Bill S-2 (Historical)

Family Homes on Reserves and Matrimonial Interests or Rights Act

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

This enactment provides for the adoption of First Nation laws and the establishment of provisional rules and procedures that apply during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on First Nation reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on those reserves.

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, the member for Winnipeg North is absolutely correct. Indeed, when we talk about non-legislative remedies, one aspect that we need to look at is what happens in a community where there is a marital breakdown and one person ends up with housing and another actually has to leave the community because there is no other housing. There are significant waiting lists in most communities. There is the problem of not having available non-legislative remedies for housing, dispute resolutions, and safe houses.

The other issue is that this is being portrayed simply as an issue of discrimination against women. There are absolutely serious problems with discrimination against women in the way that property is divided in a marital breakdown. However, there is a larger context to this.

Part of what the Liberal member asked was why this was not being referred to the aboriginal affairs committee. Here I would say that the larger context of this is around land regimes on reserves. They are not private property. There are issues of certificates of possession and inherent treaty rights, and all kinds of other complicating factors that it would seem the aboriginal affairs committee would be seized of.

Therefore, to respond to the member, I agree that it is very important that the committee goes out to communities and looks at the reality of what happens when there is a marital breakdown there, but second, it should also look at the larger context around aboriginal rights and title.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, I appreciate the speech by the member for Nanaimo—Cowichan, as I know that she is well versed on first nations issues.

I want to bring to light the view of one of my chiefs. He talks about the fact that first nations' inherent right to self-government needs to be recognized, just as it is by section 35 of the Canadian Constitution Act 1982, which includes independent jurisdiction with regard to family law and real property on and off reserve. He goes on to talk about the fact that his community has actually adopted a matrimonial real properties act, which is working very well. The issue is not that first nations cannot do this.

He and his community continue to maintain that the proposed MRP package interferes with fundamental property and other rights, and that the federal government cannot therefore proceed without seeking the prior, full and informed consent of individual first nations, who are the actual rights holders.

Again, I want to raise the issue that there are opportunities for first nations to put these matrimonial property acts in place, and that these do actually work. I am wondering if the member can elaborate on the fact that those tools are currently there for first nations.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I want to thank the hon. member for Algoma—Manitoulin—Kapuskasing for that very good question, because she is absolutely right. Many first nations have developed codes. They are in place and functioning effectively.

Part of the challenge before the House actually concerns the heart of the relationship between the federal government and first nations. If one's starting premise is that there is a nation-to-nation relationship, then there are different approaches that derive from that relationship.

The minister admitted that the government has known for years that these discriminatory practices are happening. One thing that could have happened over these last many years is that resources could have been put into working with the first nations communities who were interested in developing their own codes. There could have been a tool kit put together around best practices and then some resources for the community to help develop their own code that would reflect their own practices, customs, traditions, cultural values and language.

We did not see that happen, so now we have a piece of legislation being imposed on nations that did not have the resources to develop those codes and practices. The hon. member is absolutely correct: there are some very good codes already in place.

[Michelle Rempel, Conservative, Parliamentary Secretary to the Minister of the Environment]

Mr. Speaker, I think that anyone watching at home today would appreciate that we are having a debate about women's equality rights taking place primarily among female parliamentarians. I think that is something to be celebrated.

The reason we are able to do this is that a legislative change was put in place that allowed us to stand in this place and have these types of debates, given our gender as women. Sometimes we need to have legislative change in order to effect real change.

Kofi Annan once said:

Gender equality is more than a goal in itself. It is a precondition for meeting the challenge of reducing poverty, promoting sustainable development and building good governance.

Sometimes we need legislation to do that.

After all the consultations that have taken place, the millions of dollars that have gone into the consultation process, with over 103 sessions in 76 sites, I would simply ask my colleague this: why will she not support common sense legislation that stands up for the rights of aboriginal women and their property rights?

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, the hon. member talks about consultation. Yet the culmination of that consultation was a 2006 report entitled, “The Report of the Ministerial Representative: Matrimonial Real Property Issues on Reserves”, a significant number of whose recommendations have been disregarded by the government.

