B. Views under article 5(4) of the Optional Protocol Communication No. 205/1986 Submitted by: Grand Chief Donald Marshall, Grand Captain Alexander Denny and Adviser Simon Marshall, as officers of the Grand Council of the Mikmaq tribal society Date of communication: 30 January 1986 Alleged victims: The authors and the Mikmaq tribal society State party: Canada Date of adoption of Views: 4 November 1991 (forty-third session)* Subject matter: Refusal of the State party to permit the representation of the Mikmaq tribal community at constitutional conferences pursuant to article 35(1) of the Constitution Act, 1982 The facts as submitted by the authors 2.1 The authors state that the Mikmaqs are a people who have lived in Mikmakik, their traditional territories in North America, since time immemorial and that they, as a free and independent nation, concluded treaties with the French and British colonial authorities, which guaranteed their separate national identity and rights of hunting, fishing and trading throughout Nova Scotia. It is further stated that for more than 100 years Mikmaq territorial and political rights have been in dispute with the Government of Canada, which claimed absolute sovereignty over Mikmakik by virtue of its independence from the United Kingdom in 1867. It is claimed, however, that the Mikmaqs’ right of selfdetermination has never been surrendered and that their land, Mikmakik, must be considered as a non-self-governing territory within the meaning of the Charter of the United Nations. Procedural issues: Notion of victim—No violation—Incompatibility ratione materiae Substantive issues: Self-determination— Collective character of the right—Right to take part in the conduct of public affairs Articles of the Covenant: 1(1) and 25(a) Article of the Optional Protocol: 1 1. The authors of the communication (initial letter of 30 January 1986 and subsequent correspondence) are Grand Chief Donald Marshall, Grand Captain Alexander Denny and Adviser Simon Marshall, the officers of the Grand Council of the Mikmaq tribal society in Canada. They submit the communication both as individually affected alleged victims and as trustees for the welfare and the rights of the Mikmaq people as a whole. Grand Chief Donald Marshall passed away in August 1991. The communication is, however, maintained by the other authors, who continue to be responsible for the conduct of the affairs of the Mikmaq Grand Council. They are represented by counsel. 2.2 By Constitution Act, 1982, the Government of Canada “recognized and affirmed” the “existing aboriginal and treaty rights of the aboriginal peoples of Canada” (art. 35(1)), comprising the Indian, Inuit and Métis peoples of Canada (art. 35(2)). With a view to further identifying and clarifying these rights, the Constitution Act envisaged a process which would include a constitutional conference to be convened by the Prime Minister of Canada and attended by the first ministers of the provinces and invited “representatives of the aboriginal peoples of Canada”. The Government of Canada and the provincial governments committed themselves to the principle that discussions would take place at such a conference before any constitutional amendments would be made and included in the Constitution of Canada in respect of matters that directly affect the aboriginal peoples, including the identification and the definition of the rights of those peoples (articles 35(1) and 37(1) and (2)). * The communication had been declared admissible on 25 July 1990, in so far as it could raise issues under article 25 (a). The Committee had earlier determined in another communication that a claim of an alleged violation of article 1 of the Covenant cannot be brought under the Optional Protocol (see Views of the Committee in communication No.167/1984, Lubicon Lake v .Canada, adopted on 26 March 1990, paragraph 32(1), reproduced in Selected Decisions under the Optional Protocol, vol. 3. p. 78). 40