Bill C-289 (Historical)
An Act to amend the Indian Act (matrimonial real property and immovables)
This bill was last introduced in the 39th Parliament, 1st Session, which ended in October 2007.
Introduced as a private member’s bill. (These don’t often become law.)
Introduction and First Reading
(This bill did not become law.)
Family Homes on Reserves and Matrimonial Interests or Rights Act
May 14th, 2009 / 3:20 p.m.
Yvon Lévesque Abitibi—Baie-James—Nunavik—Eeyou, QC
Mr. Speaker, on December 13, 2006, Commissioner David Langtry stated, even before Bill C-11 was adopted, that full human rights protection was now being extended to all first nations people and that the commission would act quickly to open discussions with those communities on how best to implement this much-needed change.
To my knowledge, “discussions“ are not “consultations“. The government does not seem to have grasped the intent of this bill. I would like to quote a passage from a report of the Standing Committee on the Status of Women:
The committee heard and acknowledged that “the lack of a legal regime to govern the disposition of matrimonial real property on reserves is… the tip of a much greater iceberg“ and that “the legislative gap in respect of the matrimonial real property rights on reserve lands is exacerbated by chronic housing shortages that exist on most reserves and difficulties in securing financing to purchase or construct alternative housing on reserve…“
Because of this, women will continue to be forced to leave their communities while waiting for an effective solution to the housing shortage and the full implementation of the right to self-determination. The government fails to recognize this and remains apart from other countries by refusing to support the United Nations Declaration on the Rights of Indigenous Peoples. This situation has existed for two decades and has never been corrected.
In June 2005, the Standing Committee on Aboriginal Affairs and Northern Development tabled a report in the House. Its first finding recognized the importance of the matter of matrimonial real property to the residents of reserves, and, specifically, first nations women and children.
The committee recognized the great complexity of the issues. It also realized that, while immediate action was required, it was imperative that all recommendations be consistent with the government’s recognition of the inherent right of self-government by recognizing first nations’ authority over on-reserve matrimonial real property. The committee felt that any action needed to be taken in consultation and collaboration with first nations.
That was in 2005. Today, because the bill was neither developed in consultation with first nations as they wished, nor referred to the committee before second reading, the Assembly of First Nations considers that it has been so botched that it is practically impossible to put it right after this second reading. In addition, the impact studies conducted on the communities affected by BillC-8and the measures they contain to encourage the development of the communities' own laws on matrimonial homes have not been submitted to either the Assembly of First Nations or the Standing Committee on Aboriginal Affairs and Northern Development. The Assembly of First Nations and the Native Women's Association of Canada want the bill to be defeated.
Like the Native Women's Association of Canada and the Assembly of First Nations, the Bloc Québécois agrees with the idea of this bill, but not with its content or the way in which it has been put together. We feel that it is critically important for the communities and, for that reason, it should have been studied.
What difference is there between Bill C-44, which became Bill C-21, and Bill C-289, which is now Bill C-8? For me, there is no difference except that Bills C-44 and C-289 died on the order paper, and in all cases there were no prior consultations. They also have in common the almost unanimous protest against the method in which they were drawn up and the non-aboriginal view of aboriginal real property. I say “almost unanimous“ because the only person not in agreement at the time is now a senator.
This bill, like the ones that went before and the ones that will come after, should have been the result of consultations with first nations, as agreed by the Martin government and the first nations in May 2005. For this bill in particular, the provinces, the territories, the committees of Parliament and the report of Wendy Grant-John, the ministerial representative for matrimonial real property issues on reserve, all should have been consulted.
Unfortunately, this was not the case. The few consultations that were held left participants bitter. They saw them as charades at which they wasted their time. None of their recommendations were accepted, yet the implementation has to be done within their culture and under their administration.
This government should perhaps mention that this bill resulted from discussions with some first nations organizations, the ministerial representative, the provinces and the territories in the summer and fall of 2007. The government should not use the term “consultation“ at all.
Once more, the Native Women's Association of Canada, the Assembly of First Nations and the Assembly of the First Nations of Quebec and Labrador oppose this bill because it is fundamentally flawed and practically impossible to correct after second reading. In June 2006, in its report to the House, the Standing Committee on the Status of Women wished to see concrete progress on the issues relating to matrimonial real property rights of first nations women, issues linked to violence against women. It quoted Beverly Jacobs from the Native Women's Association of Canada:
It's not just in first nations communities. We know it's happening all across the country. It's in Canadian homes where women are being abused. We are taking the brunt of it, and I'm tired of it. As a first nations woman, as a Mohawk woman, I'm tired of hearing this. I feel it's my responsibility to make sure it doesn't occur any more. My daughter is 23, and she also had to live through that. I have grandchildren, and I don't want them to live through it. I don't want them to see violence.
The housing problem is still not solved today. In 2001, the government introduced Bill C-289 despite recommendations to the contrary. Here we are again today with Bill C-8, once more with no consultation or collaboration with aboriginal groups.
Aboriginal peoples, particularly women, would be in favour of this legislation which will put an end to centuries of discrimination and inequities enshrined in the Indian Act and visited upon aboriginal women. They do not want to see these errors corrected by another that would be just as serious, if not more so, than the existing one. This error must be corrected on their terms and in a way that is consistent with their lifestyle and their culture. Above all this legislation must not be the outcome of a unilateral decision by the federal government, which has increasingly demonstrated its ignorance of aboriginal values and of the non-legislative measures inherent in the enforcement of any act or regulation.
There are many irritants. I will mention some of them. First, no non-legislative measure is mentioned. Second, there is a lack of information with regard to the implementation of an action plan. Third, there is also information missing as to resources available to the first nations to develop their laws or the regulations of Bill C-8. Fourth, as mentioned previously, there is a crying need for housing. This situation is in itself sufficient to make this bill's provisions unworkable. Indeed, how, in the case of marital breakdown, can one guarantee decent housing to each of the parties in question? Fifth, this legislation refers to legal proceedings that will lead to trials to clarify the bill's ambiguities. Most of the members of these communities cannot undertake such legal proceedings, because they cannot afford them.
Deputy Grand Chief RoseAnne Archibald, Ontario representative to the Assembly of First Nations Women's Council, stated in June 2006:
We are not convinced that the bill as it stands is going to help First Nations women access justice. Let’s be clear, First Nations women and families have waited too long already for equitable and workable solutions and this bill is at best a half-way measure.
After all the consultations, and presentations and drafting of reports: the government didn’t listen to our women. In fact, I was one of those women they consulted. Yes they asked for our opinion, but the bill does not reflect what we told them. What they’ve drafted is very much a made-in-Ottawa Bill.” .
The Assembly of First Nations Women's Council sees four problems in the bill as it is drafted. It will in the final analysis force first nations women to seek recourse before provincial courts. For many women who live in remote communities, this solution will not be financially viable, among other things because of the time that this would take.