The question then becomes this. The government carried out what it calls a consultation process, got a report, and then ignored it. Then the government went back and said that it had consulted, but did not say it would actually take the consultation to heart and develop legislation based on that legislation. One cannot call something consultation and then not do something about it.

If the government were serious about consultation, it would go back to this report and rewrite the legislation.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, I want to follow up on my question to the minister and again insist that the bill needs to go to the aboriginal affairs committee, not to the status of women committee.

Regarding the record of the status of women committee, including its recent study, “Improving Economic Prospects of Canadian Girls”, I would refer the members to the dissenting report of the Liberal Party, including the hon. member for York West. We were appalled that despite all of the evidence gathered from people such as Vivian O'Donnell and Susan Wallace, the committee refused to include any recommendations in the report, stating that it would exceed the mandate of the Minister for Status of Women. It thinks its mandate is the 40-year old written mandate for status of women committee, as though it were the responsibility of the current Minister for Status of Women.

It is clearly an issue, as my colleague from the NDP has said, for the Minister of Aboriginal Affairs and Northern Development. Given the complexity of dealing with property and aboriginal rights, those can only be properly studied at the aboriginal affairs committee. I cannot repeat that strongly enough. It is totally inappropriate that this go to a committee not used to studying legislation, and which has, in its very last study, refused to deal with the issue of aboriginal girls and young women, stating that it is not the specific responsibility of that minister or her department.

The Liberal Party does not question the need for legislation to address the legal gaps and other problems surrounding family breakdown for first nations living on reserve.

Many national and international reports have called on Canada to address the legislative gap with regard to matrimonial real property on reserves, and a number of parliamentary committees have examined this issue.

However, the bill would not effectively deal with the problems associated with the division of matrimonial property on reserve and would fail to provide first nations with the tools to implement appropriate measures for families to resolve disputes safely and in a culturally appropriate way.

Bill S-2 would not improve gender equality for aboriginal women, as claimed by the Conservative government. Instead, it would create the potential for new open-ended interests for non-first nations individuals on reserve and would fail to address the root causes of family breakdown and domestic violence, namely the lack of housing, inadequate funding for child welfare and inadequate access to legal aid for aboriginal women.

The Liberal Party of Canada believes that all legislation, or policies concerning aboriginal peoples, requires the government to work with, nor for, aboriginal peoples, as we promised to do in the original treaty relationship and as expressed by the UN Declaration on the Rights of Indigenous People. It commits Canada to uphold indigenous rights and ensure first nations enjoy the same quality of services and care as other Canadians. It explicitly says that there must be free, prior and informed consent on any issues dealing directly with first nations in Canada.

We also must recognize and affirm aboriginal or treaty rights as laid out in section 35 of the Constitution Act, 1982 and Canadian courts. As well, it is imperative that we provide sufficient resources so as to guarantee that aboriginal communities have the capacity to implement the legislation and our policies on which we have worked collaboratively. Unfortunately, yet again, the government has failed to meet any of these criteria in the approach to matrimonial real property on reserve. It is raining down legislation in “thou shalt” kinds of ways without the resources and the support to actually achieve the objectives of the legislation.

Yet again, consultation has been inadequate. Consultation requires both a substantive dialogue and the government to listen and, when appropriate, incorporate what it hears into its approach. Although consultations were done on MRP in general in 2006-07, consultations were not done specifically on Bill S-2, in particular prior to the introduction of the bill.

The Native Women's Association of Canada is not confident that the legislation will solve the problems associated with matrimonial real property on reserve and has been clear that the current bill fails to address many of the recommendations repeatedly raised each time the legislation has been brought forward. NWAC held meetings with first nations women from its provincial and territorial member associations and produced several reports that included their views to address MRP. Bill S-2 still neglects most of those recommendations.

The Conservative government failed in its constitutional duty to consult the first nations when drafting this bill and did not take into consideration the serious problems identified by stakeholders when the Senate examined Bill S-4, the previous version of this bill, in the last Parliament.

The non-derogation clause in Bill S-2 does not sufficiently affirm constitutional rights to self-government, that is nothing in the act shall be construed “so as to abrogate or derogate from...aboriginal or treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982”. This is not acceptable.

