Status of Women Committee on April 23rd, 2013

[The Vice-Chair (Mrs. Tilly O'Neill Gordon (Miramichi, CPC)), Conservative, Tilly O'Neill-Gordon]

Good morning, everyone.

We welcome Minister Rona Ambrose and Minister Bernard Valcourt this morning. We certainly appreciate your taking time to be with us. We know you are very busy people, so we feel very special that you're giving your time to be with us today.

You each have 10 minutes. Either of you may begin whenever you are ready.

[Bernard Valcourt, Conservative, Minister of Aboriginal Affairs and Northern Development]

Thank you very much, Madam Chair.

Thank you for the opportunity to address the committee during its review of S-2, 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 proud to be here today, with my colleague the Honourable Rona Ambrose, Minister for the Status of Women, to talk about the steps our government is taking to improve the rights of families living on reserves.

I will start by asking all of my parliamentary colleagues and Madam Chair to allow me to first express my consternation and incredulity at the arguments I have heard in opposition to Bill S-2.

If I may also characterize this opposition, what I have heard from the opposition party's spokesperson in the House at second reading was a dressing up of the bill with a lot of the concerns that we all share about the situation of too many first nations in this country. Whether it be housing, water, access to roads, access to electricity, access to legal services, or the health of first nation community members, the suicide rate on reserves, or access to education and employment opportunities, these are all concerns that we share, but they have been raised in the course of the debate as reason to object to the enactment of Bill S-2 as law in this country.

Why oppose a bill about family homes on reserves and matrimonial interests and the bill's remedial provisions because this legislation does not address other concerns? Bill S-2 is not about housing, it's not about water, it's not about access to roads or access to electricity, water, or to legal services, or the specific health problems that first nation members suffer from.

This bill is about the rights of married or common-law couples living on reserve in the event of breakup of their relationship, or at their death. It's about an equitable division of the family assets and, in the case of violent and abusive relationships, protecting the spouse, the child and the children, if any, by allowing the court to grant an individual spouse exclusive occupation right to the family home.

After you undress the bill of the concerns expressed, which the bill is not aimed at, and address it for what it really is, you end up with the pure, simple question of the equality of the status of couples and families on reserve in case of conjugal relationships breaking down so their treatment will be comparable to that of other Canadian couples not living on reserve.

Many Canadians are not aware, for example, that in the absence of legislation like Bill S-2, a spouse who holds the interest in an on-reserve family home can, on his or her own, sell that home without the consent of the other spouse and can keep all the money. Or, that spouse who holds the interest in the family home can bar the other spouse from their home on reserve, without regard to the welfare of the spouse and the child or children, if any. Or, in the event of domestic violence or abuse, a court in this country cannot order the right of exclusive occupation of the family home to the spouse who holds the interest in the on-reserve family home, even on a temporary basis.

These rights are available to all other Canadians not living on reserve, whether they are aboriginal people or not. It is simply unacceptable, I submit to you with respect, that in this day and age, people living on reserve are not afforded the same rights and protections as those living off reserve. Individuals living on reserve should not be penalized simply because of where they live.

Yet for more than 25 years, since the 1986 Supreme Court decisions in two particular cases, Paul v. Paul and Derrickson v. Derrickson, aboriginal women and children living on reserve have had no rights to matrimonial real property. For them, the breakdown of a relationship or the death of a spouse or common-law partner can mean insecurity, financial difficulties, or homelessness.

When the members of the Standing Senate Committee on Human Rights studied Bill S-2, they heard first-hand from courageous individuals who came forward to tell their stories about how they have personally suffered the consequences of the lack of legislation governing matrimonial real property on reserves.

Bill S-2 responds to calls for action not only from aboriginal women, but also from international organizations and parliamentary committees. Even Manitoba's NDP government understands the urgency of the situation. At the Legislative Assembly of Manitoba's request, the assembly's clerk informed me that the they had unanimously adopted a motion urging Canada's government and Parliament to pass Bill S-2.

The bill—which I heard in the House—is neither paternalistic nor dictating to first nations. However, I submit that not passing it would be.

Under the proposed legislation, first nations can either choose to enact their own laws related to matrimonial real property rights and interests—laws designed to meet their particular needs and respect their particular customs and culture—or choose to follow federal rules.

By empowering first nations to develop their own laws in this area, Bill S-2 respects the diversity among first nations. They can adopt community-specific laws that may offer different and effective means—from the first nations' perspective—of addressing matrimonial real property issues on their respective reserve lands.

The proposed legislation would also ensure that, until such a time as a first nation is able to create its own laws, federal rules would provide families with the rights and protections they seek and deserve, just like all non-aboriginal citizens and aboriginals living off-reserve.

As a result, all men, women and children living on reserves will have equal rights related to the occupancy, transfer or sale of the family home that were not previously guaranteed to first nation members living on reserves.

More importantly, in situations of family violence, a spouse could now apply, with the benefit of this act, for an emergency order to stay in the family home at the exclusion of the other spouse, for a period of up to 90 days, with the possibility of extension. These provisions will allow victimized spouses or common-law partners in abusive relationships to ask for exclusive occupation of the family home for a specified period of time, providing victims and their dependants with a place to stay.

We have committed, as you all know, to the creation of an arm's length centre of excellence for matrimonial real property, which will assist first nations in the development of their own on-reserve matrimonial real property laws or in the application of the federal provisional rules.

Madam Chair, our government has undertaken an extensive two-year consultation process that included over 100 meetings at 76 sites across Canada. We have had ample opportunity to review, discuss, and debate the bill since it was introduced in 2008.

Time is flying, so I will allow my colleague Minister Ambrose to get in her 10 minutes also.

Thank you.

[Rona Ambrose, Conservative, Minister for Status of Women]

Thank you, Madam Chair.

Thank you to the committee for your work on this matter and the opportunity to participate in the committee's review of Bill S-2.

As Minister for Status of Women, I feel strongly that this legislation will provide options to women and children living on reserve who are experiencing family violence. Wives, spouses, or common-law partners who are living on reserve face the reality that in the event of separation, divorce, or death, the law currently does not protect their matrimonial real property interests or rights.

As Minister Valcourt indicated, it's been over 25 years since the Supreme Court of Canada identified this shocking legal gap. This is now our government's fourth attempt to pass this legislation.

Our government is committed to ending violence against women and girls in communities across Canada, and this legislation is part of that process. We are taking action to protect those who are most vulnerable in Canadian society—women in immigrant communities, women living in poverty, and aboriginal women and girls—through essential women's projects, but also through legislation like Bill S-2.

Bill S-2, which you know as the family homes on reserves and matrimonial interests or rights act, will guarantee the matrimonial real property rights and interests of women who live on reserve, and will protect spouses from violent domestic situations.

Most Canadians do not know that aboriginal women on reserve do not share the same basic right to property as women who live off reserve. This legal gap has led to the suffering of countless aboriginal women. Their suffering makes it clear why we need this bill to be passed by Parliament this spring. These women have waited long enough. I urge all parties to vote in favour of this bill.

Statistics show that aboriginal women are almost three times more likely than non-aboriginal women to report being a victim of a violent crime, including spousal violence. In 2009, close to two-thirds of aboriginal female victims were aged 15 to 34. This age group accounted for just under half of the total female aboriginal population over the age of 15 who were living in 10 provinces. Among victims of spousal violence, 6 in 10 aboriginal women reported being injured. For comparison, the proportion was 4 in 10 among non-aboriginal women.

According to Statistics Canada's Women in Canada report published in 2009, 15% of all aboriginal women who were married or in a common-law relationship had experienced spousal violence in the previous five years. In the same report, the rate among non-aboriginal women was 6%.

Our government has taken several actions to eliminate violence against women and girls. Since 2007, we've invested over $11 million in funding for projects specifically to end violence against aboriginal women and girls, and $19 million in the same timeframe on projects to empower and protect aboriginal women and girls.

Our government proposes to close this rights gap in the matrimonial property rights law, once and for all, with the passing of this act. This legislation is about eliminating an injustice by giving on-reserve women, including the victims of violence, access to the options that are available to other Canadian women.

I'm particularly pleased, and I know all of you would be interested, that this bill will provide emergency protection orders to aboriginal women and children who are abused. Emergency protection orders save lives. They are recognized by child and family justice advocates as one of the most significant means for preventing family violence.

Sadly, as I mentioned, we know that aboriginal women are more likely to experience spousal violence when compared to non-aboriginal women. Aboriginal women on reserve who are not able to stay in the family home are forced to flee the reserve with their children, sometimes with nothing more than the clothes on their back.

As it stands today, a woman living on a reserve who is a victim of violence has no legal protection other than pressing criminal charges. There is no mechanism to allow a parent and children exclusive access to a family home. Again, I repeat, emergency protection orders save lives.

In the case of domestic violence and physical abuse, a court cannot order the spouse who holds the interest in the reserve home, which is usually the male partner, to leave the home, even on a temporary basis. When a woman and her children are evicted from a family home on reserve, no judge currently has the power to intervene.

Extending the same rights that women off reserve have to aboriginal women living on reserve will address this dire situation. For women in the rest of Canada who are not living in this situation, when faced with family violence, the situation is much different.

When emergency protection orders are enforced, as you know very well, abusers can be removed, allowing the women and children to find safety in the comfort of their own family home. If aboriginal women are granted the ability to remain in the family home on reserve, they can escape situations of domestic violence while continuing to care for their children and maintaining vital access to the support of their community. Again, importantly, emergency protection orders save lives.

In addition to the protections provided by these orders, Bill S-2 also provides for the granting of temporary exclusive occupation of the family home. This protection is twofold. First, in situations of family violence, women can be granted temporary exclusive occupation of the home for a period of time extending past the emergency occupation. Second, in the case of the death of a spouse or common law partner, the surviving spouse is allowed to stay in the home for 180 days. During that time the surviving spouse may apply for exclusive occupation of the family home for a period of time to be determined by the courts.

There has been a need for this bill for a quarter of a century. Our government has brought this issue before Parliament four times now, debating this issue in both chambers and in committee now for over 50 hours. This includes more than 15 hours of debate on this particular bill alone. Yet, after spending $8 million on 103 consultation sessions, as Minister Valcourt spoke to, in 76 different communities across Canada, and after countless reports and studies going back a quarter of a century, the opposition is proposing more talk. But we say it is time to move forward.

We say it is time that aboriginal women living on reserve share the same rights as all other Canadian women, and this committee has the power to do exactly that. Members of this committee in particular have first-hand knowledge of the nature and extent of the problem, having recently studied the issue of violence against aboriginal women. You have heard the stories from aboriginal women and are aware of the factors that contribute to violence in their lives. This committee has a special understanding of what is at stake here.

As the Minister for Status of Women, I sought to address violence against aboriginal women by supporting many projects that address violence in a comprehensive manner and building economic security and developing the leadership skills that prepare women to successfully escape violent domestic situations.

As I mentioned earlier, since 2007, through the women's program, we have provided funding of more than $90 million in support of projects that help to empower and protect aboriginal women and girls. For instance, in the Yukon, the Liard Aboriginal Women's Society is helping aboriginal women transition to violence-free lives by building relationships between aboriginal women, law enforcement officials, and local service providers. These often-neglected relationships between aboriginal women and service providers can make the difference between service providers or law enforcement officers overlooking or recognizing a violent domestic situation.

Similar work is also being done to prepare law enforcement officers at the community level through the development of protocols, law enforcement orientation documents, and community safety action plans.

Our government is also supporting women who have been victims of violence through projects like that of the Creating Hope Society in Alberta. Their projects specifically support first nations women and girls living on reserves within the Edmonton city limits who have experienced violence by engaging first nations groups, service providers, and women and girls themselves.

Actions taken by this government to end violence against women and girls include increasing funding to the women's program to its highest level in Canadian history, funding over 600 projects now in Canada since 2007, and launching a comprehensive national action plan to combat human trafficking to ensure the safety and security of women and girls across Canada who are being targeted for sexual exploitation by violent traffickers. We've also developed a five-year national strategy aimed at enhancing the response of law enforcement and the justice system to cases of missing and murdered aboriginal women and girls by supporting culturally appropriate victim services and, of course, Bill S-2, which will give aboriginal women equal rights and access to their matrimonial property rights and emergency protection orders in cases of domestic violence.

In conclusion, Madam Chair, let me reiterate that this legislation is about eliminating an injustice. It's about closing a legal gap that creates inequality and leaves aboriginal women vulnerable. It's about ensuring that all Canadians, whether they live on or off reserve, have similar protections and rights when it comes to family homes, matrimonial interests, safety, and security.

In the course of your committee's deliberations on this bill I urge members to consider the previous testimony—of which there has been quite a bit by aboriginal women and leaders across Canada—of Betty Ann Lavallée, in particular, national chief of the Congress of Aboriginal Peoples. She said about Bill S-2:

The bill is addressing the real human issue of an Aboriginal person, sometimes often taken for granted by other Canadians. A spouse within an Aboriginal relationship should not be denied or put out on the street alone and without any recourse because of a family or marital breakdown.

I agree completely with her statement. Her words are informed by her knowledge of the often-harsh realities of day-to-day life faced by many female residents of first nation communities.

At the end of the day, Bill S-2 is about taking action also. It's been over 25 years since the Supreme Court of Canada identified this legal gap, and our government is closing this gap with this bill. Bill S-2 proposes an effective solution to this injustice and we hope that members on all sides of the House will support this initiative moving forward.

Thank you, Madam Chair.

[The Vice-Chair (Mrs. Tilly O'Neill Gordon), Conservative, Tilly O'Neill-Gordon]

Thank you for your great presentation.

We'll begin our rounds of questioning, beginning with Ms. Truppe for seven minutes.

[Susan Truppe, Conservative, London North Centre, ON]

Thank you, Madam Chair, and thank you, Ministers Valcourt and Ambrose, for being with us today to discuss this important issue.

The issue of the lack of matrimonial property rights on reserve has been raised a number of times in the last 25 years, and we've seen four independent reports and three parliamentary committee studies on this topic, all of which called for legislation to fill this legal gap.

Minister Valcourt, could you explain the gap between the current provincial and territorial legislation and the current situation on reserve with regard to matrimonial property rights.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

As was alluded to earlier, since the Supreme Court of Canada rendered those decisions 25 years ago, the impact and the effect of those decisions was that the court made it clear that the provincial and territorial matrimonial property laws that aboriginal spouses living on reserve had attempted to use in the past, and had benefited from on occasion, did not apply to aboriginal people living on reserve. So first nation communities that are reserves under the Indian Act do not get the benefit, and that's the gap that Bill S-2 is trying to fill.

This government has been at it now for a number of years, and we believe it's time that the gap be filled.

[Susan Truppe, Conservative, London North Centre, ON]

Thank you.

I can't believe that the Supreme Court did that to aboriginal women. What will the legislation do?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

The Supreme Court is bound by the law of the land and the Constitution is clear as to the allocation of powers between the federal and provincial governments.

In terms of what this legislation does, and it is important that the committee consider this, there are two sides to it. The first is that there are provisional rules that will apply throughout first nation communities, but they are provisional until the first nation itself adopts its own laws, which they can. The reality of first nations in Canada is that they are different; they have different cultures and different customs. Now with this bill those who choose to do so will be able to draft and pass their own laws, which will be endorsed and approved by the community, and then be applicable on reserve.

This is why I said earlier that this is not at all paternalistic. This is giving the first nation communities the powers to adopt laws that will deal with the very issue at the heart of Bill S-2. For those who don't, then the federal rules will apply. We know that this will not happen overnight. That's why we have this one-year period from the day the bill receives royal assent. For one year nothing will happen. The first nations who want to adopt their own laws during that year will be able to do so. They will come into force one year after royal assent, just like the provisional federal rules will. At that time, either the federal law applies or the local community law applies.

I think it's a practical approach to a difficult problem in terms of implementation. What you also have to know is that the centre of excellence, which will be set up after royal assent is given to the bill, will help first nations in developing these laws for their own communities.

[Susan Truppe, Conservative, London North Centre, ON]

Thank you.

Legislation on the topic of matrimonial property rights on reserve has been introduced into the House and Senate four times in its various forms, and has been debated for over 40 hours in the House of Commons, Senate, and at committee. A total of 103 consultations were held across the country in 76 different locations over the period of the drafting of this legislation. I was hoping you could speak to the pressing need for this legislation and the importance of resolving the issue as soon as possible.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Let me put it succinctly here. Every day that passes is one more day that women and children living on reserve do not have access to the same protections offered those living off reserve. We should not have second-class citizens in this country.

[Susan Truppe, Conservative, London North Centre, ON]

Thank you, Mr. Valcourt.

[The Vice-Chair (Mrs. Tilly O'Neill Gordon), Conservative, Tilly O'Neill-Gordon]

Okay. We'll move to Niki Ashton for seven minutes.

[Niki Ashton, NDP, Churchill, MB]

Thank you, Ministers, for joining us today.

We recognize there is a legislative gap that is important to address—no question about that. But we have real problems with the lack of consultation, the lack of respect for first nations jurisdiction. We've worked closely with the Native Women's Association of Canada and the Assembly of First Nations, who have expressed real concern about this piece of legislation, and of course with first nations across the country, who also oppose this legislation.

To both Minister Valcourt and Minister Ambrose, did you consult with all first nations across Canada around Bill S-2?

[Rona Ambrose, Conservative, Edmonton—Spruce Grove, AB]

I'll speak quickly to some of the issues around addressing violence against women, then I'll let Minister Valcourt speak to the actual consultation.

[Niki Ashton, NDP, Churchill, MB]

I'm more interested in the consultation, actually. That's the piece—

[Rona Ambrose, Conservative, Edmonton—Spruce Grove, AB]

Okay, but there is one thing I would like to share with you. Michèle Audette, who is now the president of the Native Women's Association of Canada, was one of the witnesses. During her testimony she said: ...we are giving this bill a favourable reception because it will put an end to the legal vacuum. It will protect women with regard to family and spousal violence.

For this committee, I think this is a really important issue.

When Minister Valcourt and I talk about the access to emergency protection orders and access to exclusive rights to the home, as I said, family justice advocates say that emergency protection orders—and we all know this, as women who care about ending family violence—save lives. These orders are one of the most significant tools that we can use to prevent family violence.

So I'll end there and allow—

[Niki Ashton, NDP, Churchill, MB]

Yes, and again on the consultation, because that's the point I didn't hear—

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

On the consultation issue, maybe you will remember that it was this government that initiated a four-phase comprehensive consultation process starting in 2006 and ending in October 2007. The national consultation phase took place from September 29, 2006, to January 31, 2007, and that's the one that included 103 sessions in 76 sites.

Over $8 million was spent on the process conducted by the Native Women's Association of Canada, by the Assembly of First Nations, and by Aboriginal Affairs and Northern Development Canada, so it was not a consultation done only by the department. The Native Women's Association of Canada and the Assembly of First Nations each received $2.7 million for their participation in the consultations.

[Niki Ashton, NDP, Churchill, MB]

Mr. Minister, with all due respect, I appreciate the figures and the timelines, but the question here is that there are over 600 first nations in Canada. Did the Department of Aboriginal Affairs and Northern Development, and you as the minister or your predecessors, consult with every single one of these first nations? Yes or no.

[Rona Ambrose, Conservative, Edmonton—Spruce Grove, AB]

Did we consult with every woman before giving them the right to vote? Seriously! Is this a question? Do you think we should continue to consult on equality of rights for women and access to emergency protection orders? Do you want to continue to consult? We've consulted for 25 years.

[Niki Ashton, NDP, Churchill, MB]

I don't think the questions are supposed to be directed to me. I think this is our opportunity to ask you the questions. And my question is very simple and around respect for first nations' jurisdiction.

First nation women have treaty and aboriginal rights and those rights need to be respected. This government—your government—signed on to the UN Declaration on the Rights of Indigenous Peoples, and in that declaration there is a duty to consult. We find it egregious that that proper consultation hasn't taken place.

Let me move on to another topic, because I understand, Ms. Ambrose, that the issue of violence against women is something that you've expressed real interest in. My question, perhaps to both ministers, is that if your government is interested in violence against aboriginal women, why not listen to the families of missing and murdered aboriginal women and call a national inquiry into missing and murdered aboriginal women?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

On the issue of consultation—and you come from this very province—maybe you should listen to your father.

They told us clearly—

[Niki Ashton, NDP, Churchill, MB]

Excuse me, Mr. Minister.

Madam Chair?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

The Legislative Assembly of Manitoba exhorted us to pass Bill S-2. If there is a province where there is an important aboriginal community experiencing serious issues and problems, it is Manitoba among others. You talk about consultation.

[Niki Ashton, NDP, Churchill, MB]

Mr. Minister, I feel offended by the comment you made.