During the consultations, the first nations women asked that matrimonial real property rights be framed from the perspective of their own cultural values and traditions, and not from within the framework of federal or provincial regulations which they did not have a hand in preparing.
Rather than recognizing the authority of first nations, the bill sets out how first nations regulations should be developed, according to a complicated process that makes no provision for supporting first nations participation. In the final analysis, the bill will impose a complex bureaucratic system which will offer no support whatsoever for its implementation.
For matrimonial real property rights to be meaningful, the women told us that the government should see to it that accessible and safe housing be made available.
With regard to the situation in Quebec and Canada, Ms. Wendy Cornet, Special Advisor to the Department of Indian Affairs and Northern Development, stated, when she appeared before the Standing Committee on Aboriginal Affairs and Northern Development on March 24, 2005, that:
The common functions of provincial and territorial matrimonial property law are, firstly, defining what personal and real property of spouses is considered matrimonial property within a given jurisdiction; providing a system of rights and protections in relation to matrimonial property on a mandatory basis to married couples; and thirdly, establishing—as all jurisdictions do—a legal presumption of equal division of matrimonial property on marriage breakdown, regardless of which spouse owns the matrimonial property. This last function usually means that a compensation order can be issued by the court, requiring one spouse to pay the other an amount of money to achieve an equal division of matrimonial property—and the couple's assets and liabilities that constitute matrimonial property are taken into account in determining this.
However, in some important policy areas, provincial and territorial laws vary significantly from one jurisdiction to another, in particular regarding the treatment of the following subjects: common-law relationships; same-sex relationships; matters relating to rights upon death of a spouse; and family violence. Some jurisdictions have passed family violence legislation that provides a package of remedies, including interim orders respecting matrimonial real property. Other jurisdictions do not have specific legislation addressing family violence. And finally, another matter in which you find some variance is the treatment of matters relating to support and the matrimonial home.
The Indian act provides for a land management regime that includes a system for making individual allotments of reserve lands to members of the band for whom the reserve has been set aside. However, the Indian Act is silent on the question of matrimonial property interests during marriage and on marriage breakdown. The Indian Act does not provide for, or recognize, a law-making power on the part of first nations in regard to matrimonial property, real or personal.
There are other issues that must be taken into account on reserves. For instance, many first nations do not use the Indian Act system of individual allotments of reserve lands, for example, by issuing certificates of possession, and instead use systems of custom allotment. An individual's status as an Indian as defined under the Indian Act makes them a band member and can affect property interest in and on reserve lands. For example, individuals who are not band members cannot hold certificates of possession.
It is clearly inconsistent on the part of the Canadian government to go forward with this bill, since it committed itself on May 31, 2005 to strengthening cooperation on policy development between the Assembly of First Nations and the federal government. Here is an excerpt from that agreement:
Whereas the Prime Minister, at the April 19, 2004 Canada - Aboriginal Peoples Roundtable, stated, “It is now time for us to renew and strengthen the covenant between us”, and committed that “No longer will we in Ottawa develop policies first and discuss them with you later. The principle of collaboration will be the cornerstone of our new partnership.”
Clearly the government is not keeping its promise.
It is not rocket science: there must first of all be discussions on the process whereby participation of the Assembly of First Nations in the development of federal policies that have specific repercussions on AFN members can be increased, in particular in the areas of health, skills development, housing, political or economic negotiations and results-based accountability.
Second, they have to address the human and financial resources, as well as the accountability mechanisms needed to encourage the Assembly of First Nations to become more involved in policy making.
That is pretty clear, and I encourage the members to read the remarks I have made in this House since 2006. It should be noted that I have to remind the government of that every time we discuss relations with the first nations. That is not normal.
To conclude, I will give the opinion of the Bloc Québécois, which is sensitive to what is happening in aboriginal communities. The Bloc, like aboriginals, believes that the government should take action. We also take into account the recommendations of the Standing Committee on Aboriginal Affairs and Northern Development.
The Bloc Québécois expects the government to respect the political agreement. It wants to remind the government of its obligation to consult. The Bloc will ensure that implementation of this new bill does not undermine the recognition of the first nations' inherent right to self-government.
The Bloc Québécois is aware that the Native Women's Association of Canada and the Assembly of First Nations have not fully completed their own analysis of the impact of this bill on their communities. The Bloc also knows that the government has apparently not completed a new study.
We will support this bill at second reading for the sole purpose of trying to make the government understand that it has to undertake consultations and fix the bill so that it reflects the vision and culture of the first nations.
Family Homes on Reserves and Matrimonial Interests or Rights Act
May 13th, 2008 / 1:25 p.m.
Tina Keeper Churchill, MB
Mr. Speaker, I am pleased to participate in the second reading debate on Bill C-47, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves. I am especially pleased to contribute to this debate as I am a Cree first nation woman of the Norway House Cree Nation on my paternal side and the Muskrat Dam First Nation in the treaty 9 area on my maternal side.
Matrimonial real property rights are a long-standing issue of great concern. Over 20 years ago the legislative gap was brought to the forefront by the Supreme Court rulings in Derrickson v. Derrickson and Paul v. Paul. The result of these rulings is that provincial and territorial laws relating to the division of matrimonial real property upon marital breakdown do not apply on reserve lands.
In the “Report of the Ministerial Representative: Matrimonial Real Property Issues on Reserves” which was delivered to the Minister of Indian Affairs and Northern Development on March 9, 2007, ministerial representative Wendy Grant-John contextualized the importance of finding solutions to this ongoing issue:
The impacts of the lack of matrimonial real property protections have been greater for First Nation women overall than for First Nation men due to current social roles and ongoing impacts from past discriminatory provisions of the Indian Act that excluded First Nations women from governance and property. The issue of domestic violence is linked to matrimonial real property issues. Protecting the interests of children is a central concern.
This is not the first time I am addressing this matter in the House. My hon. colleagues will recall Bill C-289, the private member's legislation which was introduced in the previous session of this 39th Parliament. While the bill before us today was introduced by the government, I understand that it is similar to Bill C-289, in that on neither was there a sufficient consultative process. The government thereby circumvented its legal duty to consult. The House does not need to take just my word on this. In a media release issued on March 4, 2008, the same day the bill was announced, the Native Women's Association of Canada said of the Conservatives' bill:
The Government of Canada has acted unilaterally in trying to resolve the issue of a lack of matrimonial real property laws that apply on reserve. Despite engaging in a discussion process with relevant National Aboriginal Organizations, the federal government introduced legislation, The Family Homes on Reserve and Matrimonial Interests or Rights Act, that does not have the support of the Native Women's Association of Canada.
In addition, on April 28, 2008 the deputy grand chief, RoseAnne Archibald, of the Women's Council of the Assembly of First Nations stated in a media release:
We are not convinced that the Bill as it stands is going to help First Nations women access justice. Let's be clear, First Nations women and families have waited too long already for equitable and workable solutions and this bill is at best a half-way measure.
