Lovelace v. Canada
The 1981 Lovelace v. Canada case is an early, iconic example of the →Human Rights Committee’s jurisprudence on →belonging to a minority. To sum up the Committee’s respective views, whether somebody belongs to a minority depends on objective criteria (language, religion, ethnic characteristics, cultural customs etc.) as well as the subjective feeling of the person concerned. In this context, possible (non-)recognition by the national legal system is of subsidiary significance. The author of the case was an ethnic Maliseet Indian who was born and brought up on the Tobique Reserve but lost her rights and status as such in accordance with Canada’s Indian Act after she married a non-Indian. The case also raised the issue of discrimination on the grounds of sex, since the law did not equally adversely impact Canadian Indian men who married non-Indian women. Sandra Lovelace raised specific issues in her complaint pertaining to her inability to continue living on the Tobique Reserve as a result of her marriage. The Committee considered the merits of the Indian Act in preserving the identity of the Maliseet tribe, but ultimately concluded that in light of the dissolution of the applicant’s marriage to a non-Indian, there was no reasonable or necessary justification to deny her the right to return to the reserve. „Persons who are born and brought up on a reserve, who have kept ties with their community and wish to maintain these ties must normally be considered as belonging to that minority within the meaning of the Covenant. Since Sandra Lovelace is ethnically a Maliseet Indian and has only been absent from her home reserve for a few years during the existence of her marriage, she is, in the opinion of the Committee, entitled to be regarded as »belonging« to this minority.” Having found a violation of Article 27 of the →International Covenant on Civil and Political Rights, the Committee did not consider it necessary to take a position on the issue of discrimination.