Communication No. 358/1989
Submitted by: R. L., M. B., M. H. (names deleted) and 14 other members of the Whispering Pines
Band (represented by counsel)
Date of communication: 1 April 1989
Alleged victims: The authors
State party: Canada
Declared inadmissible: 5 November 1991 (forty-third session)
Subject matter: Interpretation of Bill C-31
regulating “Indian” status*
engage in raising cattle on 1,200 acres (750 ha)
of land.
Procedural issues: Notion of victim—Nonexhaustion of domestic remedies
2.2
The communication challenges certain
aspects of Bill C-31, i.e. the legislation which
was enacted by the Government of Canada in
1985 in response to the recommendations of the
Human Rights Committee in its Views in the
case of Sandra Lovelace v. Canada.1 By virtue of
Bill C-31 certain persons formerly deprived of
“Indian” status on the basis of sex were
reinstated, but at the same time, other persons
who formerly enjoyed Indian status were
deprived of it on the basis of a racial quota.
Substantive issues: Right of self-determination—
Collective character of this right
Articles of the Covenant: 1(1) and 27
Articles of the Optional Protocol: 1 and 5(2)(b)
1.
The authors of the communication
(initial submission dated 1 April 1989
and subsequent correspondence) are Chief R. L.,
M. B., M. H. and 14 other members of the
Whispering Pines Indian Band, residing in the
province of British Columbia, Canada. The
authors allege violations by the Government of
Canada of article 1, paragraph 1, article 2,
paragraph 1, articles 17, 22, 23, 26 and 27 of the
International Covenant on Civil and Political
Rights. They are represented by counsel.
2.3
Owing to the small size of the Band,
members frequently marry non-members.
Because of its geographical isolation from other
Shuswap communities and in view of the relative
proximity to the city of Kamloops, social contact
and inter-marriage with non-Indians has been
common. Traditional Indian membership rules
allowed for considerable flexibility and
facilitated the incorporation of non- members
into the various bands. Problems allegedly
started with the enactment of the original Indian
Act, 1876, which imposed the Euro-Canadian
concept of patrilineal kinship and inheritance on
the indigenous peoples of Canada. To be
considered an “Indian” under the Indian Act, a
person had to be the biological child of an Indian
father, or have been adopted by an Indian father
in accordance with Canadian family law. The
Indian Act also provided that women would take
their legal status from their husbands.
A Shuswap woman who married a non-Indian
Canadian continued to belong to her childhood
band under Shuswap law, .but became “white”
under the Indian Act. Likewise, although a
“white” Canadian woman who married a
Shuswap became a member of her husband’s
The facts as submitted by the authors
2.1
The Whispering Pines Indian Band
belongs to the Shuswap Nation in south-central
British Columbia. The Shuswap are the
indigenous people of the region and constitute a
single social, cultural, political and linguistic
community distinct both from Euro-Canadians
and from neighbouring indigenous peoples.
Approximately half of the contemporary
members of the Band live in a small farming
community numbering about 26 persons and
*
The Human Rights Committee, in an early decision
Sandra Lovelace v. Canada, recommended the
promulgation of a Bill regulating the status of
“Indians” within Canada (see communication No.
24/1977; Selected Decisions of the Human Rights
Committee, vol. 1, pp. 83 et seq.). See for a similar
position the Committee’s Views in communication
No. 167/1984 (B. Ominayak and the Lubicon Lake
Band v. Canada), 26 March 1990, paragraph 32.1,
contained in Selected Decisions under the Optional
Protocol, vol. 3, p. 78.
1
Communication No. 24/1977; see Selected Decisions
of the Human Rights Committee, vol. I, pp. 83 et seq.
See also the statement by the Government of Canada
concerning the implementation of the Views in the
case of Lovelace, in ibid., Selected Decisions, vol. II,
pp. 224 et seq.
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