that when the court had found =93manner and form restrictions, the = instrument=20 creating the restrictions has not been an ordinary statute=94. This had = been the=20 case in R. v. Drybones [1970] S.C.R. 282 with respect = to the=20 Canadian Bill of Rights, S.C. 1960, c. 44, and Mercure, = supra,=20 with respect to bilingual obligations under the North-West = Territories=20 Act, R.S.C. 1886, c. 50. In his = analysis,=20 both pieces of legislation were of a =93constitutional nature=94. (Cf. = Hogg,=20 supra, at 12-17, fn. 59.) Sopinka J. stated:

It may be that where = a statute=20 is of a constitutional nature and governs legislation generally, rather = than=20 dealing with a specific statute, it can impose requirements as to manner = and=20 form. But where a statute has no constitutional nature, it will be = very=20 unlikely to evidence an intention of the legislative body to bind itself = in the=20 future. [At 563; emphasis added.]

Further, the Court suggested that a provision = requiring the=20 consent to legislation of a particular kind could not be regarded = as a=20 =93manner or form of lawmaking=94 but would, in the words of King C.J. = in West=20 Lakes Ltd., supra, instead amount to a =93renunciation pro = tanto of the=20 lawmaking power.=94 (At 397-98, quoted by Sopinka J. at 564; = see also=20 Newfoundland v. Nfld. Assn. of Provincial Court Judges, 2000 NFCA = 46, at=20 para 531.).

[38] =20 It was likely this reasoning on which the chambers judge relied = in the=20 case at bar when she noted at para. 29 of her reasons that if a = statutory=20 provision is to operate as a manner and form requirement, it must be = explicit,=20 and that =93it is usually only constitutional or quasi-constitutional = legislation=20 =85 that is likely to operate as manner and form requirements.=94 = The District=20 contends on appeal that it is =93insufficient=94 in the context of = R. 19(24) to=20 rule out s. 3(c) as a manner and form requirement simply by observing = that such=20 requirements are =93usually=94 found in constitutional or = quasi-constitutional=20 legislation. Further, the Local Government Act provides a = framework for=20 local governments, establishing regional districts as an =93independent, = responsible and accountable order of government within their = jurisdiction=94 as=20 described in s. 2 of the Act. In this sense, the District suggests, it = may be=20 seen as a piece of legislation that, if not constitutional, is something = close=20 to it.

[39] =20 I agree that whether or not section 3 of the Local Government = Act=20 is constitutional or quasi-constitutional legislation may not be = determinative=20 of whether the District=92s case is bound to fail. In this regard, I = note=20 Professor Hogg=92s opinion that it is =93reasonably clear=94 a = legislative body =93may=20 be bound by self-imposed [as opposed to constitutional] procedural (or = manner=20 and form) restraints on its enactments=94 (supra, at 12-11). The = author=20 notes that various federal and provincial laws =91redefining=92 or = =91changing the=20 nature=92 of the legislative process have been upheld, or = accepted without=20 challenge. For example, he says:

... five provinces = have=20 abolished their upper houses by ordinary legislation, and a province = without an=20 upper house could establish one. The Parliament or a Legislature could = add other=20 elements to the legislative process, either for all statutes or just for = particular kinds of statutes. For example, the federal Parliament could = provide=20 that a law to abolish the office of Auditor General must first be = approved by a=20 referendum of voters, or a provincial Legislature could provide that a = law=20 altering the constituencies for elections must be passed by a two-thirds = majority in the legislative assembly. These =93manner and form=94 laws, = which=20 purport to re-define the legislative body, either generally or for = particular=20 purposes, are binding for the future. A law which purported to disregard = these=20 hypothetical examples of manner and form laws, for example, by = purporting to=20 abolish the office of Auditor General without a prior referendum, or to = alter=20 the provincial electoral law by a simple majority, would be held to be = invalid=20 by the courts. Thus, while the federal Parliament or a provincial = Legislature=20 cannot bind itself as to the substance of future legislation, it can = bind=20 itself as to the manner and form of future legislation. [At 12-12; = emphasis=20 added.]

[40] =20 An interesting example of a manner and form requirement in a=20 non-constitutional statute arose in Canadian Taxpayers Federation v. = Ontario=20 (Minister of Finance) (2004) 73 O.R. (3d) 621 (Ont. Sup. Ct.). = There, the=20 plaintiff sought a declaration that an Ontario statute establishing a = new tax=20 called the =93Ontario health premium=94 was invalid on the basis that = the leader of=20 the provincial Liberal Party had signed a document promising that if his = party=20 was elected he would respect the requirement, stated in Ontario=92s = Taxpayer=20 Protection Act, 1999, that no new taxes would be introduced = without=20 the approval of Ontario=92s voters by referendum. After his party won = the=20 election, however, the government levied the new health tax without a=20 referendum. It did so in two steps =96 first, it amended the Taxpayer = Protection Act by creating an exception to the referendum = requirement to=20 allow the =93health tax=94 to be introduced later in the session. Then, = once the=20 amendment had been enacted, the government introduced a second bill that = levied=20 the tax.

[41] =20 The plaintiff challenged the health premium on the bases of = =93manner and=20 form=94 requirements, contract and negligent misrepresentation. All = three=20 challenges failed. With respect to the manner and form requirement, the = Court=20 reasoned:

I agree with the = respondents'=20 submission that nothing in the text of the TPA reveals any = intention or=20 attempt by the legislature to limit its ability to amend the TPA = in=20 anything but the normal way. None of the prerequisites for an = effective=20 manner and form requirement are present. On the basis of parliamentary=20 sovereignty alone the application to declare Bill 83 of no force and = effect must=20 fail. Bill 83 sought to and did amend the TPA. Once = properly=20 amended to add s. 2(7) to the TPA, it is clear that Bill 106 = can be=20 properly placed before the legislature for consideration without having = to be=20 put to a referendum. [At para. 50; emphasis added.]

The Court, then, seemed to assume that the = referendum=20 requirement was valid, but held that it applied only to amendments to=20 federal-provincial agreements, not to the legislation itself. It = would,=20 the Court said, take a very clear indication in a statute, especially a=20 non-constitutional one, before an intention on the part of the = legislative body=20 to bind itself in the future would be found. (Hogg, supra, at = 12-19.)

[42] =20 I am not convinced that it is not open to Parliament or a = provincial=20 legislature to enact legislation that validly requires government or = government=20 officials to consult with a stated person or group before it may = legislate in a=20 particular way. At the least, I would say that attempts to enforce such = a=20 provision would not be bound to fail as a =93renunciation pro = tanto of the=20 lawmaking power=94. (Per King C.J. in West Lakes Ltd. v. South = Australia (1980) 25 S.A.S.R. 389, at 397-98, quoted at para. 76 of = Re=20 Canada Assistance Plan, supra.)

[43] =20 The real obstacle in my view to the GVRD=92s prospects of success = in this=20 case lies in the fact that s. 3(c) does not purport to create any = requirement or=20 obligation on the part of the Province. The law seems clear that any = manner and=20 form restraint must be imperative =96 it must not merely state a = =93principle=94 or a=20 =93need=94 that underlies a =93relationship=94 as here, but must be = sufficiently clear=20 to overcome the right of the legislative body to bind itself as the = manner and=20 form of enacting future laws.

[44] =20 Sufficiently clear wording was found in the sections of the = Manitoba=20 Act, 1870 and the Constitution Act, 1867 which were at issue = in the=20 Manitoba Language Rights Reference, supra. The Court emphasized = the use=20 of mandatory terms (in particular, the word =93shall=94) and held that = the statutes=20 imposed valid preconditions, in the form of bilingual requirements, to = the=20 enactment of legislation by the province of Manitoba. The Court = observed, for=20 example, that:

As used in its normal grammatical sense, the word = =93shall=94 is=20 presumptively imperative. See Odgers' Construction of Deeds and = Statutes=20 (5th ed. 1967) at p. 377; The Interpretation Act, 1867 (Can.), 31 = Vict.,=20 c. 1, s. 6(3); Interpretation Act, R.S.C. 1970, c. I-23, s. 28 = (=93shall is=20 to be construed as imperative=94). It is therefore incumbent upon this = Court to=20 conclude that Parliament, when it used the word =93shall=94 in s. 23 of = the=20 Manitoba Act, 1870 and s. 133 of the Constitution Act, = 1867,=20 intended that those sections be construed as mandatory or imperative, in = the=20 sense that they must be obeyed, unless such an interpretation of the = word=20 =93shall=94 would be utterly inconsistent with the context in which it = has been used=20 and would render the sections irrational or meaningless. See, e.g. Re = Public=20 Finance Corp. and Edwards Garage Ltd. (1957), 22 W.W.R. 312, p. 317 = (Alta.=20 S.C.).

