Status of Women Committee on May 9th, 2013

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Mr. Jean.

I would imagine that the members of the opposition would like to respond to your comments, but, unfortunately, according to the motion before us that dictates the order of speaking, they will not be able to take the floor again.

Ms. Sgro, you have the floor.

[Judy Sgro, Liberal, York West, ON]

To Mr. Jean's comments, all of us would like to see this passed. We'd like to see the changes go forward for people who are on reserve. But I think it might have been helpful if the committee had gone and visited a few of the reserves, and talked to some of the people on the reserves, and looked at really where some of them are situated.

I think Ms. Ashton's comments are very valid. As I read this, it would be fine in the city of Toronto. It would be fine in our cities, because there are lots of resources. But some of these reserves are very remote, and they don't have any of this help. I don't want to mislead women into thinking that they have enforcement mechanisms out there, and giving them a false sense of security, when there isn't anybody out there to help them.

Bill S-2 is going to help, but it's only going to help a bit. It needed to go the rest of the way. That is exactly what Wendy Grant-John said, that you can't cherry-pick. That's the problem. Otherwise, you know what? We'd all support this gladly and get it through. But it needs the other things. It needs the access to shelters. It needs the resources. That's what's missing in the bill.

In her report, Wendy Grant-John said that they needed the financial resources to be made available for implementation of non-legislative measures such as programs to address land registry issues, mediation and other court related programs, and so on and so forth. You all know what it says.

What you've done, as the government, is you've chosen to just cherry-pick certain parts that sound really good but aren't doing the job that needs to be done. There are no resources being put here. You are, I believe, misleading people to have a false sense of security.

I'm going to support clause 16, all right? We're going to support this. But again, you're fixing half of a problem and misleading people. I'd like to have gone further—I think we all would have—and seen that there were the resources to back up Bill S-2.

Put the money into it, have it happen within 36 months, and give the kind of support that those women are looking for us to deliver.

Thank you.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Ms. Sgro.

I will now turn to Ms. Crockatt.

You have a maximum of three and a half minutes.

[Joan Crockatt, Conservative, Calgary Centre, AB]

Thank you very much.

I just wanted to point out that we heard in testimony, and I found it very persuasive, that the place that women and children want to be is in their homes—they would not want to be in shelters, taken out of their community—and that this will actually provide them with the opportunity to stay in their homes. That is the best place for those women and children...and with their family supports around them, and with their native community, and with their culture.

So the talk about building more shelters is not to the optimum that these women want.

Thank you.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Madam Crockatt, thank you.

Do I see anyone else who wants the floor?

(Clause 16 agreed to)

(Clauses 17 to 19 inclusive agreed to)

(On clause 20—Court order)

Madam Ashton, you have the floor.

[Niki Ashton, NDP, Churchill, MB]

Yes, I'd like to speak to clause 20, which is on the exclusive occupation order. We'd like to note that the government has made misleading statements throughout the examination of this bill, indicating that it would lead to one of the partners having ownership of the home. As we see in this clause, this is not the case, as we are talking about exclusive occupation. The exclusive occupation order is extremely problematic for us. Based on the testimony we've heard, it leaves many questions unanswered. It also speaks to the essence of this bill.

I want to read into the record what Chief Maracle of the Tyendinaga Mohawk Council wrote:

Bill S-2 is paternalistic. It delegates authority to the First Nation to develop a law respecting the use, occupation and possession of family homes and land on reserve when a relationship breaks down or upon the death of a spouse. It does not [recognize] that family law is and should be First Nations jurisdiction.

I would like to indicate that it poses a number of questions that remain throughout the bill in respect of reaching an agreement between partners on payouts or financial arrangements. Obviously, the question that will be asked is this. Will the woman—if it is the woman who will have occupation of the home—be able to be part of a financial arrangement with her partner to split what this bill says they own and to pay out to the partner the share agreed upon through the courts?

There's also the question of defining the value of the home and the property. Real questions exist regarding assessing value of property on reserve. It is something that is very problematic. As we know, various first nations—

[The Chair, NDP, Lysane Blanchette-Lamothe]

Madam Ashton, I need to interrupt you. I'll stop your time.

I see a point of order from Mr. Jean. You have the floor.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Yes, sorry to interrupt Ms. Ashton, but are we on clause 20?

[An hon. member]

Yes.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I didn't see any of the things she's referring to. I'm not sure how any of what she said has to do with this clause. It talks about how the best interests of the children would be the primary consideration under paragraph 20(3)(a), including “any children who habitually reside in the family home”, and 20(3)(b), “the terms of any agreement between the spouses or common-law partners”.

This is in relation to an exclusive occupation order. I'm not sure what it has to do with the valuation of property. I wasn't sure if she was on the right clause or not. I just wanted to point that out. Maybe she could make it relevant.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you. That is actually a valid point of order. The debate must be related to the clause.

Ms. Ashton, you still have two and a half minutes left. If you use them, you can probably quickly manage to link your comments to clause 20.

[Niki Ashton, NDP, Churchill, MB]

I want to add that there are repeated references, as we know from our witnesses, regarding the availability of other suitable accommodations situated on reserve, regarding the lack of housing.

It was noted in the testimony that in Sagkeeng First Nation in Manitoba, for example, there's a shortage of around 500 houses—not people on a waiting list but actual houses that are needed for families. We heard from Deputy Grand Chief Fiddler regarding the lack of housing in the NAN territories, which is in the thousands overall.

If these occupation orders are imposed, where will people go?

My colleague referenced the multiple generations that are often in houses—sometimes by choice, sometimes because people simply have nowhere else to go with such housing shortages.

