Bill C-47 (Historical)

Family Homes on Reserves and Matrimonial Interests or Rights Act

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

This enactment provides for the adoption of First Nation laws and the establishment of provisional rules and procedures that apply during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on First Nation reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on those reserves.

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I would like to congratulate the member for Laval for her speech on Bill C-47. I am a bit surprised. I do not believe that aboriginal women are supporting this bill, even though it concerns family homes situated on first nation reserves and matrimonial rights to or interests in structures and lands situated on those reserves.

Why does the member for Laval think that the Conservative government introduced a bill that concerns the rights of aboriginal women, even though these women do not support this bill?

[Nicole Demers, Bloc, Laval, QC]

Mr. Speaker, my colleague is quite right, and I in fact said in my remarks that native women are not in favour of this bill because they were not adequately consulted and because their recommendations were not taken into account. That is what I said. I also said that this was why we want to send the bill back to committee.

They want something that incorporates matrimonial rights, something done properly, which is of real use and beneficial to them. However, they do not want the bill as put forward. They want it amended to reflect the recommendations they made and the needs they expressed during consultations, although the consultations were inadequate.

For this reason, we will vote to send the bill to committee and not because we support it at the moment. In fact, we oppose it.

My colleague is right that the women are dismissing it out of hand and do not agree with it, as it fails to meet their expressed needs.

[James Moore, Conservative, Parliamentary Secretary to the Minister of Public Works and Government Services and for the Pacific Gateway and the Vancouver-Whistler Olympics]

Mr. Speaker, my question concerns what my colleague from the Bloc said a number of times in her remarks and answers the question by my Liberal Party colleague for Etobicoke North as well. She said simply that the studies done on the matter were inadequate because they lasted no more than three or four months. That is not the case. I was elected in 2000. I know that that parliament and preceding ones thoroughly examined the matter on a number of occasions. It has been examined under both the federal government and our Conservative government a number of times.

Why does the member want still more studies, when the matter has already been examined a number of times? The matter of equality for women in each region of the country is very important. All Canadian women, including native women and indeed everyone should be governed by the same laws and enjoy the same protections. In this country, we must have equality before the law.

Why wait further to act? The question is a simple one. Why should we wait? If the hon. member supports the spirit of equality, if she acknowledges that all women in our country should be equal before the law, can she tell us why we should wait before acting?

[Nicole Demers, Bloc, Laval, QC]

Mr. Speaker, I really like that question from my colleague. Of course I am in favour of equality—equality of rights, but also equality in fact. This bill in no way brings us closer to equality in fact.

In addition, as I pointed out earlier, the realities are very different from one aboriginal community to another. There are 600 different aboriginal communities in Canada, and the realities of the different aboriginal communities must be taken into account. All those communities do not need the same bill. Some of them have procedures that enable them to work effectively in the case of separation or divorce, and even where there is violence.

To achieve real equality it is essential that this government begin by actually recognizing the fundamental rights of aboriginals by agreeing to sign the United Nations Declaration on the Rights of Indigenous Peoples.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I congratulate the member for her very passionate and eloquent speech, raising her concerns.

First, does she actually think the government has listened to those concerns and will deal with them?

Second, she mentioned how, for thousands of years, first nations have very ably governed themselves and that now we are trying to impose something on them. Because of that, one of the groups has suggested that it may not be constitutional. Does she think that is a concern in this case?

[Nicole Demers, Bloc, Laval, QC]

Mr. Speaker, one of the chief concerns of aboriginal communities stems from the fact that the government does not take into consideration their timetable, their needs or their rights. The government takes nothing into consideration. On numerous occasions, we have seen the lack of tact and the lack of judgment of this government.

This government has already broken its promise to seniors with respect to the guaranteed income supplement. It broke its promise to women; we do not have equality, whether my colleague likes it or not. It has also broken its promise to veterans. The government broke its promise three times—and those are only three examples.

They would like us to believe that this bill will resolve the situation of aboriginal people, that all will be well and there will be no more problems. That is nonsense; I do not believe it.

So long as the bill is not properly amended to respond to the needs and demands of the women who made their recommendations to us, we will not pass it. Whether my Conservative colleagues like it or not, we are going to wait.

We must not forget that aboriginals have real rights. They were here before we arrived. The Bloc Québécois often talks about sovereignty. If anyone is sovereign here, it is the aboriginal people. They are the very people who should have precedence in terms of rights, respect and dignity.

