anyone with status under Bill C-31. Thus, the children of P.E. and V.E. will
be ineligible to become Band members since P.E. and V.E. married non-Indians;
counsel adds that it is unlikely that any of the future children of other
registered Band members will be eligible. This situation, it is submitted,
does not involve hypothetical and future violations of the Covenant: some of
the Band's children will grow up in the knowledge that they can protect their
cultural heritage only if they marry an Indian registered under Bill C-31.
The Bill is thus said to constitute an infringement on the right to marry even
in circumstances -where no individualized child has as of yet been
disenfranchised.
Issues and proceedings before the Committee
6.1 Before considering any claims contained in a communication, the Human
Eights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant,
6.2 With respect to the authors' claim of a violation of article 1 of the
Covenant, the Committee recalls its constant jurisprudence that pursuant to
article 1 of the Optional Protocol, it may receive and consider communications
only if they emanate from individuals who claim that their individual rights
have been violated by a State party to the Optional Protocol. While all
people have the right to self-determination and the right freely to determine
their political status, pursue their economic, social and cultural development
(and may, for their own ends, freely dispose of their natural wealth and
resources) the Committee has already decided that no claim for selfdetermination may be brought under the Optional Protocol. 3/ Thus, this
aspect of the communication is inadmissible under article 1 of the Optional
Protocol.
6.3 With regard to the requirement of exhaustion of domestic remedies, the
Committee has noted the authors' arguments that they have unsuccessfully
endeavoured to challenge Bill C-31 by attempting to assume control of Band
membership. It observes, however, that the authors themselves concede that
the Supreme Court of Canada could rule Bill C-31 to have no effect where it
conflicts with the authors' "aboriginal rights", i.e. the desired control of
Band membership.
6.4 The Committee further observes that other Indian bands have instituted
proceedings before the Federal Courts, the outcome of which is pending,
notably in the case of Twinn v. B.. and that the alleged high cost of
litigation can, undetf specific circumstances, be offset by funding provided
pursuant to a number of programmes instituted by the State party. As to the
authors' concern about the potential length of proceedings, the Committee
reiterates its constant jurisprudence that fears about the length of
proceedings do not absolve authors from the requirement of at least making a
reasonable effort to exhaust domestic remedies (A. and S.H. v. Norway). h/ In
this light, the Committee finds that available domestic remedies that may
indeed prove to be effective remain to be exhausted.
7.
The Human Eights Committee therefore decides:
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