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 listened very intently to the remarks of my colleague from Scarborough—Rouge River. I can imagine that there are not that many aboriginal or first nations people in his riding as there are not in my riding either of Etobicoke North. I was quite impressed with his knowledge of the landscape of this particular bill.

I have been following the debate on the bill and I think it is a very important piece of legislation. I am surprised that a bill dealing with matrimonial interests and rights does not seem to have the support of aboriginal women in Canada nor does it seem to have the support of the Assembly of First Nations. I find that rather shocking and perhaps if the bill goes to committee there will be ways to improve and enhance the bill.

However, I am surprised that the Conservative government would table a bill that does not seem to even remotely have the support of some of the key stakeholders that would be involved.

I know that my colleague from Scarborough—Rouge River is a very accomplished lawyer. I wonder if he could expand on some of the jurisdictional issues that he touched on and that I have become aware of in following this bill and the debate that is going on.

It is my understanding that the Supreme Court in 1986 ruled that when a conjugal relationship breaks down on reserve, the courts cannot apply provincial and territorial family law because reserve lands fall under federal jurisdiction. So, although on the face of it that seems fairly straightforward, I wonder if the member for Scarborough—Rouge River would speak about some of the constitutionalities of those issues.

These provisions, which I gather if this legislation would come into force, would be an interim measure and would be a bridging measure that would suffice until the various first nations communities brought in their own laws. Indeed, we have been moving toward self-governance among the aboriginal people of Canada.

Currently, how are these problems resolved in the absence of this legislative framework and how does he see it moving in transition from this legislation to a world where there is more self-governance within the aboriginal communities?

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

Mr. Speaker, my feeling is that while we might look upon this proposed statute as a bridge, allowing time for aboriginal communities or first nations communities to actually enact the rules they want in their various communities, it is probably a fact that they will not all get around to it over time. In the absence of really clear, enforceable rules among the first nations, we have problems of lack of clarity and inconsistency, and we have charter problems.

I like what the bill offers in terms of saying to first nations, “Take this and run with it and we will help you do it”. However, for those who never get around to it, the provisions in the bill will govern. I can understand why aboriginal women's groups might be cautious about this. In a sense I am guessing because I have not met with any in the last little while.

However, if there is an aboriginal female on reserve and she looks at the tribal council and she looks at all the guys running the show, she might not feel that comfortable having these guys make up a bunch of rules. A lot of the women might prefer the legislative template and infrastructure that exists in the provinces.

However, women do not have access to those. Also, provincial legislation and federal legislation is not in any way nuanced to deal with the circumstances of the first nations women. They have their own history and culture.

This law has been developed, using current existing legislative norms and matrimonial law norms from across the country. Those women may say that it is great for us in urban Canada, but they have their own thing. This bill does not hit the nail on the head and they need more time, or something. I have respect for that.

On the constitutional side, we are making the best of a very complex basket weave situation here where the provinces just do not, because of our constitutional history, have any jurisdiction involving these matters on reserves. It might be a lot simpler if they did, but if that were to be the case, we would have to have the first nations on the reserve fully plugged into an accountable legislature, and electing people to the legislature. We just have not developed that yet.

I am not sure what the first nations want in that regard, but I sure do not want to propose something that they do not want. What they have now is what they have, and I would like to have members of Parliament work with them and help them develop what they want. However, in the interim, we have this one size fits all with an opt out for first nations who want to customize their own lives in this regard.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, one of the major criticisms that the first nations have, and the women's groups in particular, has been that there is no provision in the legislation for funding for the transition that will be required. I wonder if my colleague could comment on that and whether his party would be prepared to oppose the bill until we see that kind of relationship established.

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

Mr. Speaker, that is really a cogent question. I cannot speak for my party, but most of us could endorse a concept of federal assistance with funding to assist the first nations to develop.

I do not think we would put an actual amount in the bill, and if we do not put an actual amount in the bill, then we would have the question of how much and then it is sort of left with the government. I do not think I would want to oppose a provision in the bill that put on the government a statutory obligation in some fashion, either firm or flexible or something in between, to assist financially in the development of the transition as requested by the first nations women.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I think the next speaker on the list might be interested in the answer to this too. I would like to ask the member if he thinks the government supports this bill. As of this afternoon, we have had a whole day of debate and the government has not had a member speak on the bill. The minister of course supports it as it is his bill. He introduced it.

However, every problem has raised a number of issues. The normal procedure would be that the government would say, “Yes, but here is the answer to those issues, and yes, we still support the bill”. We have no indication of that at this moment. I would like the member to comment on the policy making process.