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, it is a pleasure to speak to Bill C-47, the Family Homes on Reserves and Matrimonial Interests or Rights Act. On the surface, all of us are absolutely, positively desirous of ensuring that aboriginal women and men have equal rights under the law, like non-aboriginal women and men, and that there is one set of rights, rules and regulations so that everyone has the same rights and rules and everyone is protected under our courts.

This pertains to the issue of those women and men who are in situations where their families are affected by issues and tragedies that compel them to need legal protection and a structure wherein they can deal with the division of assets in family breakups or when a spouse dies.

The fact that we are here speaking to this bill alludes to a much larger problem in that we have an issue of separate development in Canada. Somehow we are trying to tag on a series of rules, regulations and acts to ensure that in this case aboriginal women have some protection and security under the law. But that deals with a much larger issue of a separate development that has occurred in our country between aboriginal and non-aboriginal people. In part that is responsible for the terrible social discord and horrible social circumstances that affect too many aboriginal and non-aboriginal people on and off reserve.

There are some concerns about the bill, but we support sending the bill to committee. The Liberal Party will be calling upon witnesses and representatives of aboriginal women in Canada to ensure that their voices are heard because they have a lot of concerns about this. The Native Women's Association of Canada does not support Bill C-47 in its current form for many reasons. An example is the complete lack of information about the implementation plans and measures for this legislation including timeframes, resources for measures that are specified in the bill, and resources for first nations to implement the legislation.

There is a lack of information regarding the provision of resources to first nations to enable them to develop their own laws for the MRP. Another issue is that a widowed spouse only has 180 days to remain in a family home following the death of his or her partner. It is perfectly understandable why NWAC believes that is too short a period of time to allow a person to live in his or her own home when such a tragedy has befallen him or her. There is a lack of adequate and appropriate housing in many first nations communities. This has been mentioned multiple times in this House. The measures contained in Bill C-47 will not assist women and children in obtaining alternate housing in the community during the breakdown of a marriage or common law relationship.

I cannot impress enough on members the degree of tragedy and the horrible living conditions found on too many reserves. I worked as a physician in northern British Columbia and I remember flying into reserves. The houses are so poorly built that people are living in homes that are essentially a health hazard. They are boxes of disease. To see this level of housing in Canada is absolutely appalling. If there is a breakup in a relationship, particularly in smaller communities where there is already an acute lack of housing and the housing that is available is unsafe and frankly toxic, where would the person go? Where would the spouse and children go in that kind of an environment? There is no other housing locally. Would they go to an urban centre? Would they go off reserve? The choices for them are quite bleak. That is one of the central problems of this piece of legislation.

We support sending the bill to committee but we would like to ensure that these issues are dealt with. I personally hope that this galvanizes the government to deal with the horrible health and socio-economic conditions on reserves, including the housing on reserves.

One example from my riding would be the Pacheedaht reserve. It is near Port Renfrew on the west coast of Vancouver Island. I was there several days ago. The roads on the reserve are pock-marked and full of holes. None of them are paved. There is detritus and refuse everywhere on the reserve. Why? Because the band does not have any agreement to remove the waste on the reserve. It does not have the money nor the people to do it. As a result, there is waste everywhere.

There are homes with the windowpanes smashed out. The windowpanes are not replaced because people do not have the money to replace them, so they cover the windows with plastic sheeting. What would it be like in the dead of winter in Canada to live in a house where the windowpanes have been smashed out and the windows are covered with plastic sheeting? What does it mean for the health of the people who live in that house? What does it mean for the children who have to live in those horrible conditions, huddled under blankets to try to keep warm, because the whole house has actually broken apart?

Inside the houses people have put plywood over the flooring so people do not fall through the floorboards. That is the way many of these houses are made. In the corners, around the windows and on the walls there is mould, which is toxic.

There are buildings that have been improperly built. In addition, there is the mould which is toxic. These are unsafe structures. Children, men and women live in these structures. Is that the Canada we know? That is the Canada we have. That is the trauma many aboriginal people are living in right now. Those are horrible third world conditions.

The minister has brought up some very important and legitimate concerns about the issue of housing in that money is given to communities, houses are built, often improperly, and the money goes to waste in too many cases. Why? There is an essential problem of capacity. The government has given reserves and aboriginal leaders money. The government has also given them the responsibility to take care of various things, including some of the social services, housing and health care. However, what if they do not have the capacity to execute those areas for their people? We have set up many communities for failure.

