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May Advocate 2017

372 V O L . 7 5 P A R T 3 M A Y 2 0 1 7 THE ADVOCATE from the EU.15 In dissent, Lord Reed disagreed that the ECA had any effect on the Crown’s exercise of prerogative powers with respect to UK membership, 16 while Lord Carnwath disagreed that giving notice under Article 50 would itself change any laws or affect any rights.17 There is very little jurisprudence on the power to withdraw from treaties. As Lord Carnwath notes in dissent, the issue recently arose in Canada, but was not decided: The only example we were shown of withdrawal from a treaty was a recent decision of the Canadian Federal Court: Turp v. Ministry of Justice & Attorney General of Canada 2012 FC 893. That was an unsuccessful challenge by the executive to the use of its prerogative powers to withdraw from the Kyoto Protocol on Climate Change, against the background of a statute (passed against the opposition of government) requiring the preparation of plans giving effect to the Protocol. On its face it is a striking example of the use of the prerogative to frustrate the apparent intention of Parliament as expressed in legislation. However, the authority is of limited assistance in the present context, since it had been held in a previous case (Friends of the Earth v. Canada (Governor in Council), 2008 FC 118) that the obligations under the statute were not justiciable in the domestic courts.18 The tension between the prerogative power and parliamentary sovereignty was magnified in Turp due to the fact of minority government. Mr. Turp argued that the withdrawal from the Protocol was illegal, null, void and in violation of the Kyoto Protocol Implementation Act,19 the principle of the rule of law, the principle of the separation of powers and the democratic principle—in part on the basis that the executive was obliged to consult with the House of Commons and the provinces before withdrawing from the Protocol. However, the Federal Court dismissed Mr. Turp’s challenge largely, as Lord Carnwath laments, on the basis of justiciability. The general rule in both the UK and in Canada is that the exercise of the prerogative power to enter into or withdraw from treaties is not reviewable by the courts. However, Canadian courts have found the exercise of the foreign affairs prerogative justiciable where the challenge engages constitutional issues such as Charter rights20 or the Crown’s duty to consult First Nations. Hupacasath First Nation v. Canada (Foreign Affairs and International Trade Canada)21 provides a recent example. In that case, a First Nation challenged Canada’s entry into a foreign investment promotion and protection agreement with China on the basis that Canada had breached its duty to consult. The court concluded that the matter was justiciable, though it ultimately found that Canada did not have to consult the First Nation before entering into the agreement. Miller also engages constitutional issues, but of a different sort. As the court explains, the case “has nothing to do with … the wisdom of the deci-


May Advocate 2017
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