Submitted by: Sandra Lovelace on 29 December 1977
Alleged victim: The author
State party: Canada
Date of adoption of views: 30 July 1981 (thirteenth session)
of the Government of Canada to
the Committee's views*
Response of Canada to the views of the Human Rights Committee
1. On 19 November 1982, the Secretary-General of the United Nations, in accordance with the request of the Human Rights Committee, at its seventeenth session, informed Canada of the Committee's wish to receive any pertinent information on measures taken by Canada in respect of the views adopted by the Human Rights Committee on 30 July 1981, in regard to communication No. 24/1977. In response to this request, Canada provides the following information:
Information on measures taken with respect to communication No. 24/1977
2. In her communication to the Human Rights Committee on 29 December 1977, pursuant to the Optional Protocol to the International Covenant on Civil and Political Rights, Sandra Lovelace indicated that on 23 May 1970 she lost her Indian status upon marrying a non-Indian, as a result of the operation of s.12 (1) (b) of the Indian Act, R.S.C. 1970 c. I-6. Section 12 (1) (b) reads as follows:
"12.(1) The following persons are not entitled to be registered [as Indians], namely . . .
"(b) a woman who has married a person who is not an Indian
Sandra Lovelace therefore claimed to be a victim of a violation of the rights set forth in articles 2 (1), 23 (1) and (4), 26 and 27 of the International Covenant on Civil and Political Rights.
3. However, because she had lost her Indian status before the Covenant and Optional Protocol came into effect in Canada on 19 August 1976, the Committee declined to consider whether article 26 of the Covenant, which guarantees the right to equality before the law and the equal protection of the law, had been violated (see para. 18 of the views it adopted in regard to communication No. 24/1977). Also, it held that the rights aimed at protecting family life and children were only indirectly at stake and, therefore, it did not find there to have been a contravention of article 23 (idem). However, it concluded that the effects of her loss of status occurring after the Covenant came into force on her right to live on the reserve, a right which she desired to exercise because of the dissolution of her marriage, resulted in the particular circumstances of her case in a contravention of article 27 of the Covenant (see para. 17 of its views). In particular, it held that the author of the communication had been denied the right, guaranteed by article 27, to persons belonging to minorities to enjoy her own culture and to use her own language in community with other members of her group.
4. Although Canada was not found to be in contravention of article 26 of the Covenant by the Human Rights Committee, it nevertheless appreciates the concern of Indian women, and, indeed, of many other persons in Canada and elsewhere in the international community, that s.12 (1) (b) of the Indian Act may constitute discrimination on the basis of sex. It notes that, in a recent communication to the Human Rights Committee brought by P. S. S., the issue has again been raised of whether s.12 (1) (b) of the Indian Act contravenes article 26 of the Covenant, in this case by a woman who married a nonIndian after the coming into force of the Covenant. Also, as a result of the decision of the Human Rights Committee in regard to communication No. 24/1977 brought by Sandra Lovelace, Canada is anxious to amend the Indian Act so as to render itself in fuller compliance with its international obligations pursuant to article 27 of the International Covenant on Civil and Political Rights.
5. Canada is committed to the removal from the Indian Act of any provisions which discriminate on the basis of sex or in some other way offend against human rights; it is also desirous that the Indian community have a significant role to play in determining what new provisions on Indian status the Indian Act should contain.
6. The issue of how Indian status should be defined in the Indian Act is, however, a matter of considerable controversy amongst Indian people. In order to expedite the amendment of the Indian Act, a Parliamentary Sub-Committee on Indian Women and the Indian Act was formed on 4 August 1982. This Sub-Committee conducted five days of hearings, in which it heard the testimony of 41 witnesses, most of whom were Indian persons. The Sub-Committee was addressed on 8 September 1982 by the Honourable John C. Munro, Minister of Indian Affairs and Northern Development, who made at that time the following statement:
"The Federal Government's position on the issue is perfectly clear. We are committed to bring in amendments to the [Indian] Act that will end discrimination based on sex. An integral part of that commitment is to proceed to the drafting of amendments only after full and open consultation with the Indian people."
7. On 21 September 1982, the Sub-Committee tabled its report, a copy of which is appended to the present document for the consideration of the Human Rights Committee. It recommended among other things that the Indian Act should be amended, so that Indian women no longer lose their Indian status upon marrying nonIndians (p. 39 of the report), and that Indian women who had previously lost their status should, upon application, be entitled to regain it (pp. 40-41 of the report). Moreover, it recommended that persons who regain their Indian status also be entitled to regain their band membership (pp. 40-41 of the report), in which case they will be entitled to live on the reserve and participate in the life of the Indian community. The Sub-Committee also recommended that Parliament provide sufficient funds to make these measures of reinstatement feasible (pp. 41-42 of the report).