First nations people deserve legislation that respects the Crown's legal duty to consult. They deserve legislation to reflect their interests, their customary laws, their traditional ways and their just place in this country.
Indian and Northern Affairs Canada may have initiated a discussion process with the Native Women's Association of Canada and the Assembly of First Nations as neutrally brokered by an appointed ministerial representative, Wendy Grant-John, yet the substance of the proposed legislation clearly indicates that the government in no way listened to the concerns or suggestions voiced by aboriginal women across this country.
As contained in the report by Wendy Grant-John, participants dismissed any legislative solutions that would infringe on aboriginal and treaty rights, or be impractical to implement due to problems of harmonization and conflict of laws, nor did they support a concurrent jurisdictional model. Support was given to potential remedies which were based on first nations practice and legal traditions and first nations views of land and family.
If indeed it is the intent of the government to address critical issues facing first nations women and children, then I find it difficult to understand why it has failed to listen to the voices of aboriginal women who have spoken out on the issue of matrimonial real property.
The lack of consultation by the government is deeply troubling for Native Women's Association of Canada President Beverley Jacobs. As she clearly stated in a news release on March 4:
I promised Aboriginal women who participated in providing solutions to this issue that their voices would be heard. I worked hard to get their messages to government but those messages fell on deaf ears.
In summing up her critique, she added:
In the end, we end up with a more worthless piece of paper.
In light of Ms. Jacobs' assertions surrounding the lack of consultation by the government in the formulation of Bill C-47, it is not surprising that the Native Women's Association of Canada and other organizations representing aboriginal women have expressed significant concerns.
The Native Women's Association of Canada does not support Bill C-47. In its estimation the legislation does not include non-legislative measures to address matrimonial real property, nor does it address the needs of individuals affected by matrimonial real property. Indeed, the Native Women's Association of Canada has outlined a number of issues of concern with the proposed legislation, a few of which I will briefly highlight.
First, it suggests that the proposed legislation lacks concrete information regarding the implementation plans and measures, including timeframes, resources for measures specified in the bill and resources for first nations to implement the legislation.
Second, the association believes there is a lack of information in relation to the provision of resources to first nations to enable them to develop their own laws for matrimonial real property and to develop capacity to implement either the proposed legislation or their own laws related to matrimonial real property.
Third, the proposed bill is also lacking in compassion for newly widowed spouses. According to the Native Women's Association of Canada, Bill C-47 sets out a time limit of 180 days for a widowed spouse to vacate a family home after the death of his or her partner. The Native Women's Association of Canada calls for an extension of this limited time period.
Fourth, Bill C-47 is perceived by NWAC to not be a remedy for the status quo of women and children being forced to leave first nations communities following the breakup of a marriage or common law relationship. The lack of adequate and appropriate housing in many first nations communities, which is not addressed in the proposed legislation, means women will continue to be forced off reserve to seek housing. In so doing, they will lose access to their family, social networks, their culture, language and the services provided to them on reserve.
Finally, NWAC is concerned that the proposed legislation will negatively impact aboriginal women who cannot access the legal system due to multiple factors, including poverty, lack of information and geographic isolation.
NWAC is not alone in its criticism of Bill C-47. The Assembly of First Nations Women's Council also sees significant problems with the bill as it stands. Specifically it outlines four areas of concern.
It asserts that the bill will ultimately force first nations women to seek remedies in provincial courts. This is neither timely nor financially viable for many first nations women in remote communities.
Aboriginal women asked the government to formulate legislation on matrimonial real property rights that reflected their cultural values and traditions. The proposed legislation does not reflect this desire and instead would compel first nations women to be subject to provincial and federal structures and rules that they had no part in crafting.
The AFN Women's Council also calls into question the constraints placed upon first nations in the proposed legislation. More specifically, it draws attention to the reality that the bill would impose a complex bureaucratic system with no support or consideration for implementation on first nations. In so doing, the bill fails to recognize the authority of first nations.
Finally, the AFN Women's Council is adamant that if matrimonial real property rights are to be meaningful for aboriginal women, the government must address the serious lack of adequate safe and accessible housing on reserve.
I believe the concerns of NWAC and the AFN Women's Council clearly demonstrate that the government did not meaningfully engage in a dialogue process with aboriginal women. Any claims to the contrary are clearly a misrepresentation of the facts.
The Minister of Indian Affairs and Northern Development is keenly aware of how disappointed first nations people are with the government's handling of the dialogue process leading to the formulation of Bill C-47.
In a letter addressed to the minister and dated April 8, Grand Chief Phil Fontaine of the Assembly of First Nations wrote:
--the federal government had many, many opportunities to address these matters properly and effectively. Unfortunately, the advice and direction of AFN and First Nations has not been heeded and I must point out that the First Nations assessment of the proposed legislation will likely be that it is unconstitutional in law and of no value to First Nations individuals or governments in practice.
Bill C-47 reflects another missed opportunity by the government to truly engage first nations people in a meaningful process to strengthen their capacity for self-determination. Instead of working collaboratively with first nations people to produce a solution to the legislative gap in connection to matrimonial real property rights, the government has conceived legislation that will impose a system upon first nations.
The most significant opportunity this government missed to promote first nations self-determination was its dismissal of the Kelowna accord. The Kelowna accord was a first step that would have provided over $5 billion to address critical issues affecting first nations women and children, including the day to day urgent needs in housing, safe drinking water, education, health care and developing capacity in the health care field, economic development, and addressing governance structures, which is absolutely essential for aboriginal people to move forward in self-determination.
Another more recent example of the government's unilateral approach to first nations governance in Canada was its decision to vote against the United Nations Declaration on the Rights of Indigenous Peoples. Time and time again, the government is claiming to improve the lives of first nations people in this country, yet it is doing nothing substantial to improve the capacity of first nations people for their own self-determination.
In conclusion, I want to reiterate that Bill C-47 is legislation that was not created through consultation with first nations people. The government has circumvented its legal duty to consult first nations on the issue of matrimonial real property rights and any assertions to the contrary are false.
As Grand Chief Phil Fontaine wrote in a letter to the Minister of Indian Affairs and Northern Development:
Real and lasting solutions must address the real problems...The quick fix approach does not work and, in fact, can harm First Nations collectively and individually.
I hope the minister will see fit to engage in consultations with first nations people in the future.
Private Members' Business
February 13th, 2007 / 6:45 p.m.
Brian Jean Parliamentary Secretary to the Minister of Transport
Mr. Speaker, I appreciate the opportunity to speak to Bill C-289.
I will begin by giving some of my background. For 11 years I litigated in northern Alberta on issues like this, issues dealing with constitutional rights, charter rights and aboriginal rights under the Constitution. I even have family in aboriginal communities spread out across northern Alberta.