It is all right not to have the capacity to implement something, but if we give them the responsibility for such things as health care, housing and social services, it is very important to ensure that the aboriginal communities can build the capacity within their communities so they can take care of these areas. That is not happening. As a result, we are setting up these communities for failure. That is absolutely immoral. They can never get out of this rut if they do not have the capacity to implement these things and make them operational.

I was very happy that the minister today spoke about the fact that he has asked Chief Clarence Louie, who is a success story with the Osoyoos Band, to teach other aboriginal communities what they can do to ensure that they have sustainable development in their communities.

Right now there is often a huge chasm between capabilities and resources and the desire to implement what it is they want. The difference between desire and the plans they want to implement and the capacity to implement those plans is quite broad. INAC must ensure that it actually engages with aboriginal communities to give them the capacity building that they desperately require.

Another few examples are in Esquimalt. We have the Esquimalt Nation as well as the Beecher Bay Nation in Beecher Bay in my riding. Both have fantastic leadership. Chief Russell Chipps is the head of Beecher Bay. They are trying very hard to build up their communities, but they hit a huge wall at INAC. Today the minister said that he will try to streamline the process. He will find cross-party support in enabling the Department of Indian Affairs to be more efficient at addressing and working with aboriginal communities to ensure that they have the tools and resources to do the job.

There is $9.2 billion spent through the Department of Indian Affairs every year. Tragically only a trickle of that money gets to the people who need it the most. There is a claim that $1.5 billion is spent on administration.

I do not know how we can account for the fact that the per capita income for aboriginal people in Canada is $13,500 a year. That means half the people earn more than that amount and half the people earn less than that amount. How on earth can someone survive in Canada on $13,500 a year? A person cannot. We have created in many ways a case of institutional penury. Part of the reason is that the institutional structures, as well-meaning as they have been, have been set up for failure.

As one first nations chief said, the reserve system was never meant to work. It says a lot when that comes from a first nations chief. It expresses the deep frustration of aboriginal leaders and aboriginal people across our country. The most heartbreaking thing to see is the lack of hope. There have been some extraordinary success stories. There are aboriginal communities that are doing a wonderful job, that are being incredibly dynamic and are working by their people for their people. They are showcases that ought to be held up for other communities across the country. However, there are other communities that we need to consider.

There are small communities in areas of our country where there is no hope whatsoever of developing a sustainable environment. The people who live there must have the opportunity to ensure that their children are educated, that they as adults have the skill sets, so that they can go wherever they want to for periods of time to work at a job and generate the funds that they require. It is hard to be part of a 21st century economy when people's skill sets do not match. It is hard to be part of that economy if three-quarters of the children are not going to graduate from high school.

One of the great challenges that I have seen in too many cases is that the children have to travel vast distances, sometimes three hours a day, to attend school. How can children participate in the extracurricular activities, study and do their homework when they get home if they are travelling three hours a day? The children on the Pacheedaht reserve have to travel three hours a day to and from school. It is no wonder that the dropout rate there is astronomical. If we were living in the same conditions, the same thing would happen. We would not have the endurance needed to travel three hours a day to and from school and be able to think when we got home.

There is the other issue about nutrition. As a physician, often I have seen that the ability to access nutritional food is very limited. The costs are prohibitive. Again, I go back to the fact that half of first nations people in Canada earn less than $13,500 a year. How can they afford to buy the fruit and vegetables and meat that is required for a balanced diet? As a result, we see malnutrition and terrible health conditions in some of the more remote communities.

I also want to deal with the issue of fetal alcohol syndrome and fetal alcohol effects. It is in epidemic proportions among aboriginal people on and off reserve. It is the leading cause of preventable brain damage from birth in Canada. It is something that has received short shrift. More than half of the people in jail have fetal alcohol syndrome or fetal alcohol effects. The average IQ is 70. The tragedy is that this is an entirely preventable problem.

Fetal alcohol syndrome is the leading preventable cause of brain damage at birth and we need more than just posters on clinic walls. We need a series of engagements through our medical community.

I want to propose something that was in a private member's bill that was quite controversial but received two responses. One response was from those who deal with rights issues and they said that I was violating women's rights. The other was from those who took care of children with fetal alcohol syndrome and they said, “Thank God you have done this. Thank you for bringing this bill forward”.