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

Mr. Speaker, the member has spotted what might be interpreted as an apparent lack of interest on the part of the government in passing the bill, but there was a time when the member and I sat on that side of the House, on the government side, and there are occasions when a government believes the bill is perfect in every way and does not believe it is necessary to put up members to speak and delay the passage of the bill.

The opposition often takes a slightly different perspective on it and, for all kinds of reasons, wants to make constructive comment on the bill. I have tried to do that here today. I know the next speaker will do the same.

I should point out that earlier today we actually did get another bill passed in this same first nations envelope, so the government is probably feeling fairly good about that.

[The Acting Speaker, Conservative, Andrew Scheer]

It being 5:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

The House resumed from May 13 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.

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

Mr. Speaker, I am very pleased to speak to Bill C-47, the act respecting family homes situated on first nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves.

Some people who were speaking to this yesterday brought a lot of dimension to the very difficult situation that exists on first nations reserves. This legislation is necessary because at the moment there is no legislation to which people can turn when there is a need for matrimonial real property laws. This is also an issue of human rights for women and children who live on reserve. Really, it is a human rights issue for the families.

The Liberal Party is certainly a great supporter of the Canadian Charter of Rights and Freedoms and we do support this measure to extend matrimonial real property rights to first nations. While the Liberal opposition supports the intent of the bill, we do not support the unilateral process taken by the federal government to introduce this piece of legislation.

I am going to speak more on matters of governance and capacity building, also in support of why we would like the federal Conservative government to listen to the people and take the road of real partnership and consultation. What we have been trying to say for the last two years as members of the aboriginal community, members of the aboriginal affairs committee and our party is that if we want to see real solutions in our aboriginal communities, there has to be real partnership and collaboration, and that they not be token gestures.

For me, real partnership is going to be based on respect, collaboration, courtesy and compromise. The negotiations would be on the level of diplomacy that I think most of our communities are very good at. All our aboriginal communities are interested in seeing their communities move forward to being healthier and safer for everyone who lives in those communities, whether they are on reserve or off reserve. These are our homes, our lands and areas of great historical connection. These are communities in which we are going to continue to live.

Of course we want to look for solutions that will see healthier communities able to take care of their own and offer solutions. In order to take steps that will move our communities forward, we need to also look at the governance issues. We need to give people an opportunity to be part of the solution, and to offer solutions to issues that are coming before us, in particular for reserves that have been under the rule of a 130-year-old law, the Indian Act.

We know that none of the solutions is going to be quick. History has a way of coming back and making it very difficult for our people to move forward, especially with people who have lived under the Indian Act.

We were reassured when the government came into power and sought the advice of the aboriginal community, especially by appointing Wendy Grant-John to engage in consultations with the people. NWAC was involved. The aboriginal communities were involved. She came back with a report that many people were comfortable with as the basis from which some legislation would come forth. I am sad to say that none of that seems to have made it into Bill C-47.

NWAC and the AFN have put out press releases giving their opinions on Bill C-47, and they have not been complimentary. They feel that all the work they did in helping with the consultation was not taken into consideration. The communities feel that they have been let down. As with the specific claims process, there was praise given to the government for allowing them to be part of the decision making and working with them to produce the act.

We all know that any legislation that comes to this House will not have the support of each and every person out there. However, as a government and having been in government, we feel that we can move forward with a piece of legislation when many people acknowledge that it is a work of collaboration and good consultation. People feel it is one which they can live with and support, given that they will be given a chance to report on it in three to five years, depending on what is in the legislation and that there will be some opportunity to make some improvements to it. Once there is that kind of feedback from the people who are going to be impacted by the legislation, then we know that there is an opportunity that the legislation will actually be implemented and supported by the communities. However, that is not the case with Bill C-47.

I remember when we worked on the First Nations Land Management Act, some bands were quite skeptical that another piece of legislation was dealing with a tiny piece of the Indian Act instead of an overall deletion of the Indian Act.

I have been a member of Parliament for almost 11 years now, and I am proud to say that I am probably the only member of Parliament who has stayed on one committee for the whole term. I have the good fortune of being able to remember how many pieces of legislation have gone through our committee and the number of witnesses that we have heard from all over on the different pieces of legislation that have come before our committee.

When the First Nations Land Management Act came in, there was some skepticism, but after it was implemented and people started to see the benefits for their own bands, they were very open to trying it out. It was voluntary, but more people were applying to go into that regime than the act was capable of taking on. If we do that type of work with the communities and try to help them in their capacity building and in their own governance, I think we will see more success with legislation being put forth that concerns aboriginal people in this country. Because there was cooperation and less conflict, people were open to suggestions. That is what we want to see with legislation that comes forth. We want people to feel that they can contribute, try something out and see whether it will work for their communities.