I am disturbed about the issue that brings this forward and I have been for some 15 years. I think it is a travesty of justice that there is a gap in the legislation that has not been filled. However, I intend to vote against Bill C-289 for two important reasons.
The first is that it proposes a solution to the issue of on reserve matrimonial real property that is just simply too simplistic.
I have a community in my riding called Janvier. It is an Indian hamlet that is some 30 or 40 kilometres from the Saskatchewan border. On the other side of the border in Saskatchewan, I have a community, which is not in my constituency, called La Loche. Those two communities are connected by culture and by family. However, because there is a border separating the two, they would be under different laws. I do not think that is appropriate in these circumstances.
More important, a collaborative consultation process is currently underway so that the gap in legislation will soon be filled. The government is taking steps to ensure that happens. I believe that will be a superior alternative to this particular motion and, as a result, I must encourage all my colleagues in the House to oppose Bill C-289 for now.
Despite the noble goal at the heart of the proposed legislation, the intention of the legislation is great but the final outcome may not be, and, as a result, I think it is important to consult with the aboriginal communities that it will touch the most.
I respect the mover as well, the member for Portage—Lisgar. He is wise. I have watched him for many years debate in the House. He is very hard-working and I do admire him.
However, as some of my colleagues have explained, on reserve matrimonial real property rights exist in a legal vacuum. This legal loophole in Canada's body of legislation has caused many people to fall victim to abuse, especially, in my opinion, women and children, including homelessness and poverty. I have seen this firsthand, as approximately 20% of my riding is of aboriginal heritage.
The previous debate on the bill made it clear that every member of the House joins me in wishing for an effective and speedy resolution to the issue. Despite this desire, we must not accept this overly simplistic approach that is provided by the bill. We must have a solution that we can all live with, a long term solution, one that solves the problem and reflects the input of those affected, the first nation women and the communities. They must be consulted.
Bill C-289 is not that solution in my opinion. In fact, two aboriginal organizations, the Assembly of First Nations and the Native Women's Association of Canada, have raised concerns with the bill, as many of my colleagues have.
Additionally, when this option was presented to first nations in recent consultations, it was largely rejected as most groups felt that existing provincial laws were inadequate to address their needs, I would suggest in the realm of culture and family connections.
There is no question that the application of provincial law on reserves also requires consultations with the province. I would suggest that needs to be done as well. The provinces, after all, would find themselves responsible for the provision of legal services to residents of first nation communities under provincial law and under programs such as legal aid in Alberta.
The reality is that without the support of key stakeholders, such as aboriginal groups and the provinces, Bill C-289 is not the solution we seek, nor the solution that aboriginal communities and first nation people deserve. With respect, I believe it would simply not work adequately.
Thankfully, the Conservative government has taken action and has nearly completed a consultation process to develop a shared solution to this problem. We want to produce a broad consensus on an effective legislative remedy, not a one-off, but one that works in the long term.
To lead this process, we are fortunate to have a very talented individual, Wendy Grant John, as ministerial representative. Ms. John is a former chief, a successful entrepreneur and a very skilled negotiator. She has agreed to work with all parties to seek a long term consensus on real property. If a consensus cannot be reached, Ms. John will recommend an appropriate course of action.
At the heart of this process has been a series of consultations, which I believe are important and, in most aboriginal negotiations, are mandated by the Supreme Court of Canada. This has been led by aboriginal groups and by Indian and Northern Affairs Canada. While these consultations took several forms, such as in camera sessions, public meetings and written submissions, they have all been guided by the same consultation paper.
The paper was carefully designed to foster focused debate. It outlines three broad legislative options.
Option one would seek the incorporation of provincial and territorial matrimonial real property laws on reserve.
The second option would seek the incorporation of provincial and territorial matrimonial real property laws, combined with a legislative mechanism granting authority to first nations to exercise jurisdiction over matrimonial real property.
The third option would be to involve substantive federal matrimonial real property law combined with the legislative mechanism granting authority to first nations to exercise jurisdiction over matrimonial real property.
All of those options would involve consultation and would involve the consultation process dealing with the culture and values that the aboriginal people have.
This consultation paper also describes the mechanism that a handful of first nations have used to codify on reserve matrimonial property rights. In the 1990s, for example, a group of 14 first nations successfully lobbied the Government of Canada to acquire greater land management powers. Even the election acts of most aboriginals are cultural election acts based on the culture and the practice of the reserve.
The result for this 14 first nations lobbying effort was the First Nations Land Management Act. It was successful. This legislation enables first nations to develop, ratify and enforce land codes, management regimes and regulations governing on reserve and matrimonial real property rights.
Although communities continued to pursue this option, at the present rate it would simply take too long and it would not address this important issue that needs to be dealt with. The time has come to close the legislative gap and, I would suggest, all parties in this House and all members agree with that.
For the benefit of certain first nations' matrimonial rights, it is important to close this gap and to get this solved. To create this type of solution absolutely requires consultation, actively engaging the key stakeholders, the provinces and all aboriginal groups, which is precisely why this government supports this consultative process.
The Assembly of First Nations and the Native Women's Association of Canada have respectively conducted independent regional dialogue sessions and consultations across the country. Officials with Indian and Northern Affairs Canada have held and continue to hold discussions with the provinces and other stakeholders because the best way to get good legislation is by consulting the grassroots. They have also provided funding to other national and regional groups to hold consultations of their own and ensure that all parties are consulted appropriately.
Now that consultations are complete, the final consensus-building phase has begun. The purpose of this phase will be to build consensus on a solution that takes into consideration what Indian and Northern Affairs Canada, the Assembly of First Nations and the Native Women's Association of Canada have heard through their consultations and dialogue sessions.
The task of fashioning a consensus-based solution to on reserve matrimonial property will be both delicate and demanding. The issues will be sensitive and they will demand a profound familiarity, not only with the issues and the culture but also with the viewpoints of all stakeholders.
The legislation before us today calls for unilateral action. It completely ignores many of the concerns already identified by stakeholders.
We must help first nation women and children, and even men, who, without matrimonial property laws, are sometimes left to the whim of chiefs and council members or band members, but we must do it right the first time. We will not have a second chance and this demands our best attention.
Private Members' Business
February 13th, 2007 / 6:35 p.m.
Yvon Lévesque Abitibi—Baie-James—Nunavik—Eeyou, QC
Mr. Speaker, I am pleased to express my opinion on Bill C-289, An Act to amend the Indian Act (matrimonial real property and immovables).
As we debate Bill C-289, we are also debating government bill C-44. The latter proposes to repeal section 67 of the Canadian Human Rights Act. The adoption of these two bills could be prejudicial because they run counter to commitments made by the government in May 2005.
In May 2005, the government promised to renew and strengthen the collaboration of the government and first nations, specifically by consulting the first nations before developing policies that impact them. This principle of collaboration constitutes the cornerstone of the new partnership. The private member's bill of the Conservative member for Portage—Lisgar directly affects this government commitment made to native peoples.