As my colleague from the New Democratic Party has said, the resources are inadequate to achieve the objectives of the bill. As I said In the letter I sent to the Minister of Aboriginal Affairs a year ago August, it is completely unfair to legislate when the resources are not there to implement the objectives of any legislation.

This afternoon we will see the same thing on the water act, that “thou shalt have clean drinking water” and there are no resources to make sure it happens. This is exactly the same thing. In the objective of the bill on matrimonial real property, there are just not the resources to actually give women real choices with their families for them to remain safe in situations of violence.

Any proposed measure must be based on a holistic approach designed to address family breakdowns and domestic violence in aboriginal communities and tackle the problems of poverty, the housing shortage and the tragic legacy of the residential school survivors and their families.

In 2006, then INAC minister, Jim Prentice, announced that the nation-wide consultation on MRP reserves would take place, and appointed Wendy Grant John as the ministerial representative.

The report of the ministerial representative proposed establishing new stand-alone federal legislation that would be based on recognition of first nations jurisdiction and respect for aboriginal and treaty rights, while establishing interim federal rules that would apply until the first nation had exercised its jurisdiction and enacted its own laws on MRP.

The report of the ministerial representative also noted:

The viability and effectiveness of any legislative framework will also depend on necessary financial resources being made available for implementation of non-legislative measures...Without these kinds of supports from the federal government, matrimonial real property protections will simply not be accessible to the vast majority of First Nation people.

At the time that report was tabled, the time we were able to see it, everybody who we spoke to said it was imperative that the government of the day not be allowed to cherry-pick this report. Yet cherry-pick the report is exactly what the government has done.

The government has not provided any additional resources to help first nation governments build the capacity needed to address the underlying issues, meet their new obligations under the bill, or allow their citizens to have access to the legal system or develop new community-specific laws regarding matrimonial real property.

The provisional federal MRP rules are based on a provincial court system and require first nations and their citizens to take on additional costs to access the court system.

In many rural and remote communities, the cost of legal access, including transportation, can be prohibitive. Yet there is also no commitment to provide funding for alternatives to the court system, like community-based dispute resolution, which would be more cost effective and culturally appropriate.

Further, Bill S-2 was tabled without a plan and without resourcing to address the myriad issues that contributed to family breakdown on reserve and the disproportionately high levels of domestic violence against women.

Witnesses who appeared before the Senate committee mentioned the chronic shortage of housing on reserve, the underfunding of child welfare and the lack of shelters and temporary housing. These are substantive issues that must be addressed as part of the federal government's MRP approach.

The government has made no commitment to provide resources to help first nations move past the provisional federal rules and develop their own MRP code, other than to promise to create a centre of excellence, subject to further future Treasury Board approval.

The government's approach to developing the bill has been misguided and the resulting legislation is totally inadequate.

[Susan Truppe, Conservative, Parliamentary Secretary for Status of Women]

Mr. Speaker, the bill clearly states that it does not affect the title to reserve lands or change the collective status of reserve lands and it does not allow non-members to make claims of ownership to reserve lands. The provisional federal rules will not lead to non-Indians or non-members acquiring permanent interest in reserve land because exclusive occupation orders and emergency protection orders are temporary.

Input obtained during the national consultation process indicated that an appropriate balance was needed between the individual rights of on reserve residents and the collective interests of first nations in their reserve lands. The legislation achieves the objective of filling the legislative gap on reserves for first nation members and non-members, while respecting the principle and non-alienation of reserve lands.

The provisional federal rules also include provisions to ensure that first nation councils can make representations to the courts, for instance, to highlight the collective nature of the land. This does not apply, however, in the case of emergency protection and confidentiality orders.

I find it insulting that the Liberal member, who voted against establishing the Canada Human Rights Act on reserves, refuses to give women on reserves the same rights she has.

Why will she not help aboriginal women?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, I will leave that alone. It is totally insulting and inappropriate in the House. Those of us fighting for the rights of aboriginals everyday are on this side of the House and the aboriginal people in Canada know that.

It is totally ridiculous for that member to stand and read something that was hopefully prepared by someone who does not even understand that the aboriginal affairs committee right now will receive the part of the bill on fee simple that would put in question everything that member just read. She clearly does not understand.

