exercise the rights of minorities. They conclude
that Bill C-31 violates article 27 by imposing
restrictions on who can reside in, or share in the
economic and political life of the community.
“freedom of association with others” (article 22,
paragraph 1)has been interfered with, in that they
cannot themselves determine membership in
their small farming community. They can be
forced to share their limited land and resources
with persons who acquire Indian status and
membership, while their own direct descendants
may lose the right to be part of the community.
3.8
The Shuswap consider themselves a
distinct people and thus entitled to determine the
form and membership of their own economic,
social and political institutions, in accordance
with article I, paragraph 1, of the Covenant.
Control of membership being one of the inherent
and fundamental rights of indigenous
communities, the authors invoke article 24 of the
draft Universal Declaration of Indigenous Rights.
3.4
It is submitted that the implementation
of Bill C-31 constitutes “arbitrary and unlawful
interference” with the authors’ families (article
17, paragraph 1), on account of the fact that the
Government, and not the Band, determines who
may live on the reserve. Moreover, this
interference is said to be arbitrary in that it
distinguishes among family members on the
basis of whether they were born before or after
17 April 1985, and in that it distinguishes among
family members on the basis of whether one or
both of their parents were Indians, a purely racial
criterion contrary to articles 2, paragraph 1, and
26 of the Covenant.
3.9
As to the requirement of exhaustion of
domestic remedies, the authors state that they
endeavoured to counter the detrimental effects of
Bill C-31 by attempting to assume control of
Band membership. On 23 June 1987 they
adopted rules which were duly transmitted to the
Ministry of Indian Affairs. On 25 January 1988,
the Minister replied that the proposed rules were
inconsistent with Bill C-31, in that they excluded
certain classes of persons eligible for
reinstatement. In this connection the authors
invoke Section 35 of the Constitution Act, 1982,
which was intended to secure “aboriginal and
treaty rights of the aboriginal peoples of Canada”
against future legislative erosion. The authors
admit that, in theory, the Supreme Court of
Canada could determine that Bill C-31 is of no
effect if it is found to conflict with the authors’
“aboriginal rights”. But they claim that it would
take several years of litigation to settle the issue
at a financial cost considerably beyond the means
of three farm families. According to the authors,
an attempt to solve the matter by appeals to the
Canadian courts would entail “unreasonably
prolonged” proceedings in the sense of article 5,
paragraph 2(b), of the Optional Protocol.
Moreover, once the legal issue is determined by
the Supreme Court, it would be too late to
reverse the effects on the community of losing
some of its members and accommodating others
under Bill C-31. Therefore, the authors seek
immediate measures to preserve the status quo
pendente lite and request the Committee,
pursuant to rule 86 of the rules of procedure, to
urge the State party to refrain from making any
additions to or deletions from the Band List of
the Whispering Pines Indian Band, except as may
be necessary to ensure that every direct
descendant of the authors is included for the time
being as a member of the Band.
3.5
The implementation of Bill C-31
allegedly conflicts with article 23 of the
Covenant, in that it restricts the freedom of Band
members to choose their own spouses,
particularly considering that marriage to nonIndians would result in disenfranchising the
children.
3.6
Further, the authors claim a violation of
article 26 of the Covenant, which prohibits “any
discrimination” on the ground of race, in that it
makes racial quantum, rather than cultural factors
and , individual allegiance, the basis for
allocating indigenous rights and indigenous
peoples’ lands. Traditional Shuswap law
regarded as Shuswap anyone who was born in
the territory or raised as a Shuswap. Bill C-31
requires that, in the future, both parents be
“Indian” as defined under Canadian law.
Children born to a Shuswap mother or father and
raised on Shuswap territory in the Shuswap
culture would still be denied Indian status and
Band membership.
3.7
Concerning article 27. of the Covenant,
the authors point out that they regard themselves
as an indigenous people rather than an “ethnic
(or) linguistic minority”, but that since the
indigenous and minority categories overlap,
indigenous peoples should also be entitled to
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