I have the statement made by the Prime Minister on April 19, 2004, and reiterated by the government on May 31, 2005. It states:
It is now time for us to renew and strengthen the covenant between us...No longer will we in Ottawa develop policies first and discuss them with you later. The principle of collaboration will be the cornerstone of our new partnership.
To strengthen policy development, the minister and the Assembly of First Nations commit to undertake discussions: on processes to enhance the involvement of the Assembly of First Nations, mandated by the Chiefs in Assembly, in the development of federal policies which focus on, or have a significant specific impact on the First Nations, particularly policies in the areas of health, lifelong learning, housing, negotiations, economic opportunities, and accountability; and, on the financial and human resources and accountability mechanisms necessary to sustain the proposed enhanced involvement of the Assembly of First Nations in policy development.
The government did not receive the support of the First Nations for the repeal of section 67 of the Canadian Human Rights Act, nor has it received the support of the native women's association for this bill tabled by the member for Portage—Lisgar, as it was introduced without consultation.
Is it unreasonable to believe, in the modern context, that to consult also implies the consideration of at least some recommendations based on cultural values and specific lifestyles?
Subsection 89(1) of the Indian Act exempts personal or real property of a band member located on-reserve from seizure or attachment by a non-Indian or a non-band member.
The provisions of the Indian Act on the rights of surviving spouses to property may be affected by approaches taken to address the issue of on-reserve matrimonial real property, and this would need to be considered.
Is this not good reason to take a closer look at the difficulties encountered in resolving certain situations that may at first appear very straightforward?
It is important to consider the opinions of the people experiencing the problems that need to be resolved or those who are involved in the conflict, in order to examine the necessary corrective action and, as needed, ensure the creation of legislation or regulations.
It seems to me to be a little early—perhaps even much too early—to present such a bill, given that a joint task force was only formed in February 2006 to carefully examine the issue of on-reserve matrimonial property. To pursue this, we would have needed recommendations from both Houses.
The joint task force was set up when the Bloc Québécois demanded that the government consult the Native Women's Association of Canada and the Assembly of First Nations by acting on the following recommendation made by the Senate Committee on Human Rights in its November 2003 report:
—the Committee recommends that appropriate funding be given to national, provincial/territorial and regional Aboriginal women’s associations so that they can undertake thorough consultations with First Nations women on the issue of division of matrimonial property on reserve. These consultations should be the first step in a larger consultation process with First Nations governments and Band councils with a view to finding permanent solutions which would be culturally sensitive—
The joint task force's mandate included drafting joint consultation documents, touring to consult aboriginal communities in Quebec, Canada and the provinces, and reporting aboriginal recommendations with a view to drafting a bill on the division of matrimonial real property and immovables on reserve.
Unless the hon. member for Portage—Lisgar can announce to us that he is withholding privileged information, more complete than that of the native women's association—which says it has not completed its research—we have to consider this bill as an insult to everyone doing research on this file. Accordingly, we have to recommend that this bill be defeated.
We find that through his bill introduced on May 17, 2006, the Conservative member for Portage—Lisgar has demonstrated political opportunism and lack of knowledge of the process already launched by his government. His persistence to achieve this could hinder the democratic process of the joint committee which, for the first time in 30 years, could have or propose a viable solution to an awkward situation for any democratic country. Furthermore, what are people to think when this involves the “very best country in the world”?
This private member's bill is an affront to the Quebec Native Women Inc., which is a major stakeholder in this working group. This ridiculous, thoughtless and disrespectful initiative undermines the credibility of this association's initiative and its chances for success.
This bill prematurely calls on Parliament to take a position at the very moment when the working group recommended by this House has not concluded its research, the results of which are needed in order to improve the living conditions of aboriginals.
The Minister of Indian Affairs and Northern Development Canada has noble intentions: to undertake consultations to find a solution to the issue of matrimonial real property on reserves in order to improve the rights of aboriginal women and provide them with the same legal protection enjoyed by non-aboriginal women with respect to divorce.
It is critical that aboriginal women be consulted with the utmost respect for their culture. To ensure that the consultations are worthwhile, native women's associations in Quebec, Canada and the provinces must be given the funding and the time they need to meet with all of the communities.
Aboriginal women deserve to have all of the information about the subject of the consultations: the Indian Act (matrimonial real property and immovables). It is even more important that the entire aboriginal population be informed of the impact of a law on the division of matrimonial real property on their everyday lives and in the case of separation.
Quebec Native Women Inc. believes that consultations in aboriginal communities require the expertise of family law and legal rights specialists. The officials conducting the consultations must be accompanied by specialists who can answer all of the people's questions.
Governments change with the tide, yet they stay the same. Whether Liberal or Conservative, their vision and their avoidance tactics are similar.
In conclusion, I feel it is premature to debate this bill because of the lack of consultation with the affected population and the lack of essential but currently unavailable information, a lack of information that could cause problems that will be even harder to fix than those these various bills seek to correct.
Private Members' Business
February 13th, 2007 / 6:35 p.m.
Larry Bagnell Yukon, YT
Mr. Speaker, before I start my remarks, let me say I am delighted that the House leader confirmed that the government would be bound by the vote tomorrow.
I would like to thank the member for Portage—Lisgar for bringing forward this private member's bill and also thank him for his hospitality to me when I was at the summer games in Manitoba last year. As he knows, I have a number of aboriginal people in my riding and I always try to support aboriginal people, as I have done several times today.
Of course we know that the Liberal Party has always strongly supported women's rights. Over the last few months, we have been fighting to get back the money for the Status of Women to give them back the ability to advocate for the equality they so rightly deserve and, in my case in particular, for a northern office for the Status of Women.
Bill C-289 is a very important bill for my riding and also for Parliament. I am delighted that the member for Portage—Lisgar has brought this bill forward. Our government was working on this bill in great detail and very intensely. I believe this should be dealt with. I congratulate the member.
The problem is that it is a very complex issue. In fairness, I do not think this can be accomplished by a one page bill. That cannot cover all the ramifications. For instance, the bill does cover on reserve, but in virtually my whole constituency there are vast areas without reserves and there is a whole different legal framework related to the land claims and the self-government agreement that we have signed.
A bill of this nature has to cover all aboriginal people, the Métis, the Inuit and the first nations people, and how their aboriginal rights would stand in respect of such a bill. There are various treaties, different land claim agreements, and self-government agreements that are quite different across the country. That results in a very complex task. It should be dealt with comprehensively in a bill in which everyone is treated fairly.
Another example of the complexity is that this issue has already twice been ruled unconstitutional by the Supreme Court, because aboriginal rights cannot be overruled in regard to dealing with family law on reserve, as outlined by the Indian Act.
When we do get a very comprehensive government bill dealing with matrimonial real property and immovables, we realize it is important. We would like to deal with it as quickly as possible. I hope the government proceeds as quickly as possible with the bill.