It is really important that the bill come to the aboriginal affairs committee where somebody, like the Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development, who at least understands the issues around real property on reserve, can speak to it. That member and her committee can just leave the bill alone.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, I thank my colleague for her very clear defence of the rights of aboriginal women. I am particularly interested in her concern regarding the bill going to the Standing Committee on the Status of Women. As a five-year member of that committee and a former chair, I too have some very real concerns.

When I was a member of the committee in 2010-11, we embarked on a study of violence against aboriginal women. We went from community to community and we heard from aboriginal women. At first, they were reticent because they did not trust us, but as time went on they came to believe we would truly help. They believed the women of Parliament would truly help.

Unfortunately, the report that eventually came out of the Conservative-dominated committee was a travesty. It was an absolute aberration in terms of its glossing over the evidence we had heard and coming up with a report that had absolutely no real remedy.

Very clearly I share my colleague's concern. Why on earth we would ever trust anyone in the Conservative government?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, I thank the member and a veteran of the status of women committee who has witnessed the really disappointing reports coming out of that committee, that softly recommend or suggest instead of taking hard lines that would actually defend the status of women in Canada.

It is because of the complexity of this issue and the failure of that committee to deal seriously with any legislation, other than a couple of clauses in estimates occasionally, that it becomes even more inappropriate that the status of women committee would study a bill of this importance. It is also because that committee and the minister continue to say they cannot deal with anything outside the mandate of the minister and her department.

When we are fighting for the kinds of things we are in terms of resources on reserve, when we are fighting for more affordable housing and for the things that need to underline the purpose and the objective of the bill, it is even more important. As my colleague from the New Democratic Party has said, this law should be removed from the status of women committee and moved to the aboriginal affairs committee.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I appreciate the comments from my colleague, someone who obviously cares very passionately about our first nations community. I look to her to provide some leadership on the important issue of getting and engaging the different stakeholders throughout Canada that have a vested interest in ensuring this is done properly.

One of the suggestions she has eloquently spoken about is the importance of the bill going to the right committee. Could the member provide comment on those stakeholders and the valuable role they play in assisting and determining and ultimately maybe even providing leadership for having good sound policy coming out of the House of Commons?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, it is very important, from the research analysts to the membership and the knowledge of the people on the aboriginal affairs committee, to be able to not only receive witnesses here in Ottawa, as perhaps my colleague has suggested, but to go out and listen to the people.

We need to hear from the chiefs on how difficult this is when there is a situation of domestic violence where, again, someone gets the house and someone has to leave the community. This is very difficult and really goes against the whole collectivity and the self-governing interests of allowing communities to resolve things in an equitable way.

That means they must have the resources. It means the aboriginal affairs committee is the only place that can push, almost in a pre-budget consultation kind of way, to be fighting for the kinds of resources around housing, child care, legal aid and the kinds of things that would allow people to resolve this is in a fair and just way for first nations in Canada.

[Candice Bergen, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, for the average Canadian listening to this debate, we are talking about basic human rights for aboriginal women living on reserve.

We are not talking about any special rights that any other Canadian man or woman does not enjoy. We are talking about basic human rights.

My question to the women in the opposition parties, both the Liberal and the NDP, is: When will they stand up to the men in their party, to their male leaders, and say this is the wrong thing to do? We need to support the rights of aboriginal women to have basic property rights.

This bothers them, but it is a fact. We are talking about a very basic right, and I am just asking when my hon. colleagues will look at their male leaders and say we are on the wrong track here.

Even the opposition parties have to recognize that it is a basic human right for a woman on a reserve to have access to the property that she should have in the face of a divorce. All women who have gone through divorces in Canada have rights to their property and they have rights to support. Aboriginal women do not have this right.

When are the opposition women going to stand up for aboriginal women in this country?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, this a completely specious argument. We believe there is a legislative gap.

I would say to the member that I will take any man on this side to stand up for the rights of aboriginal women, including the brilliant Irwin Cotler who has been standing up for human rights for all his life—

[The Deputy Speaker, NDP, Joe Comartin]

The member knows it is inappropriate to use the name of a sitting member of this House.

Resuming debate, the hon. member for Churchill.