Status of Women Committee on Oct. 24th, 2006

[Jim Prentice, Conservative, Calgary Centre-North, AB]

These are difficult questions to answer. Regardless, it's critically important that we discuss Quebec and other provincial legislation.

On the specifics of the case, as minister I have heard of similar situations involving family-owned and -operated businesses where, upon the dissolution of marriage, the males ended up taking all of the property. In fact, one of the women who spoke on September 29 at the official launch had been in exactly that circumstance. So that is part of what we are trying to remedy.

[The Chair, Liberal, Judy Sgro]

Thank you, Mr. Prentice.

Ms. Smith is next.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

I'll share my time with Mr. Stanton.

Very briefly, Minister, we're so happy that you're here today and so pleased that this issue will finally have a place in Canada law where matrimonial property rights will be encompassed.

I'm also very interested in what Wendy Grant-John had to say about the traditional values. Our son is married to an Ojibway girl--he's in the RCMP--and this kind of culture is very important to the roots and the foundation of any aboriginal family.

Could either the minister or Wendy Grant-John speak a little bit more about the importance of this and why we have to be very mindful of some of the things that are presented to us in this legislation that will come forward?

[Wendy Grant-John]

I'd be more than happy to.

When we look at our communities as they are today, there is a huge struggle because of a lack of understanding on the part of the non-aboriginal community about where we were as communities and about our ownership of land. We'll just deal with ownership of land. I can't go into the whole big picture.

In fact, before the imposition of the Indian Act women did hold land collectively, but it wasn't the kind of ownership we look at now, which is fee simple, and you can trade it around or sell it. The ownership and the value of it was held by the family, with the women having as much say as anyone about how it was distributed, how it was broken up, and what it was used for. Once the Indian Act came into effect, there was, of course, the Westminster model, and the lands were broken up. I know that in a lot of communities, they only gave them to the male heads of the family.

I want to make a little bit more of a comment with respect to the place of women. I've done a lot of research in this area, and it reinforces what the elders are saying to us, that the women did hold.... As a matter of fact, I think the women held a higher place in our communities in a number of areas than did the men.

When you do your research, you see in a number of writings that when the non-aboriginal people came into our communities, one of the first things they said is this. What you need to do in order to--and these words I don't agree with--civilize the Indians is break the relationship between the men and the women. You need to instruct the men on how to treat their women, because their women have too much power. The women have too much of a place in the community and in decision-making; therefore, we need to ensure that the European men teach the Indian men how to treat the women.

The women in our communities know this, and they are still holding on to all the culture, all the history, all the stories. The women hold those, and as the givers of life, they hold a very high position. That's what we're talking about when we talk about returning to those traditional values and ensuring that when we build our communities from the ground up, which we want to do, we have the place of women, which is at a much higher place than it is in the non-aboriginal community, I'm sorry to say.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Thank you.

[The Chair, Liberal, Judy Sgro]

Mr. Stanton is next.

[Bruce Stanton, Conservative, Simcoe North, ON]

Thank you, Madam Chair.

At a very practical level, in the non-native realm and through provincial law, when there's a marriage breakdown, the real property is often sold and the value of what is deemed to be the real property or other family assets is divided so that the couple can take the value of those assets and move on with their lives.

In a case in which there needs to be respect for things like land tenure within and on reserve, ultimately when there's a marriage breakdown and the woman may wish to go on and make a different life for herself--or the man, for that matter--there needs to be some reconciliation of the value of the property. Through this process, has there been any discussion thus far about the monetary remedy? If a monetary-type remedy comes to the table in a case like this, how would that typically be funded, in a case in which real property can't in fact be sold?

[Jim Prentice, Conservative, Calgary Centre-North, AB]

Christine Aubin, a lawyer with the Department of Justice, is working on this file.

[Christine Aubin, Legal Counsel, Legal Services, Department of Justice]

The Supreme Court of Canada has taught us through two cases, one being the case of Derrickson v. Derrickson and the other one being Paul v. Paul. They were twin cases.

The one more on point is the Derrickson case. It looked at the situation of Mr. and Mrs. Derrickson, who were in that very situation that you are pointing to. The court first concluded that in effect provincial laws relating to the specific issue of matrimonial real property within family law could not apply on lands set aside as reserves. Then, after going through an analysis of the conflict that would have with the Indian Act, the court turned around and identified the remedy of the compensation payment, or the payment in lieu of division of assets. It found that there would be no conflict, as there were no provisions in the Indian Act dealing with compensation payments, and that it was a remedy that might be applicable in the case of Derrickson v. Derrickson.

[Bruce Stanton, Conservative, Simcoe North, ON]

If there is then compensation deemed in the case of a marriage breakdown, or if there's a resolve that compensation is owing to one or the other--if one person is to stay on reserve, for example--how would that be funded? Would the band, in this case, need to allocate resources? In a practical sense, where would those dollars come from?