The decision will be very interesting. It will be a debate between the aboriginal rights in section 35 of the Constitution, which talks about the collective rights of aboriginal people, a whole different society that has lasted for thousands of years and, in some respects, with a life view that is different from ours.
That is then balanced, as the Constitution and the Charter of Rights and Freedoms often do, in regard to different rights, somewhat conflicting rights, and we also have to balance the individual rights under section 15 of the charter. This is a very important debate that we are also going to be debating shortly in another bill related to human rights. People should take the bill seriously and give it a lot of thought.
I congratulate the member for bringing the bill forward, but for the reasons I have given, I do not think it could possibly be supported. I liked what the parliamentary secretary said earlier in this debate when he said that the government had enthusiasm for moving forward. I hope that also includes moving forward far more quickly on land claims and outstanding self-government agreements across the country.
The House resumed from November 22, 2006, consideration of the motion that Bill C-289, An Act to amend the Indian Act (matrimonial real property and immovables), be read the second time and referred to a committee.
Private Members' Business
November 22nd, 2006 / 7:40 p.m.
Rod Bruinooge Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians
Mr. Speaker, I would like to acknowledge my colleague, the member for Portage—Lisgar, for all the efforts he has taken on this issue and continues to take on the important work for aboriginal families throughout Canada.
I rise today to discuss the bill before the House, Bill C-289, a proposal to address the issue of on reserve matrimonial real property through amendments to the Indian Act. Although I fully support the goals of Bill C-289, I cannot support the bill in its present form.
The issue of on reserve matrimonial real property, frequently referred to by its acronym MRP, is a fundamental injustice that tarnishes Canada's democracy and creates suffering for a number of first nations women, children and families. The government recognizes the pain resulting from this issue and it is determined to resolve it.
To enact Bill C-289, however, would be a mistake. The bill is not the product of a broad collaborative effort required to implement an effective, lasting solution. To develop an effective solution, we must understand and appreciate the complexities of this very serious issue. We must also ensure that we have a solution that reflects the concerns and input of all those who will be affected, in other words, first nations communities across the country.
Matrimonial real property is a legal term for a relatively simple concept. It refers to the fixed assets used for family purposes that are owned by one or both spouses. For most Canadians, matrimonial real property includes a house and the land on which it sits. In the event of divorce, the division of MRP is often contentious but legally straightforward. Provincial and territorial laws are in place to protect the MRP interests of both spouses, as per their jurisdiction under our Constitution. In the event of divorce, for example, one spouse cannot sell the family home without the consent of the other.
Aboriginal people living on reserves, however, face an entirely different legal reality. Federal legislation, the Indian Act, defines the status of reserve lands, and the Indian Act is silent on the issue of matrimonial real property on reserve.
This is not just a bureaucratic interpretation. The Supreme Court of Canada has twice ruled that provincial family law cannot alter any interest in MRP located on reserve lands. These rulings have determined that since reserve lands fall under federal authority, only federal law can enable transfers of on reserve matrimonial real property. Unfortunately, no federal law addresses MRP. This leaves a large loophole in Canada's body of legislation.
The loophole has a direct affect on aboriginal women and children seeking to escape failed marriages and few of them are even aware of the problem until it is too late. In all too many cases, an aboriginal woman has little choice but to leave the family home and ultimately her community.
Judges are usually powerless to intervene because they lack the legal authority to protect or transfer the MRP interests of spouses on reserves. Even in the most extreme cases, such as those involving spousal abuse, physical violence or custody disputes, no court can order a change in possession of an on reserve family home. The courts cannot order the sale of the family home, for instance, or prevent a spouse from selling or mortgaging the family home without the consent of the other spouse, regardless of the severe repercussions these actions might have.
This legal loophole often has devastating consequences such as homelessness, poverty and despair. The effects are serious, with a steadily growing number of aboriginal people marginalized from mainstream society, denied access to the opportunities the rest of us take for granted.
I believe all members appreciate that the current situation is intolerable. I hope they will join me in commending the good intentions behind Bill C-289. I also hope they come to recognize the value of the solution contained in the bill disappears quickly without the necessary consultation and input required for an effective and lasting solution.
Bill C-289 proposes to amend the Indian Act so provincial law applies to MRP cases, although appealing such an amendment would effectively transfer a significant burden upon the provinces. Have the provinces indicated a willingness to accept this burden? Can we expect the provinces to assume the additional legal aid and enforcement costs associated with MRP? Unfortunately, we do not know the answers to these questions because the provinces have failed to be consulted about Bill C-289. This lack of consultation is the substantive flaw in the bill before the House today.
The government is committed to finding a solution to MRP that works for everyone, for provinces and territories, for first nations communities, for aboriginal women and children and for all Canadians. To design and implement an effective solution will necessarily require the input of all parties. I am pleased to report that a collaborative process was introduced by the minister earlier this year.
As we are speaking, these consultations with all stakeholders are taking place across the country. These sessions examine and analyze potential legislative solutions to MRP. The sessions were designed and are led by officials from Indian and Northern Affairs Canada, side by side with representatives of the Assembly of First Nations and the Native Women's Association of Canada. I have every confidence that this cooperative approach will lead to a lasting solution, a solution to a problem that we can all agree has remained unresolved for far too long.
Earlier this year, we were fortunate enough to retain a talented individual, Wendy Grant John, as ministerial representative on these consultations. Ms. Grant John is a former chief, a successful entrepreneur and a skilled negotiator. She has agreed to work with all parties to seek consensus on a solution to the issue of MRP. Should such a consensus not emerge, Ms. Grant John will recommend an appropriate course of action.
This government's actions on MRP are consistent with the strategy it has devised to address the full range of problems that face aboriginal people in our country. The strategy is based on taking immediate action on quality of life issues such as drinking water, supporting women, children and families in education, promoting economic development, job training, skills and entrepreneurship and revamping the legislative framework to address the archaic and tangled legislation and funding agreements that define the vast majority of relations between government and first nations, which clearly are not working. We are also speeding up the process for conducting treaty land entitlements, additions to reserves, comprehensive and specific claims.
The government will work collaboratively with aboriginal groups and the provinces and territories to design and implement better legislative frameworks and to accelerate negotiations and achieve fair settlements. Our commitment is evident in a number of areas where action is already under way, such as MRP and our plan on first nations water. In addition, in our first budget we invested more than $3.7 billion over two years in support of aboriginal peoples and northerners, more than any previous budget.
I am convinced that we are ushering in a new era of prosperity and social justice for aboriginal peoples. We are committed to working closely with aboriginal groups to design and implement appropriate solutions. To succeed we will consult and collaborate and not take unilateral action.
Bill C-289 calls for the government to act on its own without the consent of these stakeholders. I encourage my colleagues to support the government's collaborative approach to MRP and join with me in voting against this bill.
