Debates of Feb. 13th, 2007

Indian Act

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Speaker, I am pleased to express my opinion on Bill C-289, An Act to amend the Indian Act (matrimonial real property and immovables).

As we debate Bill C-289, we are also debating government bill C-44. The latter proposes to repeal section 67 of the Canadian Human Rights Act. The adoption of these two bills could be prejudicial because they run counter to commitments made by the government in May 2005.

In May 2005, the government promised to renew and strengthen the collaboration of the government and first nations, specifically by consulting the first nations before developing policies that impact them. This principle of collaboration constitutes the cornerstone of the new partnership. The private member's bill of the Conservative member for Portage—Lisgar directly affects this government commitment made to native peoples.

I have the statement made by the Prime Minister on April 19, 2004, and reiterated by the government on May 31, 2005. It states:

It is now time for us to renew and strengthen the covenant between us...No longer will we in Ottawa develop policies first and discuss them with you later. The principle of collaboration will be the cornerstone of our new partnership.

To strengthen policy development, the minister and the Assembly of First Nations commit to undertake discussions: on processes to enhance the involvement of the Assembly of First Nations, mandated by the Chiefs in Assembly, in the development of federal policies which focus on, or have a significant specific impact on the First Nations, particularly policies in the areas of health, lifelong learning, housing, negotiations, economic opportunities, and accountability; and, on the financial and human resources and accountability mechanisms necessary to sustain the proposed enhanced involvement of the Assembly of First Nations in policy development.

The government did not receive the support of the First Nations for the repeal of section 67 of the Canadian Human Rights Act, nor has it received the support of the native women's association for this bill tabled by the member for Portage—Lisgar, as it was introduced without consultation.

Is it unreasonable to believe, in the modern context, that to consult also implies the consideration of at least some recommendations based on cultural values and specific lifestyles?

Subsection 89(1) of the Indian Act exempts personal or real property of a band member located on-reserve from seizure or attachment by a non-Indian or a non-band member.

The provisions of the Indian Act on the rights of surviving spouses to property may be affected by approaches taken to address the issue of on-reserve matrimonial real property, and this would need to be considered.

Is this not good reason to take a closer look at the difficulties encountered in resolving certain situations that may at first appear very straightforward?

It is important to consider the opinions of the people experiencing the problems that need to be resolved or those who are involved in the conflict, in order to examine the necessary corrective action and, as needed, ensure the creation of legislation or regulations.

It seems to me to be a little early—perhaps even much too early—to present such a bill, given that a joint task force was only formed in February 2006 to carefully examine the issue of on-reserve matrimonial property. To pursue this, we would have needed recommendations from both Houses.

The joint task force was set up when the Bloc Québécois demanded that the government consult the Native Women's Association of Canada and the Assembly of First Nations by acting on the following recommendation made by the Senate Committee on Human Rights in its November 2003 report:

—the Committee recommends that appropriate funding be given to national, provincial/territorial and regional Aboriginal women’s associations so that they can undertake thorough consultations with First Nations women on the issue of division of matrimonial property on reserve. These consultations should be the first step in a larger consultation process with First Nations governments and Band councils with a view to finding permanent solutions which would be culturally sensitive—

The joint task force's mandate included drafting joint consultation documents, touring to consult aboriginal communities in Quebec, Canada and the provinces, and reporting aboriginal recommendations with a view to drafting a bill on the division of matrimonial real property and immovables on reserve.

Unless the hon. member for Portage—Lisgar can announce to us that he is withholding privileged information, more complete than that of the native women's association—which says it has not completed its research—we have to consider this bill as an insult to everyone doing research on this file. Accordingly, we have to recommend that this bill be defeated.

We find that through his bill introduced on May 17, 2006, the Conservative member for Portage—Lisgar has demonstrated political opportunism and lack of knowledge of the process already launched by his government. His persistence to achieve this could hinder the democratic process of the joint committee which, for the first time in 30 years, could have or propose a viable solution to an awkward situation for any democratic country. Furthermore, what are people to think when this involves the “very best country in the world”?

This private member's bill is an affront to the Quebec Native Women Inc., which is a major stakeholder in this working group. This ridiculous, thoughtless and disrespectful initiative undermines the credibility of this association's initiative and its chances for success.

This bill prematurely calls on Parliament to take a position at the very moment when the working group recommended by this House has not concluded its research, the results of which are needed in order to improve the living conditions of aboriginals.