The bill said that if a woman was pregnant, had chosen to take her fetus to term, was willingly and knowingly taking substances that were injurious to the fetus and had refused all help, two physicians could actually put that woman, against her will, into a medical facility for treatment. I know it is harsh but I have dealt with this clinically.

I have had 15-year-olds tell me to take a hike when I have begged and pleaded with them to take the treatment I was offering while they were pregnant. When I asked one 15-year-old patient what she would do if her baby had fetal alcohol syndrome, she responded by saying that if it were cute, she would keep it, but if it were not, she would give it up. That is the reality. That is the harsh situation on the ground. While nobody wants to trample on anybody's rights, it is fundamentally important, I would suggest, that we take a pragmatic approach to this.

We have the same parallel for adults. Two physicians can put people in treatment in a hospital against their will if they are a danger to themselves, to other people or are unable to take care of themselves. If a person meets those criteria, physicians in Canada can sign a legal form and put those individuals in a treatment facility against their wishes. Why do we not apply the same thing for a pregnant woman who deserve all the sympathy and compassion that we deserve?

The hard, cold fact of the matter is that a child does not deserve to be born with an IQ of 70 if that baby boy or girl can have a chance of being born with a normal IQ. Life is tough enough as it stands to have a normal IQ and be able to navigate the shoals of life as they come toward us. Is it not cruel to saddle a child with irreversible brain damage, damage that never had to occur, and committing him or her to a life that can truly be horrific?

I know that is controversial and difficult but it may be something that the government might want to propose in the House. We should have that debate and bring fetal alcohol syndrome to the forefront. We should try to find the best minds in our country and the best ideas internationally and apply them to this hidden crisis.

Fetal alcohol syndrome affects many people but is largely unknown because fetal alcohol syndrome or fetal alcohol effects in someone is not immediately evident to anybody else. They do not come with a stamp on their foreheads that say they have FAS or FAE. The signs are subtle and often clinically difficult to pick up but the impact upon the lives of those people is so profound, so significant and have so many negative implications that I cannot overstate the matter.

I was a correctional officer years ago and all one needs to do is go to the jails and speak to psychologists to see the number of people incarcerated who have this. The proof in the pudding is that the chances of an aboriginal male being incarcerated is 11 times higher than an non-aboriginal male. Another shocker is that the chances of an aboriginal female going to jail are a staggering 250 times greater than that of a non-aboriginal woman. Can anyone imagine that? That is a social catastrophe.

I think the government would find a willingness from all parts of the House to work with the best minds, the aboriginal communities, the aboriginal leaders and those in first nations communities who know and have solutions that will address these pressing social problems. I would plead with the government to do that as soon as possible.

[Denise Savoie, NDP, Victoria, BC]

Mr. Speaker, a few weeks ago, I met with about 25 first nations students who were doing their post-secondary studies. I talked with them about some of the issues they had faced in getting there. Some of the issues were very similar to many other Canadian students, such as the financial burden of a huge student debt. However, they did mention something very specific, which was the need for a model through a mentorship program that many of them were exposed to.

It is interesting that many of the students who spoke with me were themselves mentoring their younger brothers, sisters or cousins. Most of the students told me that the program needed more resources. In many cases, they felt overwhelmed by the issues that they were asked to deal with through the mentorship program.

One of the recommendations that the human resources committee made through the employability study that we were conducting over the past couple of years was to build that capacity through mentorship programs. I am wondering if the hon. member would comment on how that kind of mentorship could be expanded and improved with the understanding that he brings to these issues. How can we support those young people who are themselves now in a position to provide mentorship to their brothers and sisters?

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I know my colleague from Victoria has a lot of interest and knowledge in social issues and works very hard on these issues back home and across the country.

Her comments are well taken. As I mentioned earlier, the Native Women's Association of Canada expressed the very concern that the member from Victoria is expressing, which is that there are not enough resources at the grassroots levels to do these incredible initiatives that are coming up by aboriginal people for aboriginal people.

What INAC needs to do is to facilitate the resources and get on the ground to support those grassroots NGOs and grassroots initiatives that can accomplish just that.

Earlier today, in questions and comments on a previous bill dealing with first nations issues, the minister said that, on the economic side, he was trying to do that with respect to economic development. Maybe what we need to do is identify some best practices in aboriginal communities across the country and share those best practices across the land so that a mentoring program that is working well in British Columbia can be shared with a mentoring program for communities in Ontario, Newfoundland and other parts of our country.