Private Members' Business
November 22nd, 2006 / 7:15 p.m.
Tina Keeper Churchill, MB
Mr. Speaker, as a Cree first nation woman from the Norway House Cree Nation and on my maternal side I am from the Muskrat Dam First Nation, I feel especially privileged to participate in the second reading debate of Bill C-289 sponsored by the member for Portage—Lisgar.
The objective of this bill is to amend section 90 of the Indian Act which focuses on matrimonial real property and immovables, insofar that it would extend the application of provincial matrimonial property law to include reserve lands.
Matrimonial real property describes the family home and the land upon which it is situated, and provincial laws determine how to divide the property in the event of a marital breakup or divorce.
At face value it sets out to carefully address a delicate matter. Instances involving conflicts in regard to matrimonial real property do, without question, affect all Canadians and, of course, first nations citizens as well.
This bill however seeks to amend a portion of the Indian Act and, therefore, I trust that my parliamentary colleagues will lend their attention to the complexities that surround Bill C-289.
The urgency to address matrimonial real property on first nations is by no means a recent issue. Over 20 years ago the legislative gap was brought to the fore by the Supreme Court rulings of Derrickson v. Derrickson and Paul v. Paul. The result of these rulings was that provincial and territorial laws relating to the division of matrimonial real property, upon marital breakdown, do not apply on reserve lands.
This is an issue that has been explored, as my colleague mentioned, in many reports and in the Standing Committee on Aboriginal Affairs and Northern Development. In June 2005 the committee released a final report entitled “Walking Arm-In-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property”.
Since the report was finalized, the Native Women's Association of Canada, Indian and Northern Affairs Canada and the Assembly of First Nations have sought to seek a resolution on matrimonial real property.
I wish to remind the member for Portage—Lisgar that there are key considerations. First, there are aboriginal and treaty rights. The courts have affirmed aboriginal and treaty rights over reserve lands and, accordingly, they are protected by subsection 35.(1) of the Constitution Act. This is the fundamental starting point for discussions to address the legislative gap.
Recent court cases have confirmed that the federal government cannot unilaterally proceed with enacting legislation that has the potential to infringe on aboriginal and treaty rights or affect aboriginal interests without first consulting first nations.
There has been judicial recognition of first nations jurisdiction over land use on reserve lands. Additionally, in respect of the inherent right to self-government, there must be recognition of first nations jurisdiction over family law matters. To do otherwise infringes on the rights of first nations to be self-governing, as recognized by the Constitution of Canada.
Additionally, in May 2005 an agreement was signed by the Assembly of First Nations and the previous Liberal government of Canada. This agreement is known as the “First Nations-Federal Crown Political Accord on the Recognition and Implementation of First Nations Governments”. It laid a fresh framework for a collaborative federal policy development process that would guarantee first nation participation.
Bill C-289 makes absolutely no mention of these essential conciliatory processes and legal mechanisms.
Given the past and present hardships experienced by Canada's first nations, I think it would be considerably counterproductive to proceed any further on a bill that was not the outcome of a successful, cooperative and collaborative effort.
If indeed it is the intent of the member to address critical issues facing first nations women and children, then I find it difficult to understand why the member would not have supported the motion in this House put forward by the member who represents the Desnethé—Missinippi—Churchill River riding to honour the implementation of the Kelowna agreement, entitled “First Ministers and National Aboriginal Leaders Strengthening Relationships and Closing the Gap”. It was reached between the first ministers of this country and national aboriginal leaders, including the Native Women's Association of Canada, the Assembly of First Nations, the Inuit Tapiriit Kanatami and the Métis National Council.
The Kelowna accord was a first step which would have provided over $5 billion to address critical issues affecting first nations women and children, including the day to day urgent needs in: housing, safe drinking water, education, health care and developing capacity in the health care field, economic development, and addressing governance structures which is absolutely essential for aboriginal people to move forward in self-determination. That, I might add, is a key health determinant.
The answers must come from the people themselves and earlier this year, on June 21, the Minister of Indian Affairs and Northern Development announced a nationwide consultation process on matrimonial real property. These regional dialogue sessions are necessary and they are a means toward achieving a meaningful and lasting solution.
I encourage the member to consider the impacts of attempting to supercede a process that is currently underway. In fact, I encourage all members of the House to consider how momentous this process is to involve first nations and aboriginal women in a cooperative and collaborative process with the federal government. In order to best reinforce the integrity and focus on the genuine intention of the regional dialogue sessions, and the good faith of the consultations, it is not judicious to pursue this bill any further.
Although I support the issue being resolved, I can assure the House that Bill C-289 is undermining the legal process that is currently being pursued. To reiterate and conclude my position, out of respect for the ongoing process that is currently underway between Indian and Northern Affairs Canada, the Native Women's Association of Canada and the Assembly of First Nations, I cannot find any constructive purpose in supporting this bill.
Private Members' Business
November 22nd, 2006 / 7:10 p.m.
Marc Lemay Abitibi—Témiscamingue, QC
Mr. Speaker, I listened closely to my hon. colleague, and I would like to point out a problem and ask his opinion. I will get back to this in a moment when I address the House about the bill.
The Quebec Native Women's Association and the Assembly of First Nations of Quebec and Labrador would have preferred that there were no debate concerning Bill C-289. They say that it consists of only a temporary program, a band-aid solution to a problem that could delay, once again, what the government is trying to do.
Does the bill proposed by my colleague not undermine the study that the government currently has in progress, the one being conducted by the minister and on which Ms.Grant-John is working so hard?
Passing this bill and taking the necessary time to enact it could delay the conclusions that should give rise to legislative action and an amendment to the Indian Act. I wonder about that, and I would like to ask the following question. Is he not undermining his own government, which means to move much further ahead than this bill appears to go?
Private Members' Business
November 22nd, 2006 / 6:55 p.m.
Brian Pallister Portage—Lisgar, MB
moved that Bill C-289, An Act to amend the Indian Act (matrimonial real property and immovables), be read the second time and referred to a committee.
Mr. Speaker, I appreciate the opportunity to discuss the bill in the House today.
Leona Freed is a friend of mine whose ex-husband physically abused her. However, she had three children so she stayed with him for five years before she finally walked out. For many women, finally leaving the abuse they endured marks a new beginning for them. Assets in family law court are divided equally and a judge makes the call on support issues.
However, that was not the case for Leona. Leaving her ex only sparked bigger problems. Family law did not apply in Leona's case and it still does not for many other women like her because of where the abuse took place, which was on a native reserve called Hollow Water, a couple of hours north of Winnipeg.
No one was there to protect Leona, not even the law. Only a handful of Canada's 600-plus reserves have established matrimonial property laws. On our largely patrimonial Indian reserves, that literally means every man for himself.
