under article 27 of the Covenant. This also follows from the restrictions to article 12 (I) of the
Covenant set out in article 12 (3). The Committee recognizes the need to define the category
of persons entitled to live on a reserve, for such purposes as those explained by the
Government regarding protection of its resources and preservation of the identity of its
people. However, the obligations which the Government has since undertaken under the
Covenant must also be taken into account.
16. In this respect, the Committee is of the view that statutory restrictions affecting the right
to residence on a reserve of a person belonging to the minority concerned, must have both a
reasonable and objective justification and be consistent with the other provisions of the
Covenant, read as a whole. Article 27 must be construed and applied in the light of the other
provisions mentioned above, such as articles 12, 17 and 23 in so far as they may be relevant
to the particular case, and also the provisions against discrimination, such as articles 2, 3 and
26, as the case may be. It is not necessary, however, to determine in any general manner
which restrictions may be justified under the Covenant, in particular as a result of marriage,
because the circumstances are special in the present case.
17. The case of Sandra Lovelace should be considered in the light of the fact that her
marriage to a non-Indian has broken up. It is natural that in such a situation she wishes to
return to the environment in which she was born, particularly as after the dissolution of her
marriage her main cultural attachment again was to the Maliseet band. Whatever may be the
merits of the Indian Act in other respects, it does not seem to the Committee that to deny
Sandra Lovelace the right to reside on the reserve is reasonable, or necessary to preserve the
identity of the tribe. The Committee therefore concludes that to prevent her recognition as
belonging to the band is an unjustifiable denial of her rights under article 27 of the Covenant,
read in the context of the other provisions referred to.
18. In view of this finding, the Committee does not consider it necessary to examine whether
the same facts also show separate breaches of the other rights invoked. The specific rights
most directly applicable to her situation are those under article 27 of the Covenant. The rights
to choose one's residence (article 12), and the rights aimed at protecting family life and
children (articles 17, 23 and 24) are only indirectly at stake in the present case. The facts of
the case do not seem to require further examination under those articles. The Committee's
finding of a lack of a reasonable justification for the interference with Sandra Lovelace's
rights under article 27 of the Covenant also makes it unnecessary, as suggested above (para.
12), to examine the general provisions against discrimination (arts. 2, 3 and 26) in the context
of the present case, and in particular to determine their bearing upon inequalities predating
the coming into force of the Covenant for Canada.
19. Accordingly, the Human Rights Committee, acting under article 5 (4) of the Optional
Protocol to the International Covenant on Civil and Political Rights, is of the view that the
facts of the present case, which establish that Sandra Lovelace has been denied the legal right
to reside on the Tobique Reserve, disclose a breach by Canada of article 27 of the Covenant.
APPENDIX
Individual opinion submitted by a member of the Human Rights Committee under rule 94 (3)
of the Committee's provisional rules of procedure
Communication No. 24/1977