[54] There is some support for the latter proposition in the decisions of the Supreme Court of Canada in Manitoba Metis Federation Inc v Canada (Attorney-General)66 and in Canada (Prime Minister) v Khadr67 both of which are referred to in the more recent decision of Mikisew Cree First Nation v Canada (Governor General in Council).68 A majority of the Court in the latter case indicated declaratory relief may be available post-enactment to provide a remedy in the context of a challenge to legislation on the basis it is inconsistent with s 35 of the Constitution Act 1982, which recognises and affirms aboriginal and treaty rights.69 In discussing the relief available post-enactment of legislation, Karakatsanis J noted that a declaration was available without a cause of action.70 [55] Nor is the declaration without consequence. It would have some implications in the context of a complaint under the Optional Protocol to the ICCPR.71 Tipping J delivering the judgment of the Court of Appeal in Moonen noted that a “judicial indication” of inconsistency “will be of value should the matter come to be examined by the Human Rights Committee”.72 And, the Court of Appeal suggested, “It may also be of assistance to Parliament if the subject arises in that forum.”73 [56] The making of a formal declaration is also another means of vindicating the right in the sense of marking and upholding the value and importance of the right.74 Accordingly, while Cooke P in Temese v Police indicated that a statement by the court 66 67 68 69 70 71 72 73 74 Manitoba Metis Federation Inc v Canada (Attorney-General) 2013 SCC 14, [2013] 1 SCR 623 at [143] per McLachlin CJ and Karakatsanis J (on behalf of McLachlin CJ, LeBel, Fish, Abella, Cromwell and Karakatsanis JJ). Canada (Prime Minister) v Khadr 2010 SCC 3, [2010] 1 SCR 44 at [2], and see also [46]–[47]. Mikisew Cree First Nation v Canada (Governor General in Council) 2018 SCC 40. At [47] per Karakatsanis J (delivering the reasons of Wagner CJ, Karakatsanis and Gascon JJ), citing Manitoba Metis, above n 66, at [69] and [143]. See also [63]–[64] per Abella J (delivering the reasons of Abella and Martin JJ), [145] per Brown J and [167] per Rowe J (delivering the reasons of Moldaver, Côté and Rowe JJ). At [47]. Abella J also observed that declarations are available regardless of whether consequential relief is available at [97], citing Canada (Prime Minister) v Khadr, above n 67, at [46]–[47]. Optional Protocol to the International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976). Moonen, above n 32, at [20]. This was in the context of whether there was utility in the Court considering whether or not a provision was inconsistent with s 5 of the Bill of Rights albeit the effect of s 4 was that the Court would have to apply the provision. At [20]. Vogel v Attorney-General [2013] NZCA 545, [2014] NZAR 67 at [83]–[84]. See also Taunoa, above n 28, at [107] per Elias CJ, [300] per Tipping J and [368] per McGrath J; Manga v Attorney-General [2000] 2 NZLR 65 (HC) at [126]; and Golder v United Kingdom (1975) 1 EHRR 524 (ECHR) at 541.