It is critically important that this happens. I have always been a fan of where, in this case, first nations community groups that are doing some extraordinary work, that those jewels, those areas of success should be shared and that those people who are doing the work should have the resources to go across the country and share their expertise with other communities.

I think that would be something that the minister and the Department of Indian and Northern Affairs should champion forthwith.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I thank my colleague for his fine remarks on Bill C-47 and for outlining the realities faced by many native people across this country.

The bill is entitled, “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”.

We have said in this House that we support the intent of the bill going to the committee because there are some issues that are valuable in the bill and it does deals with some of the concerns that have arisen since the 1986 Supreme Court ruling which basically stated that the courts could not apply provincial-territorial family law because reserve lands fall under federal jurisdictions.

At the same time, even though we support the intent of the bill and we understand that there are incredible matters of human rights and rights of women and children living on reserves that need to be addressed, I take note, and my hon. colleague has already stated that he takes note as well, that the Native Women's Association of Canada, in its March 4 press release, stated:

There is nothing in the legislation that addresses the systemic issues of violence many women face that lead to the dissolution of marriages nor is there any money available for implementation. In the end, we end up with a more worthless piece of paper.

That was said by Bev Jacobs, the president of the Native Women's Association of Canada. She criticizes the legislation because it fails to address some of these issues.

As I said, I support the intent of the legislation and there is some value to studying the legislation, but it is somewhat inadequate in addressing all those realities and all those issues.

Perhaps my hon. colleague could answer some of those questions that were raised.

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I know my colleague from Davenport has been an ardent worker on an array of social issues in his riding of Davenport, as well as across the country.

The cruel aspect of this bill and something that absolutely needs to be addressed in committee is what to do with the acute housing shortage that exists. If a family breaks up, the woman and the children need to go somewhere but the question is, where. Because of the toxic situation of homes on reserves, the lack of absolute numbers and the lack of quality, this poses an extraordinary problem, a problem that has not been addressed and which can be brought to light through this bill and, in so doing, would enable us, I hope, to get the best ideas possible to deal with the housing situation.

I know the minister raised a very good concern, one he and other aboriginal leaders across the country have, which is where the moneys that are going in are going.

Also, however, there is a lack of resources going into housing and the housing that is built is often not of the quality it should be. Some of the unscrupulous individuals who are building substandard housing in Canada should, frankly, be put through the court system and tried for fraud because they are ripping off aboriginal communities and taking money away from those people who can least afford it. They are leaving them with horrific situations and horrific financial conditions that they cannot get out from under.

The third thing is that where housing is being built, there should be a mandatory provision for capacity building within first nations communities. There should be an obligation on a contractor who is doing work in the community to build capacity within and among the aboriginal members of that community. I think that would go a long way to addressing some of the conditions we see and building up the long term capacity that is desperately needed in first nations communities.

[Rod Bruinooge, Conservative, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Mr. Speaker, I did hear the member opposite make a number of interventions on aboriginal issues. He did speak to the bill, as well, but he raised a number of other issues which I agree do exist within first nations throughout our country.

However, it seemed that he was also latching on to an argument that has been posed by other members, that, in light of the fact there are these other issues that do exist, perhaps that should be used as an argument against supporting this bill. I would like to ask him whether he is using that flawed logic as well.

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, as they say, carpe diem, seize the day.

This is an opportunity for us to use the bill, to seize the day, to deal with issues such as aboriginal housing, aboriginal health, access to education, governance structures, environmental conditions on and off reserve.

I say off reserve too, because we know a the large number of aboriginal people living off reserve are excluded. Frankly, they only receive about 3.5% of the moneys through the Department of Indian Affairs and Northern Development. They are left bereft, but their needs are as great as those living on reserve.

This is an opportunity for the government to seize the day, take initiatives, tap into the finest ideas of our land and deal with these issues now.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I am delighted to follow the member, my colleague from Esquimalt—Juan de Fuca. He has used the phrase carpe diem. I want to use the phrase fidelitas in arduis, which is Latin for strength and determination in adversity.

My friend from Esquimalt—Juan de Fuca will be the only person in the House who knows what I am talking about. That is actually the motto of our high school. This past weekend he and I attended the 50th anniversary dinner for Neil McNeil High School in Toronto. This is not the subject of my intervention, but I wanted to mention that.

