Sandra Lovelace V. Canada, Communication No. R.

Citation:

Sandra Lovelace v. Canada, Communication No. R.6/24, U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981).

Summary:

Section 12 (1) (b) of the Indian Act stated that an Indian woman who married an Indian man would lose her Indian status.

The first argument Lovelace made against the Indian Act was that it discriminated based on sex, as an Indian man who married an Indian woman did not lose his Indian status. This violated ICCPR articles 2 and 3, which outlawed gender-based discrimination. The government countered this with the argument that this discrimination is in fact designed to protect Indian minorities in accordance with the ICCPR’s article 27. They stated that Indian communities were patrilineal, and that reserve lands were thought

to be more threatened by non-Indian men than women. And thus, legislative changes could not be made quickly in order to avoid endangering Indian communities. Lovelace countered this with the statement that it was untrue that Indian families were legally patrilineal, and that those reasons don’t justify gender-based discrimination.
The Human Rights Committee also brought up how the Indian Act also disadvantaged Indian women in other ways.

Violating ICCPR article 23, which dealt with protection of family, the act dissuaded Indian women from marrying non-Indian men. The act also violated article 27, which ensured protection of ethnic and linguistic minorities.

Another major issue that was brought up by the Human Rights Committee involved the timing of Lovelace’s marriage (and subsequent loss of Indian status) and the time the ICCPR (the document that the Indian Act violated) came into effect for Canada. As Lovelace lost her Indian status on 23 May 1970, before the ICCPR came into effect on 19 Aug 1976, the ICCPR would only apply if her loss of status continued to have detrimental effects on her life – effects that in and of them would be considered a violation of the ICCPR.

An Indian who is not a member of a band is not entitled to live on a reserve, but not prohibited by law from doing so if members of that band permit it. Under section 30 of the Indian Act, trespassing on a reserve is an offence; under section 31, members of that band may seek relief or remedy against a person who

trespasses.
Indian Act governs the right to reside on a reserve in order to honour treaty obligations regarding Indians’ exclusive use of land.

As a result of her marriage, Lovelace was denied the right to live on the reserve. After her marriage, Lovelace continues to live on the reserve. However, she cannot live permanently there or own property, as priority is given to register Indians. Her current living situation is also shaky: it is against the law of the local Band Council, and she is only able to stay because of individual support from tribe members.

While Lovelace lost her Indian status and with it access to government assistance in several areas, she also gained access to similar assistance that gov’t provides for ordinary citizens. Thus, she is enjoying all the rights recognized by the ICCPR.

Statement from Human Rights Committee (summary of rights/assistance lost)

(from earlier)

Thus, the significant matter is (9). It is directly applicable to article 27 of the ICCPR:

"In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own

language."

In being denied the legal right to live on her reserve, is Lovelace being denied the right to belong to a minority, to enjoy her culture, and to use her language with others in her community?

In order to maintain ties with a community on a reserve, normally a person must belong to that minority in the eyes of the ICCPR. As Lovelace is ethnically an Indian and has only been absent from her reserve for a few years, she is in the eyes of the ICCPR belonging to this minority. Thus, she is entitled to the benefits of article 27 of the ICCPR.

Whatever purpose the Indian Act may serve, in Lovelace’s specific case, denying her the right to reside on her reserve is unreasonable and unnecessary to the preservation of the tribe’s identity. Thus, not recognizing her as a Maliseet Indian is an unjustifiable denial of her rights under article 27 of the ICCPR.

Of the ICCPR, article 27 rights are most applicable to her situation.
Articles 2 (1), 3, 23 (1) (4) and 26 were also violated. Sex discrimination is prominent.
Article 12 (rights to choose one’s residence) and articles 17, 23, and 24 (protection of family life and children) are only indirectly applicable.