8. The report was greeted favourably by the Minister of Indian Affairs and Northern Development, although he expressed some concern that many interested Indian people had not had a chance to appear before the Sub-Committee. He reiterated, however, the view of Canada that the amendment of the Indian Act so as to remove any provisions discriminating on the basis of sex is a matter of urgency. The necessary steps are now being taken to develop legislation to amend the Indian Act.
9. In April 1982, the Canadian Charter of Rights and Freedoms came into effect as part of the constitution of Canada. A copy of the Charter is appended to this document for the consideration of the Human Rights Committee. Section 15 (1) of the Charter, which comes into effect in April 1985, reads as follows:
"15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."
Thus, as of April 1985, there will be an available domestic remedy in Canada for persons who feel they have been discriminated against on the basis of sex by federal laws. The enactment of the Charter is an indication of the reality of Canada's respect for human rights, and provides an additional reason for Canada to be anxious to amend any laws which offend against human rights. The Federal Government is at present undertaking a review of all its legislation to ensure that any laws which are inconsistent with the Charter are amended or repealed.
10. Sections 27 and 28 of the Charter, already in effect, are also of relevance to any claim by an Indian woman that her human rights have been violated by s.12 (1) (b) of the Indian Act. Section 27 is a constitutional recognition of the value of the diverse cultural heritages of Canadians, and s.28 espouses the principle of equality between men and women. These sections read as follows:
"27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
"28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons."
11. There are also provisions of the Constitution Act, 1982 (of which the Charter comprises Part I), which indicate Canada's respect for the integrity of its native peoples. Thus, s.25 of the Charter reads as follows:
"25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
"(a) Any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763;
"(b) Any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claim settlement."
Part II of the Constitution Act, 1982, is entitled "Rights of the Aboriginal
Peoples of Canada", and is comprised by s.35, which reads as follows:
"35.(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
"(2) In this Act, 'aboriginal peoples of Canada' includes the Indian, Inuit and Metis peoples of Canada."
And Part IV of the Act, entitled "Constitutional Conference", requires Canada to convene a constitutional conference on matters affecting native peoples. This conference was held on 15 and 16 March 1983. At this conference, the Minister of Indian and Northern Affairs confirmed his intention to move forward as quickly as possible with the process to amend the Indian Act and eliminate offensive sections. Furthermore, a Constitutional Accord on Aboriginal Rights was signed by the federal and provincial governments with the participation of aboriginal groups. In the Accord it was agreed to hold a further conference on aboriginal matters within the year. It was also agreed to take the necessary steps to amend section 35 of the Constitution Act, 1982, set out above, so as to include the principle of equality between men and women in regard to aboriginal and treaty matters in the following terms:
"35.(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (l) are guaranteed equally to male and female persons."
12. Article 2 (3) (a) of the Covenant requires that States parties ensure that there are effective remedies for any persons whose rights or freedoms, as recognized in the Covenant, have been violated, notwithstanding that the violation has been committed by persons acting in an official capacity. Sections 24 (1) and 32 (1) of the Canadian Charter of Rights and Freedoms bring Canada into compliance with this aspect of the Covenant. They read as follows:
"24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have
been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate and just
in the circumstances.
"32.(1) This Charter applies
"(a) To the Parliament and Government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories;
"(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province."
13. Thus, the Constitutional Act, 1982, is a legal expression, in an effective manner, of the aims of Canada to end discrimination and to respect aboriginal rights and freedoms. These are the same aims expressed by the Minister of Indian Affairs and Northern Development in the passage quoted above in regard to the amendment of the Indian Act.
14. Canada has responded, in a constructive and responsible manner, to the views communicated to it by the Human Rights Committee in regard to communication No. 24/1977. It has taken substantial steps towards amending s.12 (1) (b) of the Indian Act and, indeed, other sections of the Indian Act which may discriminate on the basis of sex or otherwise offend against human rights, and remains committed to the amendment of these sections in the near future.
15. Also, in April 1982, the Canadian Charter of Rights and Freedoms came into effect and it contains important guarantees of fundamental rights and freedoms in Canada. In particular, s.15, when it comes into effect in April 1985, will provide an effective remedy for anyone who alleges that his or her rights to equality before the law and the equal protection of the law have been violated by federal legislation, and other sections of the charter reflect Canada's respect for ethnic and aboriginal rights.
* For the Committee's views, see Selected Decisions . - ., vol. 1, p. 83.