[Christine Aubin]

When there is a marital breakdown, the division of property or the compensation in lieu of the division of property is a dispute between two individuals, whereas if one spouse owes, as part of the compensation payment, a balance of moneys to the other spouse, it's certainly up to that individual to come up with those funds. However, there will be a valuation of that spouse's assets in order to, first, determine the compensation payment, and second, effect the compensation payment.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

Ms. Crowder.

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

Thank you to the minister and staff and to Wendy Grant-John for coming today.

I looked at the INAC website, and there are lessons learned from the U.S. experience. In a nutshell, it talks about the resolution of real property disputes under tribal law and by tribal courts tending to be more successful than dispute resolution under alternative regimes. It's much more complicated than that, but that's it in a nutshell. I heard Wendy Grant-John say that it is becoming more acceptable in communities to look at legislation, so I assume implicit in that is that perhaps not all communities are there.

My question is a two-part one, one to the minister and one to Ms. Grant-John.

To the minister, given the range of proposals that were in your presentation, are there minimum standards that you would like to propose that legislation or bylaws might need to meet? If yes, what would those minimum standards be?

Ms. Grant-John, could you expand on that comment about it becoming more acceptable? I assume there are people who are saying legislation by the Canadian government is not acceptable.

[Jim Prentice, Conservative, Calgary Centre-North, AB]

I'll do the best I can, Ms. Crowder, to answer that question.

In terms of what's happening out there and the legislative void, I noticed, in the media coverage that surrounded the September 29 announcement to start the consultation, that one channel at least had described this as a loophole in the law. I think it's a lot more than a loophole in the circumstance where we have 250,000 Canadian citizens, first nation citizens, women, who are living without the protection of the same matrimonial property laws as apply to other Canadian women. I regard this as a very serious human rights issue that needs to be addressed and remedied quickly. I said this before when I was here and I'll say it again: I appeal across party lines to every single parliamentarian who's at this table to help us make sure this initiative works, because it is not acceptable in Canada in 2006 that we have a quarter of a million women who don't have the same rights as other off-reserve Canadian women.

At present, there is some limited progress being made. There are 630 first nations across Canada, and as I recall, 11 have adopted matrimonial property regimes that are consistent with laws of provincial application. Most of the current modern self-government regimes that are being negotiated as part of land claim settlements deal with the issue of matrimonial property, but not even all of those actually deal with the issue. Some of them deal with it by reference to provincial laws, some deal with it just by silence, frankly, and some of have adopted first-nation-specific codes.

So there's a range of alternatives being pursued, but at the end of the day, what we're looking for in this step forward is a law of general application that will apply, pending first nations putting in place their own matrimonial property regime that's consistent with the charter and consistent in a general way with the equilibrium and balance that we see in provincial matrimonial property legislation.

[Wendy Grant-John]

Thank you for raising that and having me qualify what I did say.

Concerning the acceptance of the legislative models, what I was talking about--and I didn't underscore this--is that when we look at the gap, or the void as it's being called, I'm talking about that kind of acceptance within the Indian Act itself. People want to ensure that there's something there, but the key point is that it's only a step towards jurisdictional recognition for their own models. That is very clear everywhere we go: we will accept going through the legislative model until we have our own in place.

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

Do I have time left?

[The Chair, Liberal, Judy Sgro]

A minute left.

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

Ms. Grant-John, what I'm hearing you say is that it looks like an interim solution until first nations communities are prepared to step into it with their own codes.

[Wendy Grant-John]

Well, there needs to be something done immediately, and this is an instrument we have that's ready to go. People are saying yes, we need to ensure that...because it's mostly women and children who are affected, even though there are men, and I can give examples of that. It's about the underlying jurisdiction in the end, but right now let's put whatever we can in place to ensure that these women and children are protected through this process.

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

You specifically referenced changes to the Indian Act versus the provincial legislation.

[Wendy Grant-John]

Well, there are the three models out there right now, but there are other ways of going at it as well. There might be other options.

[The Chair, Liberal, Judy Sgro]

Ms. Minna.

[Maria Minna, Liberal, Beaches—East York, ON]

Thank you, Madam Chair.

First, I know something that exacerbates the whole issue here is the shortage of housing on reserves, and I wonder whether that was part of the equation. I know we are looking at the consultation and possible legislation, but I'm wondering if the underlying cause that exacerbates the situations on reserves is also part of the policy development.

[Jim Prentice, Conservative, Calgary Centre-North, AB]

It's certainly part of the policy development in the department, but the consultation is directed to the legislative model by which we can protect women and children with matrimonial property rights. It's not dealing with many of the other issues that the former government addressed, which we are addressing.

[Maria Minna, Liberal, Beaches—East York, ON]

I understand. I guess what I'm saying is that the shortage of housing is the main problem that causes this issue to become that much more difficult. What I'm asking the minister is what housing plans there are, in terms of housing on the reserves, to alleviate the situation.