We are dealing with a statute that will be making a major change in the legislative foundation law that governs our first nations. While one can see the reason why the House and the government are dealing with the legislation, one also has to acknowledge that we would rather, as a Parliament, not have to legislate for our first nations. The best of all possible worlds would be that our first nations would themselves be in a position continually to deal with the personal law matters of their members on their reserves.

Throughout the wide breadth of the country, that is in fact the case. The tribal councils on all the reserves handle pretty well most of the daily needs, legally, of the reserve, albeit under the infrastructure of the century old Indian Act, which they complain, and which most members of Parliament will agree, is a bit too old and decrepit as a statute to govern the modern circumstance.

Approximately eight or nine years ago, I recall three or four separate major pieces of legislation were proposed to the House, which were very controversial. While some of the first nations across the country supported those bills, many did not. Many also regarded those statutory proposals as unwarranted interventions by Parliament in the first nations sphere of activity.

The problem Parliament and government has is that government has a constitutional obligation to manage or oversee what is called Indian affairs. It also has the contractual obligations of treaties and has ongoing societal development issues on the reserves involving our first nations. It is very difficult to do that under the auspices of a statute that is 100 years old.

It needs to be modernized. Therefore, if we all agreed on that, I suppose we would then move into the phase of developing modern laws for our first nations, ones that they have wanted. The difficulty is that there is not one first nation. Our first nations are as diverse as the rest of the world is. Each reserve, each tribe, each grouping has local traditions and languages. Therefore, it is very difficult for one Parliament, one legislature, to somehow embrace the whole scope of first nations activity and social development and come up with one set of laws that will govern.

I wanted to get that on the record because any member who speaks in here on these statutes I am sure will want to recognize the complexity of this and why we feel that government is compelled to do this at this point in history. We want to try to do it as best we can, but realize that at the end of the day, we expect and want our first nations to step up to the plate, wherever they can, and manage these issues.

The statute under consideration deals with matrimonial breakup, matrimonial property, domestic breakup, domestic property and also what happens in an estate at the time of death.

Up to now each first nation may have its own way of handling these things. For those who do not or do not do it effectively, there is the Department of Indian Affairs and Northern Development. A lot of the people working there now are first nations peoples, but over history most of them were not. This resulted in the unsatisfactory circumstance of an administration attempting to administer laws and impose rules and regulate affairs on our reserves, when they might have been hundreds and thousands of miles apart and divided by culture and by language, which was very unsatisfactory.

The proposed statute realizes the significant need among our first nations for some clarity, to fill voids in the law. Most Canadians know they have access to laws that govern the breakup of a marriage or govern an estate at the time of a death. This is not the case with every first nation because provincial laws do not govern first nations. I suppose individuals on a reserve could voluntarily subscribe to those laws if they wished to enter into settlements, but those laws do not bind our first nations. The deal that the white man cut with our first nations centuries ago and in treaties was that our first nations people manage those things themselves.

Our Charter of Rights and Freedoms is supposed to be there for all Canadians. We are now finding that our legal infrastructure, in some cases, is not accessible by first nations on reserves. If the statute passes, I would like to think our first nations peoples will accept it as a reasonable attempt by Parliament, as a whole, to offer them a legal infrastructure that will allow for some regularization and to fill some of their needs.

There needs to be some consistency across the country and if not across the country, at least within a province. What happens in a family breakup on a reserve can be roughly consistent with what happens in a breakup elsewhere. If two people cannot solve the problem themselves, they have to go to a decision-maker. Who is the decision-maker? What rules will he or she use to decide on this? There has to be clarity and consistency. We have to fill the void. We are a country that thrives and relies on rule of law. We cannot have voids in our law and places in the country where there is the application of discretion, unregulated discretion, arbitrary decisions, or unfair decisions.

The best to expect would be that each couple involved, whether in a breakup or a death, would settle it without a dispute. That happens a percentage of the time, but a lot of the time it does not. We realize that.

Then the next best thing we could have is it could be settled on a first nation reserve, using the rules the first nation itself normally uses, rules that the first nations members themselves have embraced, accepted and are used to applying. That is probably a pretty good arrangement and one that would be consistent with our history and our rule of law, which includes the Constitution-based first nations entitlements.

However, we still may have the problem of inconsistency. If the rules on a particular reserve say that the chief makes the decision, the chief may make a decision that is conspicuously out of keeping with decisions made on other reserves or, for that matter, elsewhere in the province in question.

The statute deals with the family home and then with other matrimonial property. The matrimonial home is dealt with one way and that is how it is handled in most of our provinces, if not all now. The matrimonial property, the money, the heirlooms, the hand-me-downs, are handled separately from the family home.

The proposed law itself begins by setting out some basic definitions. While to the layman, they will read as a very complex thing, what it actually tries to do is encourage first nations to adopt their own rules and laws. If first nations do that, this proposed statute will enable them and assist them to do it. In so doing, it imposes a regime of verification, which is really Parliament's attempt to ensure that when the first nations develop these codification of laws governing these issues, that they are in the ballpark and compliant with our charter and with prevailing norms in terms of matrimonial settlements.

We all realize there has to be some flexibility. As much as in theory, a first nations chief might have the ability to pick between two sometime common law spouses. At the end of the day, it will not be fair if those decisions are made and are way out of keeping with prevailing legal norms. All citizens of Canada, including members of first nations, are entitled to the benefits of the charter, which includes rule of law, some certainly and fairness as to how their lives are sorted out when there is a dispute like this.

Clause 7 of the statute sets out a mechanism that allows for the first nations to write some of their own laws and rules. It is noteworthy that in so doing, Parliament in this statute so far, and I have not sensed a will to change it, has decided that the delegation of that ability to make rules, which from a Canadian statutory point, is a delegation to the first nation. However, under first nations perspective, they might not see it as a delegation at all. First nations might say, no, that it is their right to make these laws, that we cannot delegate anything to them that they do not already have the right to do as first nations because the white man and the Queen said that they could do it that way 100 or 150 years ago, or whenever it was.

In the statutes it is described as a kind of a delegation of law making authority, but it also says that this delegation of law making authority is not a statutory instrument. It is not a statutory instrument that would fall under the normal delegation of rule making powers that we often use around here.

If Parliament delegates the authority to a minister to make regulations, those regulations are scrutinized by Parliament and our courts of law. In this statute, when we delegate our way to the first nations, those are not statutory instruments and they will not be scrutinized or treated as statutory instruments.

My own tendency, as a legislator, is to say no, we better not delegate anything without the ability to scrutinize and check it. At the end of the day, out of respect for our first nations, we do this. We say they have the rule making authority and we are not going to oversee and scrutinize it like we do all of our other legislation. We respect their right and need to make those rules and laws. We will help them do it with the verification process, but we are not going to interpose and tell them how to do everything and scrutinize the way we do our other laws.

I want to reference an existing problem included in this. Most members will not be aware that there have been two reports presented to this House from the Standing Joint Committee for Scrutiny of Regulations that reported to the House serious problems with the Indian estates regulations.

As l pointed out, this bill covers the breakdown of a marriage in death, but what happens to the property? Prior to this, under the Indian Act, the government had already encountered problems in dealing with matrimonial property and general property on the death of a first nations member. In most cases, it was pretty clear and members of the first nation knew exactly what was to happen when the individual passed away. But in the modern world with all the changes going on things began to go a bit askew.

I will give an example where a male would get married and maybe the marriage would last for a couple of years and then he would take a common-law wife after that. Perhaps he and the common-law spouse would live together for 20 years and the old marriage was way in the past, but still in existence. Let us say the individual were to pass away. Who, in law, would the spouse be who would be entitled to take the property of the diseased male? And it can work the other way too. But it was very unclear, if the local chief or tribal council did not have that organized, and it was really complicated as to who was going to get the property.

Under the Indian Act, where there was some power to do this, the government decided to adopt regulations. The regulations permitted the minister to make the decision about which spouse and which set of kids inherited the property of the deceased first nations member. Wherever there was a big problem, it seemed to work except for one thing. The government actually never had the power in law to make those regulations.

So, those regulations have been impugned and while we have not struck them down, there are many decisions of ministers deciding to entitle group A and not group B, when group B may have actually had the legal entitlement. There are unresolved cases out there and I give credit to the aboriginal community and the people involved in those matters for acceding to the purported use of power by the Indian Act administration.

This act, unfortunately, does not resolve those regulations. We asked the government to include in this bill a provision that would settle and say that all those old decisions are legal and binding. The government did not take that advice. That provision is not included in here, so there are still some issues outstanding in theory.

Having put that on the record, I will stop there.

The House resumed consideration of the motion that Bill C-47, 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, be read the second time and referred to a committee.