We do not want to see intimidation. We do not want to see heavy-handed approaches, which is how a lot of decisions were made in the past, especially in the 1960s and even before that, where someone in Ottawa made decisions and told the community what would have to be done. We had no say in any of that. It does not produce good governance or cooperation from the people. It alienates everyone who might have wanted to cooperate to make his or her community a better place to live.

I am sure most Canadians know now that most of the land in our communities are communally owned. I know we are not bound by the Indian Act in Nunavut, but our land is community owned. We have to always take this into consideration when we make any legislation that deals with how one disposes of property, homes or, in this case, matrimonial real property.

Because of these special situations, we need to have an understanding of what solutions will work. This is why it is so important to have the members of a community behind any legislation that will affect their lives.

We know violence affects many homes, whether they are aboriginal communities or not. Unless we have programs to help people, we will not see a lessening of that. Having strictly legal measures to deal with this issue is not the answer. There has to be non-legislative measures also alongside legal measures. That was a very strong point put forth by NWAC, the National Women's Association of Canada. Not only do we need the legal measures and the law that people can go to for assistance, but we also need the measures in the community that will help women usually and children in these cases.

As I said, when I started this debate, we very much support seeing legislation that will help these communities, but how we go about it is fundamental in whether it will be accepted and implemented to the extent that it could help people more if there were more collaboration with the community.

We live in a day and age now where we want to solve more conflicts in the world peacefully and by involving the very people who are in the conflict. We cannot just go in, take over and decide this is the way things should be done. That certainly does not exclude our aboriginal communities. This is what we want to see. We are not saying that there should not be legislation to help families, especially the women and children, but we want to do it in a way that will work.

We are beyond the days of someone saying that they know best how to deal with our communities. It is very sad that we cannot take an opportunity like this to work with the people and have them help Parliament to address the very issues that sometimes end up putting a lot of children in care and our aboriginal people in jail. I do not think families get a real chance to stay together and work things out.

When these children go into care, or some other facility, or jail, it creates another breakdown where one loses their language or their culture, and it is very difficult to heal from that. We cannot keep inflicting damages on communities when we are still trying to recover from mistakes made in the past, such as residential schools, community relocations, people who lost their status and were reinstated, but with no resources for a smooth implementation. We cannot expect communities to move forward in a healthy and safe way when they do not have the capacity to deal with other social situations.

If we do not take into consideration the fact that we have to give the bands the ability to work together with different levels of government, then surely the legislation will fail in the key point, and that is to help women and children live safer and healthier lives.

We all want that. I do not think anyone here will argue that we all have the same goal, but it is how we do it. I cannot emphasize enough that we have to do things the right way with collaboration from the people, with solutions from grassroots. Surely we should know by now that the way we have done things in the past does not work.

I want to see the legislation in committee so we can hear from different witnesses, good experts in this matter, and hopefully see amendments that will improve it.

Committee work is all about that. It is about trying to improve the legislation that comes before us. In the past at committee our experience has shown that the government takes these as attacks, not opportunities to improve legislation. As parliamentarians, our job, as we sit in these chairs inside this chamber, is to provide the best laws and policies we can for our country, to improve it and make it a better country.

Canada is the best country in the world to live. I have seen that as I have travelled a few times internationally. We have a lot to offer, but we also have a lot to learn. The fact that we are open to different ideas and ways of doing things gives a lot of hope to Canadians. They have seen actual changes happen in committee as a result of our listening to witnesses.

We cannot please everyone and come up with the perfect piece of legislation, but at the end of the day, if we all work together, we can come up with legislation with which everyone can live. In a country as diverse as we are, to produce legislation that a lot of people can actually support is a great accomplishment.

I look forward to seeing the legislation in committee. I look forward to hearing from different witnesses. Hopefully we can improve it and make it legislation that communities will be proud to implement.

All those bands will welcome the opportunity to have this type of legislation to work with on their reserves. I do not think we will hear people say that they do not support some kind of legislation, or some kind of rule, or tools or capacity building that will make their reserves healthier and safer communities for their women and children.

When the legislation goes to committee, I strongly urge the government to be open to witnesses and to amendments. No one is arguing that this is not the time for the legislation. It is how we do it, how we implement it and whether we put the resources with it to ensure the communities can work with it in a positive way.

[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 appreciate the intervention of the member for Nunavut in this regard as she has a long career of advocating on behalf of first nations, Inuit and Métis people throughout Canada.

I would like to explore a few of her comments. She indicated that, as a government, we had not included any of the ministerial representative's recommendations in the bill. In fact, a number were incorporated in the bill, including providing basic protections for individual residents on reserves during and after the breakdown of a conjugal relationship, balancing individual rights with collective rights, including the opportunity for first nations to exercise their law-making responsibility in this area, as well as providing for an initiative that will bring about a centre of excellence.

The member comes from a territory within Canada, where individuals have full access to matrimonial real property, as do I, as a Métis citizen from Winnipeg. The people of my community in Manitoba, who live off reserve, have this opportunity. It is something I know she believes needs to be extended.

In light of the fact that the bill provides first nations with the opportunity to develop their own codes on this matter, does the member not believe this is basically the ultimate opportunity to opt out of what we provide as legislation should a first nation believe it needs additional requirements within its code? Does she not see that as a great reason to support the bill?

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

Mr. Speaker, I acknowledge that maybe I should not have said “any”. However, the overall feedback we are getting from the communities that are going to be affected is the government is being selective in the points it is putting into the legislation. One of the comments is the legislation does not recognize first nations governments, which is fundamental. If we are going to recognize and give credence to the bands as the law-making, or the band having the power to make rules and laws for their reserves, then I go back to my first statement of doing token measures.

If we are not going to recognize people as having the jurisdiction to make changes in their community, then we are only going halfway. The way the bill is written, they feel this could intrude on their jurisdiction and law-making practices. There is no planned transition period and support for first nations capacity building and development. If we are to give them the ability to make their own codes, then we have to give them the resources to do the research, to be able to implement them properly. It is fine and dandy to say to people that they can do a certain thing, but not give them the capacity to do it, or to have the people know what their rights are. If they do not know their rights, they will not exercise them.

If we give the law-making ability to make their own codes, and I know some of the land claims agreements have their own codes but they built into them the capacity and the resources with that, then we can work with the first nations to produce those codes. However, they need the money to research them. They need the money to consult with the people as to what those codes are. I know some of those codes are even higher than some of the provincial legislation, so it has been done. It is not like we have to reinvent the wheel.

[Roger Valley, Liberal, Kenora, ON]

Mr. Speaker, my colleague serves the largest riding in Canada and serves with distinction. Anywhere in her riding is a long way from Ottawa.

Some of the points that she just made have a direct impact on my riding. In her riding, she must fly everywhere. I represent 21 first nations in northern Ontario and I must fly to them all the time. Roughly one-quarter of all the fly-ins in Canada I serve in the Kenora riding.

One of the things she talked about just recently was the capacity. Even the most sophisticated urban reserves that have communities on them have resources or have access to resources. When we get to the remote sites that she serves and that I serve in northern Ontario, those challenges can be escalated. They do not have any resources and they have no information. They know nothing or very little of what is going to happen. We can feel the apprehension in these communities when we travel to them.

I would suggest that the hardest areas to serve are the remote sites, the fly-in sites, because the resources are not there. Unless they are specifically identified, these people will not have the opportunity to participate or to have the information and they will not be able to move this issue forward in any way. I think they will be afraid of this legislation.

I would like to hear her thoughts on those comments on the remote sites.

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

Mr. Speaker, I thank my colleague for pointing that out. In this country we expect a certain level of services, whether it be in education, health, corrections or legal aid. We all have the expectation that every Canadian has access to services but in some of the smaller communities, such as those in his riding and in mine where there could be only 300 people, they do not have the services in that community to meet the needs of the people.

In many of those cases, the women and children are flown out, usually to a southern municipality, away from their home, their school and their work, in order to deal with a marriage breakdown. That is a reality.

We need to have an understanding of the special needs that are going to be inflicted on these small communities. Unless they are given the resources and the capacity building, it will be very difficult to offer any services that are required by this legislation.

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

Mr. Speaker, I would like to congratulate my Liberal Party colleague for her presentation on Bill C-47. She is obviously well versed on this subject given that she has sat on the Standing Committee on Aboriginal Affairs and Northern Development for a number of years.

I would also like to point out that she was part of the previous government when an agreement was made with first nations stating that each time legislation concerned them and could change their way of life, the government had to consult them.

In this regard, be it with Bills C-44, C-21, C-30 or C-47, is the current government consulting and respecting this agreement?

[Nancy Karetak-Lindell, Liberal, Nunavut, NU]

Mr. Speaker, that topic of the duty to consult is an area that every government needs to take to heart. If the people feel that they were not part of the decision making, the policy making and the drafting of legislation, it will be very difficult for any government, no matter which party is in government, to get full cooperation on implementing a piece of legislation if the people feel they were not part of it. One of the key points to introducing any legislation is that there must be proper consultation.