The Minister of Indian Affairs and Northern Development Canada has noble intentions: to undertake consultations to find a solution to the issue of matrimonial real property on reserves in order to improve the rights of aboriginal women and provide them with the same legal protection enjoyed by non-aboriginal women with respect to divorce.

It is critical that aboriginal women be consulted with the utmost respect for their culture. To ensure that the consultations are worthwhile, native women's associations in Quebec, Canada and the provinces must be given the funding and the time they need to meet with all of the communities.

Aboriginal women deserve to have all of the information about the subject of the consultations: the Indian Act (matrimonial real property and immovables). It is even more important that the entire aboriginal population be informed of the impact of a law on the division of matrimonial real property on their everyday lives and in the case of separation.

Quebec Native Women Inc. believes that consultations in aboriginal communities require the expertise of family law and legal rights specialists. The officials conducting the consultations must be accompanied by specialists who can answer all of the people's questions.

Governments change with the tide, yet they stay the same. Whether Liberal or Conservative, their vision and their avoidance tactics are similar.

The member for Portage—Lisgar's Bill C-289, which was drafted without any consultation, is not what we need to make change happen now.

In conclusion, I feel it is premature to debate this bill because of the lack of consultation with the affected population and the lack of essential but currently unavailable information, a lack of information that could cause problems that will be even harder to fix than those these various bills seek to correct.

[Brian Jean, Conservative, Parliamentary Secretary to the Minister of Transport]

Mr. Speaker, I appreciate the opportunity to speak to Bill C-289.

I will begin by giving some of my background. For 11 years I litigated in northern Alberta on issues like this, issues dealing with constitutional rights, charter rights and aboriginal rights under the Constitution. I even have family in aboriginal communities spread out across northern Alberta.

I am disturbed about the issue that brings this forward and I have been for some 15 years. I think it is a travesty of justice that there is a gap in the legislation that has not been filled. However, I intend to vote against Bill C-289 for two important reasons.

The first is that it proposes a solution to the issue of on reserve matrimonial real property that is just simply too simplistic.

I have a community in my riding called Janvier. It is an Indian hamlet that is some 30 or 40 kilometres from the Saskatchewan border. On the other side of the border in Saskatchewan, I have a community, which is not in my constituency, called La Loche. Those two communities are connected by culture and by family. However, because there is a border separating the two, they would be under different laws. I do not think that is appropriate in these circumstances.

More important, a collaborative consultation process is currently underway so that the gap in legislation will soon be filled. The government is taking steps to ensure that happens. I believe that will be a superior alternative to this particular motion and, as a result, I must encourage all my colleagues in the House to oppose Bill C-289 for now.

Despite the noble goal at the heart of the proposed legislation, the intention of the legislation is great but the final outcome may not be, and, as a result, I think it is important to consult with the aboriginal communities that it will touch the most.

I respect the mover as well, the member for Portage—Lisgar. He is wise. I have watched him for many years debate in the House. He is very hard-working and I do admire him.

However, as some of my colleagues have explained, on reserve matrimonial real property rights exist in a legal vacuum. This legal loophole in Canada's body of legislation has caused many people to fall victim to abuse, especially, in my opinion, women and children, including homelessness and poverty. I have seen this firsthand, as approximately 20% of my riding is of aboriginal heritage.

The previous debate on the bill made it clear that every member of the House joins me in wishing for an effective and speedy resolution to the issue. Despite this desire, we must not accept this overly simplistic approach that is provided by the bill. We must have a solution that we can all live with, a long term solution, one that solves the problem and reflects the input of those affected, the first nation women and the communities. They must be consulted.

Bill C-289 is not that solution in my opinion. In fact, two aboriginal organizations, the Assembly of First Nations and the Native Women's Association of Canada, have raised concerns with the bill, as many of my colleagues have.

Additionally, when this option was presented to first nations in recent consultations, it was largely rejected as most groups felt that existing provincial laws were inadequate to address their needs, I would suggest in the realm of culture and family connections.

There is no question that the application of provincial law on reserves also requires consultations with the province. I would suggest that needs to be done as well. The provinces, after all, would find themselves responsible for the provision of legal services to residents of first nation communities under provincial law and under programs such as legal aid in Alberta.

The reality is that without the support of key stakeholders, such as aboriginal groups and the provinces, Bill C-289 is not the solution we seek, nor the solution that aboriginal communities and first nation people deserve. With respect, I believe it would simply not work adequately.

