domestic remedies, the State party refers to the
Committee’s decisions in J. R. C. v. Costa Rica
(communication No. 296/1988)4 and S. H. B. v.
Canada (communication No. 192/1985)5 where,
in similar circumstances, the communications
were declared inadmissible.
The State party’s observations and the authors’
comments
4.1
The State party contends that the
communication is inadmissible ratione personae,
pursuant to article 1 of the Optional Protocol. It
notes that the authors contend that Bill C-31
threatens to deprive their descendants of Indian
status, .and observes that the victims of such a
claim would be children born after 1985, of one
parent who is non-Indian and another parent who
alone cannot pass on Indian status (i.e. a child
out of a marriage between a status Indian and a
non- status Indian, who marries a non-status
Indian). In the State party’s opinion, the authors
have not shown that there are in the Band
individuals meeting these criteria and who
therefore could claim to be victims. The State
party further contends that the Committee itself
has repeatedly acknowledged that it will not
entertain claims of abstract or potential breaches
of the Covenant; it adds that the communication
does not identify anyone currently affected by
Bill C- 31, and that the communication is
inadmissible on that ground.
4.4
Moreover, the State party points out that
judicial remedies remain available to the authors:
thus, it remains open to them to apply to the
Federal Court, Trial Division, for a declaration
that “aboriginal rights” include control over the
Band’s own membership. The State party notes
that the recent judgment of the Supreme Court of
Canada in the case of R. v. Sparrow clarifies
both meaning and scope of the “aboriginal
rights” referred to in Section 35 of the
Constitution Act 1982; in this case, it was held
that the Government must meet exacting
standards before implementing actions that
impinge upon the enjoyment of existing
aboriginal and treaty rights. The State party
submits that this judgment underlines the
importance of first allowing local courts to
address national issues.
4.2
The State party submits that the authors
have not complied with their obligation to
exhaust domestic remedies. It emphasized
that article 5, paragraph 2(b), of the Optional
Protocol reflects a fundamental principle of
general international law that local remedies be
exhausted before resorting to an international
instance. This rule ensures that domestic
courts are not superseded by an international
organ, and that a State has an opportunity
to correct any wrong which may be shown
before its internal fora, before that State’s
international responsibility is engaged. Domestic
courts are generally better placed to determine
the facts of and the law applicable to any
given case, and where necessary, to enforce
an appropriate remedy. In the present case,
mere doubts about the success of remedies
does not absolve the authors from resorting
to them, a principle recognized by the Committee
in its decisions in cases R. T. v. France
(communication No. 262/1987)2 and S. S. v.
Norway (communication No. 79/1980).3
4.5
Further, it is open to the authors to file
an action in the same court, based on breach(es)
of the Canadian Charter of Rights and Freedoms.
Among the rights guaranteed in the Charter are
the right to freedom of association (s. 2(d)), the
right not to be deprived of life, liberty or security
of the person except in accordance with
principles of fundamental justice (s. 7), and the
right to equality “before and under the law and ...
the right to equal protection and equal benefit of
the law without discrimination based on race,
national or ethnic origin, colour, religion, sex,
age or mental or physical disability” (s. 15).
These rights are guaranteed to individuals in
relation to federal and provincial governments
(s. 32). Anyone whose Charter rights have been
infringed may apply to a competent court
jurisdiction to obtain such remedy as the court
considers appropriate and just within the
circumstances (s. 24).
4.3
With regard to the alleged prohibitive
cost of, and length of time for exhausting
4.6
The State party notes that the two
avenues of recourse described above have been
tried by a number of Indian Bands. In Twinn v. R.
members of six Alberta Indian Bands applied to
the Federal court Trial Division, for a
2
Declared inadmissible at the Committee’s thirty-fifth
session. See Selected Decisions, vol. II.
3
Declared inadmissible at the Committee’s fifteenth
session. See Selected Decisions, vol. I.
4
Declared inadmissible at the Committee’s thirty-fifth
session. See Selected Decisions, vol. III.
5
See ibid., Forty-second Session, Supplement No. 40
(A/42/40).
19
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents