Status of Women Committee on April 23rd, 2013

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

Was there money in the budget?

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

—that, to help the communities, the first nations, to pass the laws.

Coming back to your other argument about access, let me characterize this as legal aid. I was a member of the bar in New Brunswick when the first matrimonial property act was passed. We got the same argument from several men, who were opposed to the bill because many women would not have the legal or financial resources to access the benefits of that law. The experience in all provinces, not only in New Brunswick, is that all of the married couples, especially women, have benefited greatly, even if they didn't have the financial resources for these high-priced lawyers. It's not a concern that I share with you.

I find it interesting that you said you were withholding your support for this bill. I don't want to be political, but on the second day of your new leader being in the House, I thought it rich that he would stand up to talk about the Charter of Rights and Freedom and then instruct his caucus to vote against this bill.

I don't dismiss the concerns you have about the side issues that do influence this, but the fundamental question is equal rights for women and children on reserve.

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

I accept my role of critic.

Minister, I'm speaking with the instruction of native women across the country. They do not feel protected by this bill without the other issues being dealt with.

Maybe there's something simple you could help me with, then. Can you address the concern over creating the potential for open-ended interests for non-first nation individuals on reserve?

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

This concern is addressed in the bill. As you know, the bill allows first nation councils to intervene in the court processes that will decide those issues. These are considerations that are legislated in the bill and that the court will take into account, just to avoid the problem that you raised.

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

Thank you.

Moving right along, Ms. Bateman, for five minutes.

[Joyce Bateman, Conservative, Winnipeg South Centre, MB]

Thank you, Madam Chair.

Ministers Ambrose and Valcourt, thank you for participating in our committee's review of Bill S-2. This is a very important bill.

Minister Valcourt, I share your utter incredulity with the fact that this legal gap has existed for 25 years. If my colleague's husband was incredulous, I can't even describe the shock my 15-year-old daughter has that this is the law in Canada. So I'm delighted that you're helping us all to change this.

This legislation is quite unique because it's interacting alongside both provincial and territorial legislation, it has to take into account the first nations law, and the First Nations Land Management Act. Obviously, there are a few first nations that have been proactive and have changed this in their own communities, but the vast majority of first nations are not protected. There remains a legislative gap.

I have a few questions. Either minister, as you wish, can respond.

First of all, I'd like a little bit more information on how Bill S-2 is allowing first nations to enact their own laws on the topic of on-reserve matrimonial property rights. I'd like to add that notwithstanding the comments from the colleague from the Liberal Party, who indicated that shelters are preferable, they really aren't in my view as a mother. I think in the case of a marriage or a family breakup, it's always preferable for the child to stay in the home, regardless of which parent stays with them.

To the other question, could you describe how this bill will apply to first nations, including those that are already under the first nations land management regime and the self-governing first nations?

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

Briefly, you rightly point out that some current first nations will be excepted from the application of this act. There are those that have concluded self-government agreements and they already have the power to enact laws with regard to matrimonial property. We have canvassed those that they have, and these laws are working perfectly well. They are in line with the rights that other women and other couples in Canada enjoy in case of a marriage breakdown or a death.

As to the ability of first nations to pass these laws, the act is clear about this. But what I think is more important is that the provisions are culturally sensitive. We know that first nations have different customs, different cultures, in regard to their day-to-day lives. They will have the power under the act to propose to their community members a law that is respectful of their customs, of their culture. We think this is an important aspect of this bill.

I share the concerns expressed by the opposition members, and I've also heard from our caucus members that the timeline during which they will be able to pass their own laws is a concern. That's where the centre of excellence comes in. We think they can do an enormous task in helping the first nations develop these laws so they can be in effect as soon as the first nation determine them.

Do you want to add something?

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

I would just continue to add to the urgency of implementing family protection orders and address an issue, a legal gap when it comes to dealing with violence against women and girls on reserve. I've said it repeatedly, but every other Canadian woman in this country who is not living in a situation on reserve has access to legal protection that aboriginal women and girls on reserve do not have access to. When we look at the statistics around violence against aboriginal women and girls, it's very concerning that we don't have those. It's about prevention, and it's about intervention, and about prosecution. That's how we end violence against women, and we don't have that right now on reserve. So I urge all parties to study this bill, but also to pass it as quickly as possible.

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

Thank you.

We'll move on to Jean Crowder.

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

Thank you, Madam Chair.

It's good to see the ministers here on such an important matter, and I guess where we would all agree is that it's well past time to deal with the issues of matrimonial real property. Where we would disagree is on the methodology.

I just want to add a bit to something the minister had said about testimony that Michèle Audette, from the Native Women's Association of Canada, provided.

She said in her testimony at the Senate that:

Once again, after everything that our sister here has been through, yes, it's a salve, but if our communities don't have the financial, human and material resources needed, it's going to be a failure. When you live far from the urban centres and you wait a long time for a sentence, a decision or some protection, you just give up and say, "What's the point in filing a complaint or reporting something?

So I want it to be clear that Madame Audette did not give unqualified support to this bill. She raised grave concerns with the ability of first nations communities to actually implement the bill.

I know you are very familiar with this process, so I would appreciate a yes or a no answer to my next question. Did either of your departments conduct a constitutional, section 35 analysis about whether this bill would infringe on aboriginal rights and title? Just yes or no would be fine.

Minister Ambrose, did Status of Women do so?

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

This is something that I'll let Minister Valcourt—

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

Absolutely. Every piece of legislation that is submitted to the Parliament of Canada is subjected to a section 35 assessment.

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

Great. Would you be able to provide that analysis to the committee members so we could review that section 35 analysis?

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

The legal advice given to ministers is privileged.

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

Okay, so we'll have to look elsewhere for whether we think there's been an infringement.

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

Right. Yes.

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

With regard to the report of the ministerial representative on matrimonial real property from 2007—and this touches a bit on the concerns Madame Audette raised about the difference in resources—she says on page 75 in her report:

If First Nation governments are to be looked to, to provide rights and remedies comparable to those available under provincial and territorial laws, while taking into account the distinct nature of the land regime in First Nation communities, there must be a comparable scope of recognized jurisdiction, resources, capacity and institutional development. Otherwise First Nations would be placed in a catch-22 situation—they would be held to the same standard as provincial governments but not have the resources and capacity to achieve it.

Have either of your departments done an analysis of the gaps between what is available to first nations on reserve versus what would be available in terms of legal aid, access to police officers, and the ability to enforce these? Have you done that kind of analysis of this legislation?

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

This question has certainly been considered in the department, and of course we are always analyzing what the capacity is. There are certain communities where there is no capacity issue, but with others there is. That's why we trust that the centre of excellence will be a useful tool to help address—

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

Mr. Minister, forgive me—

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

Can I answer the question?

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

Actually, you're not answering my question. The centre of excellence—

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

Can I answer the question, Madam Chairman?

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

Yes.

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

The centre of excellence, we trust, will be able to help those communities that face more difficulties in implementing this kind of legislation. But what we must not lose sight of is the fact that if a first nation does not have that capacity, the federal rules will apply. At the end of the day, those women, those children, those couples living on reserve, will get the same protection as other Canadians have.

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

Mr. Minister, forgive me, but my question was not to do with whether or not first nations needed support in terms of developing custom codes. My question was about whether or not your department has done the analysis of whether first nations will have the capacity to actually enforce Bill S-2 once it's passed, and whether they will have the capacity to provide support around transition houses. We know that oftentimes when there has been some dispute between partners, people are faced with the difficulty of whether or not there will be legal aid.

Those are the questions that I was asking, not whether or not they would have the capacity to support development of custom code.