Thankfully, the Conservative government has taken action and has nearly completed a consultation process to develop a shared solution to this problem. We want to produce a broad consensus on an effective legislative remedy, not a one-off, but one that works in the long term.

To lead this process, we are fortunate to have a very talented individual, Wendy Grant John, as ministerial representative. Ms. John is a former chief, a successful entrepreneur and a very skilled negotiator. She has agreed to work with all parties to seek a long term consensus on real property. If a consensus cannot be reached, Ms. John will recommend an appropriate course of action.

At the heart of this process has been a series of consultations, which I believe are important and, in most aboriginal negotiations, are mandated by the Supreme Court of Canada. This has been led by aboriginal groups and by Indian and Northern Affairs Canada. While these consultations took several forms, such as in camera sessions, public meetings and written submissions, they have all been guided by the same consultation paper.

The paper was carefully designed to foster focused debate. It outlines three broad legislative options.

Option one would seek the incorporation of provincial and territorial matrimonial real property laws on reserve.

The second option would seek the incorporation of provincial and territorial matrimonial real property laws, combined with a legislative mechanism granting authority to first nations to exercise jurisdiction over matrimonial real property.

The third option would be to involve substantive federal matrimonial real property law combined with the legislative mechanism granting authority to first nations to exercise jurisdiction over matrimonial real property.

All of those options would involve consultation and would involve the consultation process dealing with the culture and values that the aboriginal people have.

This consultation paper also describes the mechanism that a handful of first nations have used to codify on reserve matrimonial property rights. In the 1990s, for example, a group of 14 first nations successfully lobbied the Government of Canada to acquire greater land management powers. Even the election acts of most aboriginals are cultural election acts based on the culture and the practice of the reserve.

The result for this 14 first nations lobbying effort was the First Nations Land Management Act. It was successful. This legislation enables first nations to develop, ratify and enforce land codes, management regimes and regulations governing on reserve and matrimonial real property rights.

Although communities continued to pursue this option, at the present rate it would simply take too long and it would not address this important issue that needs to be dealt with. The time has come to close the legislative gap and, I would suggest, all parties in this House and all members agree with that.

For the benefit of certain first nations' matrimonial rights, it is important to close this gap and to get this solved. To create this type of solution absolutely requires consultation, actively engaging the key stakeholders, the provinces and all aboriginal groups, which is precisely why this government supports this consultative process.

The Assembly of First Nations and the Native Women's Association of Canada have respectively conducted independent regional dialogue sessions and consultations across the country. Officials with Indian and Northern Affairs Canada have held and continue to hold discussions with the provinces and other stakeholders because the best way to get good legislation is by consulting the grassroots. They have also provided funding to other national and regional groups to hold consultations of their own and ensure that all parties are consulted appropriately.

Now that consultations are complete, the final consensus-building phase has begun. The purpose of this phase will be to build consensus on a solution that takes into consideration what Indian and Northern Affairs Canada, the Assembly of First Nations and the Native Women's Association of Canada have heard through their consultations and dialogue sessions.

The task of fashioning a consensus-based solution to on reserve matrimonial property will be both delicate and demanding. The issues will be sensitive and they will demand a profound familiarity, not only with the issues and the culture but also with the viewpoints of all stakeholders.

The legislation before us today calls for unilateral action. It completely ignores many of the concerns already identified by stakeholders.

We must help first nation women and children, and even men, who, without matrimonial property laws, are sometimes left to the whim of chiefs and council members or band members, but we must do it right the first time. We will not have a second chance and this demands our best attention.

[The Deputy Speaker, NDP, Bill Blaikie]

Seeing no other members rising, the hon. member for Portage--Lisgar has the right of reply.

[Brian Pallister, Conservative, Portage—Lisgar, MB]

Mr. Speaker, I thank all members who contributed to this discussion. We seem to have a consensus here that everyone wants to help, but not now.

This April will mark the 25th year since the Charter of Rights and Freedoms came into being. We will mark the silver anniversary of our commitment to principles Canadians cherish: rights to security, personal freedom and equality. Subsection 15(1) of the charter states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race--

Those are genuinely great words, but they do not apply to Canada's aboriginal people who are not equally empowered with the rights that most Canadians take for granted. If we believe the speakers to this bill, then we believe that the aboriginal people should not be empowered now but they should be empowered at some point.