There=20 is nothing in the history or the language of s. 23 of the Manitoba = Act,=20 1870 or s. 133 of the Constitution Act, 1867 to indicate that = =93shall=94=20 was not used in its normal imperative sense. On the contrary, the = evidence=20 points ineluctably to the conclusion that the word =93shall=94 was = deliberately and=20 carefully chosen by Parliament for the express purpose of making the = bilingual=20 record-keeping and printing and publication requirements of those = sections=20 obligatory. In particular Parliament's use of the presumptively = imperative word=20 =93shall=94 twice in s. 23 of the Manitoba Act, 1870 and twice in = s. 133 of=20 the Constitution Act, 1867 contrasts starkly with its use of the=20 presumptively permissive word =93may=94 twice in the same sections. = Section 23=20 provides that either English or French =93may be used=94 by anyone in = the debates of=20 the Manitoba Legislature and that either language =93may be used=94 by = anyone in the=20 Manitoba courts. Similarly, s. 133 provides that either English or = French =93may=20 be used=94 by anyone in the debates of Parliament and the Legislature of = Quebec,=20 and in the courts of Canada and Quebec. [At 737-78.]

[45] =20 No such clear intention appears in the wording of s. 3(c) of the = Local=20 Government Act, which I set out again for convenience:

3. The=20 relationship between regional districts and the Provincial government in = relation to this Act is based on the following principles:

...

(c) notice = and=20 consultation is needed for Provincial government actions that directly = affect=20 regional district interests ...

As the chambers judge noted, s. 3(c) does not = specify how=20 much notice is required or to whom it is to be given, nor does it = describe what=20 degree and manner of consultation are =93needed=94. The phrase = =93Provincial=20 government actions=94 is also vague =96 arguably, it may refer to = actions of the=20 executive branch of government, rather than to the enactment of laws by=20 Legislature. In any event, it is not, to quote Professor Hogg yet again, = =93unmistakeably addressed to the future actions of the enacting = legislative=20 body=94. (Supra, at 12-18.) Section 3(c) purports only to = state a=20 principle on which the relationship between regional districts and the = Province=20 is based (or on which the Province hopes it will be based). It does not = state=20 that no action shall be taken by the Province that directly affects = =93regional=20 district interests=94 without notice and consultation; nor does it state = that the=20 Province shall provide notice and consult before taking any action that = directly=20 affects regional district interests. It is plain and obvious that = s. 3(c)=20 creates no legally enforceable obligation on the part of the Province = that could=20 result in the invalidity of the statute (assuming it lies within one of = the=20 heads of provincial power.)

[46] =20 At the end of the day, I agree with the written submission filed = by the=20 Province in the court below and quoted by the chambers judge at para. 24 = of her=20 reasons:

Though manner and form requirements can exist at law = =85 a=20 manner and form restriction that limits the power of the Legislative = Assembly to=20 enact legislation pending consultation with a third party must clearly = be=20 expressed. Express language is required first because the obligation to = consult=20 regarding the enactment of legislation is directly contrary to the well=20 established rule of law that legislatures have no legal duty to consult=20 regarding the enactment of legislation.

Secondly, it must be = express=20 because such a manner and form restriction is directly contrary to the = clear=20 wording of s. 15(1) of the Interpretation Act =85

All of this is in addition to the fact that s. = 7(3) of=20 the Reconciliation Act expressly extinguishes =93any and all = claims by the=20 [GVRD] in relation to the vestings=94 of Blocks F and K.

[47] =20 I conclude that the chambers judge did not err in finding that=20 s. 3(c) of the Local Government Act could not = constitute a=20 =93manner and form=94 restraint on the authority of the Province to = enact the=20 Reconciliation Act. Having said this, I do think it regrettable = that the=20 Province chose to state the =93principles=94 it did in s. 3(c) if = it did not=20 intend them to have any legal effect. It may be that one or more = regional=20 districts have taken some comfort from s. 3(c), or have even relied = on it=20 to their detriment. Such a turn of events would be unfortunate and can = do little=20 to help develop a positive relationship between the Province and = regional=20 districts. Perhaps the technique of including aspirational goals in = statutes=20 should be reconsidered, and statements of this kind should return to = preambles=20 where they are clearly differentiated from substantive and enforceable = statutory=20 obligations.

Declaratory Relief

[48] =20 I turn finally to the question raised by Mr. Macintosh in his = oral=20 argument on the assumption that s. 3(c) does not impose a = mandatory=20 restraint on the enactment of legislation the breach of which results in = its=20 invalidity. Could declaratory relief nevertheless be available in the = form=20 sought in the District=92s pleadings, either in their present or in = their amended=20 form? Is it possible a court would grant the District a simple=20 declaration, without more, that the formation of the Settlement = Agreement or the=20 enactment of the Reconciliation Act =93violated=94 or = =93breached=94 s. 3(c) of=20 the Local Government Act? Or, as was suggested in the = course of the=20 hearing, could a court make a simple declaration (of fact) that the = Province had=20 failed to give notice to or consult with the District before entering = the=20 Agreement or enacting the statute?

