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.
4.2 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superseded by an international organ, and that a State has an opportunity to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 forums, 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 S.T. v. France {communication No. 262/1987) b_/ ana S_JLJ_J£.
Hprwag (communication No. 79/1980). £/
4.3 With regard to the alleged prohibitive cost of, and length of time for
exhausting domestic remedies, the State party refers to the Committee's
decisions in q.R.C. v. qosta Rica (communication No. 296/1988) d/ and S.H.B.
v. Canada (communication Ho. 192/1985) e_/ where, in similar circumstances, the
communications were declared inadmissible.
4.4 Moreover, the State party points out that the 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 judgement of the Supreme Court of Canada in the case of Rt 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 implementating actions that
impinge upon the enjoyment of existing aboriginal and treaty rights. The
State party submits that this judgement underlines the importance of first
allowing local courts to address national issues.
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
(sect. 2 (&)), the right ftot to be deprived of life, liberty or security of
the person except in accordance with principles of fundamental justice
(sect. 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" (sect. 15). These rights are guaranteed to
individuals in relation to federal and provincial government (sect. 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 (sect. 24).
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