I'd also like to add that there have been repeated references to the lack of access to courts and legal services, which are obviously involved in applying occupation orders. That's something that is not addressed by clause 20, this bill, or anything that this government has said on Bill S-2.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Ms. Ashton. Your argument was in fact related to clause 20.

No one else seems to want to speak.

(Clause 20 agreed to)

(Clause 21—Order after death)

[The Chair, NDP, Lysane Blanchette-Lamothe]

Ms. Crowder, you have the floor.

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

Thank you, Madam Chair.

There are a couple of points I want to make on this, and for Mr. Jean's benefit I'll be referencing section 21(3)(b) in particular, and 21(3)(g). One of the challenges is that we will be asking provincial courts to take a look at the exclusive occupation order after death. We just had a bill before the aboriginal affairs committee where the section dealing with wills and estates was withdrawn from the bill because of the complexity of the situation and the fact that you can't just take wills and estates and refer it over to the provincial courts to interpret. That would include things like an exclusive occupation order, because of the complexity of the land codes. I just want to touch on a couple.

One is that the family home could be a variety of different things. It could be capital housing, which is housing paid for by the band members. It could be social housing, which is housing owned by the band. It could be a band-owned rental. It could be a certificate of possession. It could be a custom allotment. So when you're talking about exclusive occupation and interpreting the terms of the wills, the question becomes whether or not there will be the ability to actually interpret that.

The second piece I wanted to touch on was paragraph 21(3)(g), the fact that the family home is the only property of significant value in the estate. In this particular piece, again, there could be challenges in terms of valuing the family home because the conditions for the evaluation are quite different on reserve from what they are off reserve. Again, provincial courts will be in a position to have to interpret these particular sections and whether or not they have the resources and the tools and the capacity to do that.

The other issue that came up around wills and estates—because it does talk about the collective interest, and it also talks about the best interests of the child—was the fact that some provinces don't recognize custom adoption. If we have an order that's looking at an exclusive occupation order and it's in a province that does not recognize custom adoption, one wonders how they're going to look at the best interests of the child. Again, what kinds of resources are going to be provided to the provincial courts to interpret these different customs? I want to just turn briefly, again, to the acting Canadian Human Rights Commissioner. In the tool kit that he referenced, they actually put in a section here—it's article 34 of the United Nations Declaration on the Rights of Indigenous Peoples, which says:

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

The issue around custom adoptions would fall within that jurisdiction that first nations recognizes but provincial jurisdictions may not.

Thank you, Madam Chair.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madam Crowder.

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I was looking through my list of amendments and I was going to raise a point of order. But I don't see any proposed amendment or practical positive proposal from either the Liberals or the NDP on this particular clause and I'm wondering, since they're evidently going to vote against it, maybe they could, next time they've had seven years to do it, come forward with a proposal on different legislation.

I would like to say very quickly, in regard to Ms. Crowder's point, the courts recognize in loco parentis, which is standing in the place of a parent. So as far as custom adoptions go, they look at the evidence in relation to in loco parentis and whether a person has stood in the place of a parent. I know wills and estates is an issue because it can unilaterally be changed by an individual and that's one of the reasons it should be put in there. I just wanted to point that out.

These are all the amendments that have come forward from the other parties? There are no amendments in relation to section 21?

[The Chair, NDP, Lysane Blanchette-Lamothe]

For the time being, there is no amendment to that clause. Members have the right to comment on and debate each clause, if they so wish.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Absolutely. I just thought since they have had seven years before—

[The Chair, NDP, Lysane Blanchette-Lamothe]

No, there is no amendment to clause 21.

Ms. Crowder, you have the floor.

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

How much time do I have left?

[The Chair, NDP, Lysane Blanchette-Lamothe]

You still have one minute left.

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

Thank you.

With regard to the amendments, I appreciate Mr. Jean's comment. However, an amendment to this bill to reflect what we heard from witness testimony would have been ruled out of order by our distinguished chair because it would have required the government to spend money.

I can assure you that any of the amendments I would have proposed would have been determined as outside the scope of the bill. Those amendments would have included things like funding for legal aid, funding for additional housing on reserve, funding for counselling, funding for addictions treatment, funding for developing alternative dispute resolutions, and funding for the first nations in order to develop their own matrimonial real property codes.

There were a number of amendments that I would have been pleased...but I'm sure the government would have opposed every single one of them.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madam Crowder.

(Clause 21 agreed to)

(On clause 22—Family violence)

Madam Day.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Madam Chair, we have some concerns about this clause in relation to family violence issues.

Mr. Jean spoke earlier as a white person, a father of two or three children who each have their own room perhaps, in a big house. I understand that Mr. Jean is not a regular member on this committee. But we are talking about families that include both sets of grandparents, the parents-in-law and the children. In some cases, 14, 15 or 16 people live together in a very small house with one or two rooms. That is not the same thing at all. Many witnesses told the committee on a number of occasions that the bill was not dealing with domestic violence, which is the substance of this clause. We are talking about family violence in Aboriginal communities.

This bill will not necessarily prevent family violence, particularly in cases where so many people live under the same roof.

As Quebec Native Women and the Native Women's Association of Canada mentioned, this legislation cannot be enforced properly if the legislative measures are not accompanied by non-legislative measures. That is what almost all the witnesses are asking for.

Yesterday, witnesses from First Nations, just like other witnesses before them, confirmed that this bill should provide for financial resources so that the law can be enforced properly and so that it can be said that it has a real impact on the safety of Aboriginal families. The simple fact that there are not enough transition houses to ensure the safety of women is one example. That is also an issue that a number of witnesses have brought up.

In the event of an emergency, where are the judges, the lawyers and all those others who will be able to help Aboriginal peoples?