My private member's bill would, on an interim basis, empower them now by putting in place matrimonial property rules that do not exist. That is an important first step to move toward the equality rights that aboriginal women in particular deserve to have and that they have called for in this country for over two decades.

Unfortunately, we need to move forward. The adoption of this bill needs to happen because we have created a jurisdictional ping-pong game for aboriginal people who must endure a marriage breakdown without any prescriptions whatsoever for the division of property. Apart from a very few reserves where there are rules, no one has rules. This bill would fill a legal vacuum that exists which has caused so much suffering, particularly for aboriginal women.

The Indian Act is silent on the issue of matrimonial property rights. This creates a legislative no man's land where no man or woman should have to dwell, a land where the strong and the friends of the strong survive but the weak continue to be oppressed. Certainly I have heard from them, as I believe other members who are concerned with aboriginal issues have as well.

Opposition critics have said in the House that they recognize the problem, just not enough to take action on it. They promote the perpetuation of a process, no doubt followed by further dialogue, followed by focus groups and think tanks and additional consultations, and they frame this as being respectful of aboriginal people. It is not. It is the opposite of that. A failure to take action on such a fundamental issue of human rights under the guise of being respectful of people is actually disrespectful of those very people.

These people have had their rights ignored for a long, long time and they continue to have them ignored by members of the House who should know better. This bill would implement the unanimous recommendations of both the Senate standing committee and the House of Commons committee on native affairs. It provides interim rules until the happy day when the Canadian government or first nations governments take action.

It complements, it does not work in opposition to the government's consultative process. Given the precarious nature of this minority government and of all minority governments, the consultation process the government has under way may or may not lead to legislative action. Every member of the House knows that. In the meantime, we have an opportunity to do something. In the meantime, this bill would demonstrate that the House of Commons is serious about addressing the issue of matrimonial property rights for aboriginal people in a real way.

Let us not be naive. Of course the issue is complex, but our choice here is simple: we either support the status quo or we support change. The status quo has its merits only if we place the never-ending jurisdictional concerns of the Indian affairs department and some chiefs and councils above the needs of aboriginal people, particularly aboriginal women.

I have listened to the opposition members in the House call for immediate emergency action on virtually every aboriginal issue. Water quality, housing, alcohol and drug dependency, education and treaty disputes are all invariably described as emergency situations that require immediate action from the minister and the government. Everything is an emergency, except this, and this can wait.

All of those issues the government has been called upon to act with urgency have one thing in common; they have one great commonality and that is this: they can all be solved by millions or billions of dollars of additional taxpayer funding, and therefore, they are naturally supported by every single chief and council. There is the consensus everybody talks about, but we will not get a consensus on this bill. We will not get a consensus on matrimonial property because some chiefs will always oppose it. Some women will always cry for it and they deserve action from us.

We cannot just throw money at problems. This is an issue that does not require us to throw money. It requires us to give the same rights to aboriginal people that we enjoy and take for granted around this country.

Why is solving the problem of matrimonial property rights so easily put on the back burner? Is it because it is easy to ignore the needs of a minority within a minority? Is it because of the risk of offending the political power brokers on reserves? Is it because on reserve discretionary power will be replaced by the rule of law? Is it because the equality provisions of the Charter of Rights and Freedoms will come into existence on reserves for the very first time?

This bill is a respectful first step to bringing equality to aboriginal people. In April we will mark the 25th anniversary of the Charter of Rights and Freedoms. I think we would really have something to celebrate if we moved forward on matrimonial property rights for aboriginal people--

[The Deputy Speaker, NDP, Bill Blaikie]

Order. I am sorry to interrupt the hon. member, but I did let him go over.

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Deputy Speaker, NDP, Bill Blaikie]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker, NDP, Bill Blaikie]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker, NDP, Bill Blaikie]

In my opinion the nays have it.

I do not see five people rising. I see three. Given that the nays have it has not been successfully challenged, I declare the motion lost.

(Motion negatived)

[The Deputy Speaker, NDP, Bill Blaikie]

We would now proceed to the adjournment debate, but the hon. member for Davenport not being present to raise the matter for which adjournment notice has been given, the notice is deemed withdrawn.

It being 7:07 p.m., this House stands adjourned until tomorrow at 2 p.m. pursuant to Standing Order 24(1).

(The House adjourned at 7:07 p.m.)