When a marriage dissolves, there are no rules to provide fairness or protection to the vulnerable, most often the female partner. Provincial codes apply only off reserve. Rules differ somewhat by province but at least there are rules in place, rules that guarantee rights are protected.
The federal government has jurisdiction on Canada's reserves but the Indian Act is silent on this issue and so we have a problem, or at least aboriginal women have a problem and therefore we in this place should concern ourselves with that problem.
When their relationships break down, they are caught in a legal no man's land where no woman should ever have to tread.
Is this a new problem? No, it is not. Manitoba's aboriginal justice inquiry recommended action on this issue back in 1988, as did numerous other studies, including but not limited to: the monumental Royal Commission on Aboriginal Peoples in 1997; the 1998 United Nations Committee on Economic, Social and Cultural Rights identified the lack of matrimonial property rights for aboriginals and beseeched us to act here; the interim report of the Senate Standing Committee on Human Rights in 2003, “A Hard Bed to Lie In: Matrimonial Real Property on Reserve”, called for immediate action; and, in 2005 the House of Commons Standing Committee on Aboriginal Affairs and Northern Development recommended that action take place as well.
The Indian affairs minister and the government has commenced a consultative process with the cooperation of the Assembly of First Nations and the Native Women's Association of Canada. This is admirable, as have been all previous reports, studies, hearings, commissions, consultations, panels and committees. Unfortunately, none have resulted in any action and the injustices faced by Canadian aboriginal women endure. As well, despite the minister's good intentions, it is quite possible that other factors, such as another federal election, will result in further delays.
This is an issue of interest to columnists. Just this week there was a column in the Globe and Mail. In reference to the consultations, John Ibbitson said:
The most we can reasonably hope for is some incremental progress that the next government will pursue, leading to real reform some time down the road. What experience suggests is that failure will follow failure in unbroken succession.
There is justifiably some doubt as to whether action will actually occur as a result of the consultations. Bill C-289 is an attempt to change that inaction into action. The bill would extend provincial matrimonial property codes to reserves and provide interim rules until the federal government acts or until first nations develop their own charter-compliant codes. In other words, the bill would l put the rule of law into place where it does not currently exist.
This is exactly the measure unanimously recommended by both the Senate and House committees and yet some will argue for further delays. Detractors of the bill will argue that the issue is complicated. They are quite correct. The complexity argument has long been used to undermine aboriginal equality and human rights. Surely, putting an end to the personal suffering experienced by aboriginal Canadians should be sufficient motivation to act.
Certainly the Winnipeg Free Press thinks so. An editorial on October 16 stated:
The practicalities of imposing the law are complex -- many reserve residents live below the poverty line and do not have access to courts or lawyers. But it is high time First Nations men and women had the same basic claim through law granted other Canadians when marriages fail. It may be that decades of legal disputes and years of study are not enough for [the member for Winnipeg South Centre]. Native people have been waiting for such a law for too long.
That is its view and it is mine.
Certainly some first nations chiefs covet the control that now rests with them in the absence of matrimonial property laws. They argue that they are best positioned to make asset allocation decisions in the collective best interests of band members. But many other leaders know that formalizing and depoliticizing these decisions is in the best interests of individuals and of chiefs and councils. In spite of this, some want to play jurisdictional ping-pong with this issue. They would argue that the community should establish its own codes. I would say this in response.
First, this bill respects first nations' governance aspirations. It provides interim protections until communities can do just that, until communities can decide how they wish to proceed.
Second, this is not a new issue. This issue has been around the reserve for years and yet, very few have developed matrimonial property rules. Without action, aboriginal people, in particular aboriginal women, may wait many more years for justice.
Third, why reinvent the wheel? A number of first nations leaders I have spoken to recognize and have said they have many other priorities they have to deal with: water quality, economic development, social problems. They have limited resources. Using and enforcing provincial codes on an interim basis, or even perhaps permanently as some bands have said they would like to do is both cost effective and the right thing to do.
Some chiefs and councils are currently pushing for exemptions to provincial smoking bans. Certainly we know of cases in Manitoba and Saskatchewan and there are others I am told. In particular, this is relevant to gambling ventures that some of the bands have under way. These bands will naturally be concerned about the jurisdictional optics of accepting provincial codes in one category while opposing them in another. I would urge these leaders to consider the optics of prioritizing the equal rights of their band members beneath gambling profits. That is not a pretty optic.
This week's The Hill Times contains an article by Grand Chief Phil Fontaine in which he said:
--after a decade of research, Harvard University found that it could not point to one example of sustained development that, “did not involve the recognition and effective exercise of tribal sovereignty: the practical assertion by tribes of their right and capacity to govern themselves.
That is something many of us here support. But progress towards aboriginal self-government has been hindered by widespread concerns about accountability. These concerns are fuelled by stories of misspending, abuse of power and the often repeated examples of social malaise on reserves. These concerns exist both on and off reserves and these concerns are shared by both aboriginal and non-aboriginal people. The question is how to address these dysfunctional governance problems.
Mr. Fontaine went on to say, “Ultimately, authority spreads from the people”. But does it, can it, when people are afraid to speak up? The absence of property rights among aboriginal people hinders their willingness and ability to speak up when they see wrong being done, or when they experience it firsthand.
And rightfully, many aboriginal women will stand in the way of self-government unless and until their rights are protected. They and all Canadians need to feel confident that there are checks and balances in place to offset any potential abuses of power by community leaders. Establishing matrimonial property rules on reserve is in the best interests of accountability because it replaces a decision making process which can be discretionary and arbitrary with one that is clear and is non-political.
Sovereign nations cannot exist without sovereign individuals. Five hundred thousand aboriginal women confident of their rights may be able to achieve what 5,000 federal bureaucrats will never achieve: better governance on the reserves of this country; more accountable governance on the reserves of this country.
I would ask members of Parliament, on behalf of the Canadians they represent, to support this bill when it comes before the House early in the new year.
When she was fighting for her children and her property, Leona Freed was standing alone. She was standing unprotected. This is our opportunity to stand with Leona and thousands of aboriginal women like her and acknowledge the matrimonial property rights of aboriginal people. With the passage of this bill, we would be standing together to protect and defend Canada's aboriginal women.
Hon. members may ask why I bring this forward when the government has already initiated a consultation process. I have been fighting this issue for a long time. I have travelled to over 100 first nations communities in my capacity as the critic when in opposition. I have heard firsthand the tragic stories, as I know other members of the House have as well, of hardship and of heartbreak directly from the people who have experienced those hardships, from the women affected, women who have been abused, women who have been thrown out of their homes, women who have been forced off of their reserves. As we debate this bill, these problems do not stop; they continue.
In a society where too many people claim unjustified victimhood, aboriginal women are real victims, victims of an intolerable inequity, a contravention of the equality rights in our charter, a contravention of section 35 of the Constitution Act.
I submit to my colleagues in the House that the choice for us here is clear: either we perpetuate the inequality or we end it by making this bill a reality.