Sandra Lovelace v. Canada, Communication No. 24/1977: Canada 30/07/81, UN Doc. CCPR/C/13/D/24/1977.
Challenge of law that stripped Indian woman of Indian status after marriage to non-Indian man; Whether lost cultural benefits has continued effect; What constitutes belonging to a minority group under Article 27 of the International Convention on Civil and Political Rights (ICCPR); Whether interference with Article 27 of ICCPR was equal to a breach of the provision; Whether denial of the right to live on reserve was reasonable and objective; Equality/Non-discrimination; Discrimination based on gender.
Sandra Lovelace, a Maliseet Indian, lived on the Tobique Reservation with her parents until she married a non-Indian man. The marriage ended, and Ms. Lovelace returned to the reservation to live with her parents, however, she could not purchase a home on the reserve because the council prioritized housing for members of the group. The Canadian Indian Act stated that an Indian woman who married a non-Indian man loses her Indian status which also means a loss of access to federal programs for Indians in education, housing and social assistance, as well as losing the right to own a home or live on a reserve; to borrow funds from the Band Council for housing; to traditional hunting and fishing rights; and cultural benefits that come with living among family and friends on the reserve. Ms. Lovelace submitted an application to the Human Rights Committee, claiming that these were violations of Articles 2(1), 3, 23(1) and (4), 26 and 27 of the ICCPR because the Act only strips Indian women who marry non-Indians of their Indian status.
Ms. Lovelace lost her status before the ICCPR entered into force for Canada. The Human Rights Committee found, however, that the effects of losing cultural benefits from living on the reserve continued after the treaty entered into force. Article 27 of the ICCPR establishes that states cannot deny minority groups the right to enjoy culture. The Committee determined that people who are born and raised on a reserve, have maintained ties and want to further maintain ties to that community, are considered part of that minority group within the meaning of Article 27. Therefore, under that definition, Ms. Lovelace was a member of the Maliseet Indians, because she was raised on the reservation and left only for the few years she was married. The Committee also found that Ms. Lovelace's right to enjoy her culture was interfered with because there are no communities outside of the reserve that share the same language and culture. Finally, the Committee decided that denying Ms. Lovelace access to live on the reserve was neither reasonable nor necessary to preserve the group's identity, therefore, stripping her of Indian status denied her Article 27 rights and was a violation of the ICCPR.
Keywords: Sandra Lovelace v. Canada, Communication No. 24/1977: Canada 30/07/81, UN Doc. CCPR/C/13/D/24/1977, Cultural, Rights
The Indian Act was amended in 1985 to eliminate gender discrimination in determining Indian status. The amendments also restored status of aboriginal women who had lost status through the old legislation's "marrying out" provisions. As of June 1995, the amended Act allowed for the reinstatement of 95,429 persons, more than half of whom were women (57.2%). However, the current legislation still discriminates against certain aboriginal women, as compared to aboriginal men. In addition, the Supreme Court of British Columbia, found that the 1985 amendments did not eliminate all instances of gender discrimination because the children of women born of Indian mothers and non-Indian fathers could still be denied the right to Indian status.
This case represented an important step forward in eliminating gender discrimination in Canadian law as well as challenging the traditional gender hierarchy within the Maliseet group itself. Sandra Lovelace Nicolas has gone on to become a prominent Canadian Senator. Litigation in Canada has continued with regard to passing Indian status on to children who do not qualify as at least 50% Indian (having at least 2 Indian grandparents) on the basis of "residual discrimination" as was argued in McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153,  2 C.N.L.R. 236 (B.C.C.A.).
Refer to Secondary Sources page for links to HRC decisions in this case.