[49] =20 Counsel for the Musqueam objected strongly to our considering = these=20 questions on the bases that they were only raised on appeal, and that it = is not=20 in the interests of justice for this litigation to be protracted = further. I must=20 acknowledge, however, that this division of the Court was in part = responsible=20 for raising these questions during the hearing, which questions I see as = incidental to the issues that were already under appeal. The litigation = has not=20 been unduly protracted by the District=92s =93new=94 argument, and = indeed will go on=20 long after this appeal has been disposed of. Any prejudice to the = parties can be=20 largely offset by a costs order, if appropriate.

[50] =20 In arguing that the forms of declaration I have described in = para. 48=20 are possible outcomes, the District relies strongly on = R. 5(22) of=20 the Supreme Court Rules (now Supreme Court Rule 20-4), which is = the=20 modern version of a rule first introduced in England in 1875 to overcome = a=20 common law rule to the contrary. Rule 5(22) provided:

No proceeding shall = be open to=20 objection on the ground that only a declaratory order is sought, and the = court=20 may make binding declarations of right whether or not consequential = relief is or=20 could be claimed.

(See Zamir, The Declaratory Judgment (1962) = at 10-1;=20 Kourtessis v. M.N.R. [1993] 2 S.C.R. 53; Guaranty Trust Co. of = New=20 York v. Hannay & Co. [1915] 2 K.B. 536 (C.A.) at 557-62; = Kaska=20 Dena v. British Columbia (Attorney General) 2008 BCCA 455, 85 = BC.L.R. (4th)=20 69, at para. 12. See also the Crown Proceeding Act, R.S.B.C. = 1996, c. 89,=20 s. 11(2).)

[51] =20 There is no doubt that the balance of judicial opinion is in = favour of=20 the liberal exercise of the declaratory power (Zamir, supra, at = 12,=20 citing Dyson v. Attorney General [1911] 1 K.B. 410; see also = Zamir and=20 Woolf, The Declaratory Judgment (2002) at =A7 3.012). At the same = time, it=20 is also clear in Canada that a declaratory order is not available to = provide an=20 opinion that will not settle a =93real=94 dispute between the parties. = As Dickson=20 C.J.C. stated for the majority in Operation Dismantle Inc. v. = Canada=20 [1985] 1 S.C.R. 441:

=85 the = preventative function of=20 the declaratory judgment must be based on more than mere hypothetical=20 consequences; there must be a cognizable threat to a legal interest = before=20 the courts will entertain the use of its process as a preventive = measure. As=20 this Court stated in Solosky v. The Queen, [1980] 1 S.C.R. 821, = a=20 declaration could issue to affect future rights, but not where the = dispute in=20 issue was merely speculative. =85 [At 457.]

Dickson J. also stated in = Canada=20 v. Solosky [1980] 1 S.C.R. 821, in an oft-quoted passage:

Declaratory relief = is a remedy=20 neither constrained by form nor bounded by substantive content, which = avails=20 persons sharing a legal relationship, in respect of which a =91real = issue=20 concerning the relative interests of each has been raised and falls to = be=20 determined. [At 830.]

[52] =20 Given my conclusion that s. 3(c) does not create any obligation = on the=20 part of the Province or any right on the part of the GVRD, I do not see = how=20 declaratory relief of the kind now sought by the GVRD could affect a = legal=20 interest, determine any =93right=94 or =93entitlement=94 of the = District, or even move=20 this proceeding along. No legal purpose would be served by such a = declaration. As noted by L. Sarna in The Law of Declaratory=20 Judgments (3rd ed., 2007), before a declaration will be granted with = respect=20 to an issue of statutory interpretation, the provision in question must=20 =93substantively and actively refer to rights. The court will = refuse to=20 adjudicate on preambles...=94 (At 137; my emphasis.) I conclude = that it is=20 plain and obvious the District could not succeed in obtaining even the = limited=20 declaration it now seeks.

Disposition

[53] =20 With thanks to all counsel, I would dismiss the appeal.

=93The Honourable Madam Justice = Newbury=94

I agree:

=93The=20 Honourable Madam Justice Levine=94

I agree:

=93The Honourable = Madam Justice=20 Bennett=94