15. The right to live on a reserve is not as such
guaranteed by article 27 of the Covenant. Moreover, the
Indian Act does not interfere directly with the functions
which are expressly mentioned in that article. However,
in the opinion of the Committee the right of Sandra
Lovelace to access to her native cuUure and language
"in community whh the other members" of her group,
has in fact been, and continues to be interfered with,
because there is no place outside the Tobique Reserve
where such a community exists. On the other hand, not
every interference can be regarded as a denial of rights
within the meaning of article 27. Restrictions on the
right to residence, by way of national legislation, cannot
be ruled out under article 27 of the Covenant. This also
follows from the restrictions to article 12 (1) of the
Covenant set out in article 12 (3). The Committee
recognizes the need to define the category of persons en
titled to live on a reserve, for such purposes as those ex
plained by the Government regarding protection of its
resources and preservation of the identity of its people.
However, the obligations which the Government has
since undertaken under the Covenant must also be taken
into account.
therefore concludes that to prevent her recognition as
belonging to the band is an unjustifiable denial of her
rights under article 27 of the Covenant, read in the con
text of the other provisions referred to.
16. In this respect, the Committee is of the view that
statutory restrictions affecting the right to residence on
a reserve of a person belonging to the minority con
cerned, must have both a reasonable and objective
justification and be consistent with the other provisions
of the Covenant, read as a whole. Article 27 must be
construed and apphed in the hght of the other provi
sions mentioned above, such as articles 12, 17 and 23 in
so far as they may be relevant to the particular case, and
also the provisions against discrimination, such as ar
ticles 2, 3 and 26, as the case may be. It is not necessary,
however, to determine in any general manner which
restrictions may be justified under the Covenant, in par
ticular as a result of marriage, because the cir
cumstances are special in the present case.
19. Accordingly, the Human Rights Committee,
acting under article 5 (4) of the Optional Protocol to the
International Covenant on Civil and Political Rights, is
of the view that the facts of the present case, which
establish that Sandra Lovelace has been denied the legal
right to reside on the Tobique Reserve, disclose a breach
by Canada of article 27 of the Covenant.
18. In view of this finding, the Committee does not
consider it necessary to examine whether the same facts
also show separate breaches of the other rights invoked.
The specific rights most directly applicable to her situa
tion are those under article 27 of the Covenant. The
rights to choose one's residence (article 12), and the
rights aimed at protecting family life and children (ar
ticles 17, 23 and 24) are only indirectly at stake in the
present case. The facts of the case do not seem to re
quire further examination under those articles. The
Committee's finding of a lack of a reasonable justifica
tion for the interference with Sandra Lovelace's rights
under article 27 of the Covenant also makes it un
necessary, as suggested above (para. 12), to examine the
general provisions against discrimination (arts. 2, 3
and 26) in the context of the present case, and in par
ticular to determine their bearing upon inequalities
predating the coming into force of the Covenant for
Canada.
APPENDIX
Individual opinion submitted by a member of the Human Rights
Committee under rule 94 (3) of the Committee's provisional rules of
procedure
Communication
17. The case of Sandra Lovelace should be con
sidered in the hght of the fact that her marriage to a
non-Indian has broken up. It is natural that in such a
situation she wishes to return to the environment in
which she was born, particularly as after the dissolution
of her marriage her main cultural attachment again was
to the Mahseet band. Whatever may be the merits of the
Indian Act in other respects, it does not seem to the
Committee that to deny Sandra Lovelace the right to
reside on the reserve is reasonable, or necessary to
preserve the identity of the tribe. The Committee
No.
24/1977
Individual opinion appended to the Committee's views at the re
quest of Mr. Néjib Bouziri:
[Original: French]
[30 July 1981]
In the Lovelace case, not only article 27 but also articles 2
(para. 1), 3, 23 (paras. I and 4) and 26 of the Covenant have been
breached, for some of the provisions of the Indian Act are
discriminatory, particularly as between men and women. The Act is
still in force and, even though the Lovelace case arose before the
date on which the Covenant became applicable in Canada,
Mrs. Lovelace is still suffering from the adverse discriminatory
effects of the Act in matters other than that covered by article 27.
87
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents