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

[The Acting Speaker, Conservative, Royal Galipeau]

It is my duty pursuant to Standing Order 38 to inform the House that the question to be raised tonight at the time of adjournment is as follows: the hon. member for Hull—Aylmer, Manufacturing Industry.

Resuming debate, the hon. member for Abitibi—Baie-James—Nunavik—Eeyou has the floor.

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

Mr. Speaker, in the current context of Bill C-47, we know that laws currently exist in Quebec and the provinces and territories of Canada on matrimonial property that recognize the general principle of equality between spouses. These laws govern spousal rights during the marriage and in the case of marital breakdown. They help define the personal and real matrimonial property of the spouses. They also allow for a system of mandatory rights and protections when it comes to matrimonial property and, in the event of a marital breakdown, the establishment of legal presumption in the equal division of matrimonial property. The laws also include various protection measures for each spouse, for example, in the case of the sale of the family home, where the signature of both spouses would be required.

Nonetheless, between Quebec and the provinces and territories of Canada, there are a few differences when it comes to common law relationships, same sex relationships, rights in the event of the death of a spouse and issues involving family violence.

These laws also apply to first nations spouses off reserve, but do not apply in the same way to people living on reserves administered by the Indian Act, mainly in terms of matrimonial real property, cases of family violence and marital breakdown.

The Indian Act provides for a land management regime that includes a system for making individual allotments of reserve lands to members of the band for whom the reserve has been set aside, but it is silent on the question of matrimonial property interests. It does not provide for a law-making power on the part of first nations in regard to matrimonial property, real or personal.

Bill C-47 concerns family homes situated on first nations reserves and matrimonial interests or rights in or to structures and lands situated on those reserves. It seeks to close the existing legal gap to ensure respect for basic and matrimonial rights and to offer recourse during a conjugal relationship, when that relationship breaks down or on the death of a spouse.

Basically, the bill seeks to balance individual and collective rights, to clarify the inalienability of reserve lands, and to provide greater certainty to spouses and common-law partners on reserves with respect to family homes and other matrimonial interests or rights.

Bill C-47 would set out provisional federal rules as well as provisions for the enactment of first nation laws. The federal rules would be a provisional measure, but would account for the reality that some first nations may not develop their own laws to address matrimonial interests or rights. The bill would enable communities to develop their own laws. Each first nation would be subject to the provisional federal rules set out in the bill until they adopt their own laws, with the exception of those that already have laws about matrimonial real property.

The proposed bill would be subject to the Charter. It would also be subject to the Canadian Human Rights Act insofar as its provisions fall within the scope of that act.

Not all off-reserve matrimonial real property remedies can be replicated on reserves. Given the collective nature of the reserve land regime, land on reserves cannot be owned outright, and the rights to possession differ between band members and non-members. For greater accuracy, the proposed act therefore refers to “interests or rights regarding family homes on reserves and other matrimonial interests or rights,” rather than “matrimonial real property” which, off reserves, refers to both land and structures.

The bill also proposes some provisions related to separation due to family violence.

I think all my colleagues here will agree that despite all the work that went into this bill, the government has still displayed a vindictive and know-it-all attitude when it once again failed to consult women or the Native Women's Association. Yet again, it managed to forget to resolve major flaws.

This week's visit from the president of the Quebec Native Women's Association, Ms. Gabriel, made this very clear.

The proposed act respecting family homes situated on first nations reserves and matrimonial interests or rights in or to structures and lands situated on those reserves would fix a major shortcoming in the current legislation.

Although the Bloc acknowledges this, and knows that we must act quickly, for the good of women and first nations communities, we think that the government has failed in its duties in some areas.

I would like to show my colleagues, here in this House, how the government did not fulfill its commitments. I would also like to explain what the Bloc Québécois proposes to fix the major shortcomings not only in this bill, but also in the entire process surrounding the bill.

To back up my comments about how the current government has not fulfilled its commitments in developing this bill, I would like to go back in time to discuss a political accord that was signed in 2005. As we all know, in order to get into power, the Conservatives ran a campaign based on demonstrating transparency and respecting commitments.

The past few months have shown us that this party does not seem to be any better than its predecessors. Allow me to quote some of its members: “It is our duty as elected members to ensure that the public can continue to have confidence in us. We must demonstrate integrity and consistency in our decisions.”

The process leading up to Bill C-47 runs counter to an important agreement signed between the Assembly of First Nations and the Government of Canada in 2005. I will read an excerpt from this political accord of May 31, 2005, an accord we have been referring to since Bill C-44 was introduced in 2006:

No longer will [the government] develop policies first and discuss them with [the members of the first nations] later. This principle of collaboration will be the cornerstone of our new relationship.

It also says:

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—

The purpose of the accord was to enhance cooperation between the Assembly of First Nations and this government on the development of federal policies on first nations. Can someone please explain to me why that very Assembly of First Nations, the Assembly of First Nations of Quebec and Labrador, Quebec Native Women Inc. and the Native Women's Association of Canada are against this bill?

In the process of drafting this bill, it seems clear that an important aspect of communication was forgotten. We can all agree that in a discussion, two parties meet to share ideas. Consultations were indeed held with a whole host of groups representing first nations and with first nations women's groups, since this bill primarily concerns women.

However, it seems that if Indian and Northern Affairs Canada did indeed listen to the first nations representatives, it did not take into account or did not put enough stock in what they said. I do not think the government representatives acted in bad faith, but the spirit of the 2005 accord, where the cooperation and involvement of the first nations should have prevailed in the drafting of this bill, was not respected.

It would therefore make no sense to go ahead with second reading of this bill. That is why the Bloc is asking the House to refer Bill C-47 to the Standing Committee on Aboriginal Affairs and Northern Development so that the committee can amend the bill to make it acceptable to first nations communities.

The Bloc Québécois firmly believes that the first nations have an inherent right to self-government, and it will ensure that that right is not undermined by the implementation of this bill. However, we also believe that such a bill can fill gaps in the current regulations while communities develop their own law on family homes.

Bill C-47 could be passed once it has been studied and amended by the Standing Committee on Aboriginal Affairs and Northern Development, this time in collaboration with designated first nations representatives.

At this point, I would like to give some more concrete examples of the reasons why the Bloc Québécois is asking that this bill be referred to committee.

Many of my colleagues are aware that the first nations are an integral part of the human landscape of my riding. I would therefore like to speak from my own experience with various nations.

One of the concerns that aboriginal women's groups have pertains to the lack of housing on reserves, because one of the provisions of this bill deals with obtaining accommodation after a conjugal relationship breaks down.

Having visited a number of aboriginal communities repeatedly, I can state that this concern is certainly justified. How many times have I seen whole families squeezed into cramped quarters? How many times has the message been hammered home to me, during meetings with chiefs, that the biggest challenge in communities is the lack of housing? I have lost count. In addition, in communities such as Eastmain, on James Bay, some families are living in buildings despite mould problems so severe that the buildings need to be reconstructed. When there is not enough housing, it becomes difficult to relocate families for any reason.

From my experience, I also wonder about another aspect of this bill. It establishes procedures, including referral to legal procedures that do not always take into account the cultural reality and the access that these communities—often isolated or impoverished—have to certain information and certain services. There is nothing in the bill regarding how the communities will be able to access information and legal services.

For the Bloc Québécois, it is crucial that these realities can be considered and these questions addressed. That is why we would like to know how the government plans to implement this, and how it intends to allocate funding to ensure that the people in question can benefit from the bill. I would also like to ask the government how much funding is earmarked for the communities in order to prepare for implementing the legislation. Finally, we would like the government to submit to the committee the studies concerning the impact of Bill C-47 on the communities as well as the measures that will be put in place to encourage communities to develop their own laws concerning matrimonial homes.

In closing, given the importance of the issue and the insecurity it causes for people living on reserves, the government must take action immediately. It must allow aboriginal people on reserves to exercise their matrimonial rights to and interests in structures and lands situated on reserves. It must ensure that all its actions and decisions comply with the recommendations of the main aboriginal organizations and those of the standing committees, while still honouring the political accord reached with the first nations in 2005.

I believe it would be possible to amend this bill and address the dissatisfaction expressed by aboriginal groups, for example, issues pertaining to the implementation of the action plan, available resources and access by women to legal processes. We undertake to work closely with the first nations and the government, whose actions will respect the 2005 agreement, in order to amend Bill C-30 and ensure that it is satisfactory. We will do the same for Bill C-47.

However, I must point out that the Bloc Québécois has questions about the government's plans for implementation of this bill. We also wonder about the funding that will be provided to the communities and about the introduction of measures to make the procedures accessible to the population, bearing in mind the information that must be provided to the population and the poverty and the geographic isolation, which could restrict the practical application of this bill.

To summarize, the Bloc Québécois is in favour of Bill C-47 being sent to the Standing Committee on Aboriginal Affairs and Northern Development to study the ins and outs and, above all, to hear the testimony of stakeholders.

But first, we wish to know the intentions of the government concerning the possible amendments to Bill C-47 that it would be willing to accept.

[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, the member has attended a number of aboriginal affairs committee meetings and has provided considerable insight into the issues facing aboriginal Canadians throughout our country and in his own riding.

A few of my questions for him would be in relation to some of the matters he raised. One of the words he used in relation to us bringing forward this bill was the word “revenge”. I am hopeful that was just some sort of word lost in translation because that would never be a motive for our government. I just do not understand how that could come into the context of this discussion but I am sure he will perhaps illuminate us a little more on that.

However, I have a more specific question. He referenced consultation and how he felt that it was inadequate. We held over 109 consultation sessions throughout the country at 64 different locations. Many individuals came forward. How much adequate consultation does the member think a government, any government but, in our case, this government, needs to engage in before we can proceed with such an important bill to deliver matrimonial real property rights to first nations citizens and, of course, first nations women?

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

Mr. Speaker, I would like to thank my Conservative Party colleague for his question. I did not say “revenge”; I said “vindictive”, which is a word used to describe someone who always makes the same mistake or insists on repeating it.

With respect to consultations, I am sure the Minister of Indian Affairs and Northern Development talked about what constitutes consultation. Our position on this, a position shared by all opposition parties, is that the consultation should have been defined, as set out in the 2005 agreement, by the first nations' elected representatives and the government. In other words, the government should have worked with them to define what adequate consultation would be on various issues.

Had that been established from the very beginning, many problems and demands could have been eliminated that have been a waste of time for government members and all members of Parliament.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I was here to listen to the presentation by the member for Nunavut and I must say that she has been a champion on behalf of the interests of first nations, Inuit and Métis.

In a prior session of Parliament, on government Bill C-30 dealing with climate change, I can recall that there actually was a point of order raised with regard to the release of a draft bill to the public prior to it being tabled in the House. The government argued that the presentation of that draft bill to stakeholders, being environmental groups, et cetera, was necessary for full consultation to ensure there was an understanding and to ensure we had the best possible bill come forward.

I use that as a parallel, as with the urging of those who are participating in this debate, that there should have been broader consultation even before this bill came in. Now the members are arguing, very forcefully, that we need to have the input of the grassroots, as the member for Nunavut said, so that women and children can live safer and healthier lives, and that we need to do it the right way and we do need to consult fully.

However, I am concerned, and I do not know whether the member shares my concern, that the government has simply dismissed the requests and the urgings to have full consultations during the committee process and is urging members simply to pass the bill because it is a good bill. I do not agree with that approach and I wonder if the member has some comments to add.

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

Mr. Speaker, I want to point out that I do not represent Nunavut. The member who spoke earlier might not want me to compete with her over her riding. My riding includes Nunavik, a region in Quebec. I would also address this remark to her colleague who spoke earlier.

I would like to repeat what I said at the outset. The government of the member who just asked the question signed an agreement with first nations in May 2005. That agreement was signed. The government made a solemn promise to consult elected representatives of the first nations before drafting any bill or introducing legislation that would change their lives or their culture.

Even so, the government persists in introducing legislation that violates that agreement. Even if the laws are good for them, this is an insulting way of going about it and gives them little option but to oppose the proposed legislation. This approach will not foster agreement or collaboration between first nations and Parliament or the government.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, I appreciate the opportunity to rise this afternoon to say a few words on this very complex issue. It involves a number of sub-issues and when we boil it all down, it is not simple.

First, I will support the legislation, when it comes for a vote, to send it to committee. There is some stakeholder opposition. I have read a lot of the points, the memos and the briefs that come in from different interest groups and I have tried to digest them as best I can. However, I will support the bill so it can go to committee, receive a full airing, have the refinements or improvements made and then come back to the House after the committee has deliberated on it.

We have a situation that has developed over the last number of years. We have a clash between what happens on reserves and what has changed substantially and considerably in Canadian society over the past 50 years. Sometimes that is not a bad thing, but in this case it cries out for redress.

My instincts, as a parliamentarian, are to proceed very carefully and cautiously, after much consultation with our aboriginal brothers and sisters, before we move on this issue. However, it is an issue that calls for a legislative solution, and hopefully it will be an interim legislative solution, but it is not an issue that we can ignore as parliamentarians. In my opinion, it is a basic matter of human rights for women and children living on reserves, an issue that cannot be ignored.

To frame the debate, it is interesting to consider the changes we have seen in society over the last 50 years. I started to practise law about 32 years ago. It was changing then, but let us go back a few years before that.

The basic rule of law was that a married woman, if there were separation or divorce, had very little in the way of rights. If individuals were not married, living common law, there were no rights. In most instances the title to the property, whether it be a farm or a home, was in the man's name. This concept has basically disappeared from the legal nomenclature, but there was an interest called dowry. A woman had a one-third life interest in the property and she had to sign off if the property was sold or mortgaged, but that right did not give her any one-half interest if there were a separation or divorce.

We can see how society has evolved and changed over the last 50 years. It was not transformative. It came gradually. We had certain provinces enact family property laws. They were debated, interpreted and changed. We came forward with no fault divorce legislation, where situations, like adultery, did not have to be proven, the best interest of the children became a concept in our matrimonial law. Looking back, from May 14, these are concepts that most Canadians would accept as basic human rights.

Then there is the situation that exists on aboriginal reserves right now. This goes back to a 1986 court decision regarding a situation where a husband and wife, whether legally married or common law, separated. The court decided that the provincial court did not have any jurisdiction to adjudicate upon that land because it was located on a federal reserve, which came within federal jurisdictional powers. It certainly left a very large legal vacuum where people were basically left with no rights. Provincial law did not apply.

Off reserve aboriginals did not face the same predicament as provincial law would apply in this case. If an off reserve couple lived in a city, town or rural area in Canada, outside of an established reserve, and there was a separation, the normal matrimonial laws in the province would apply.

There were a number of problems. The biggest legal vacuum was there was no jurisdiction to adjudicate the problem. Then it was complicated further because of the fact that on most reserves the land is not owned by individuals. It is owned collectively by the reserve. However, the couple or individual would have a possessory interest in the property, which complicated it a little further.

Therefore, there was what I consider to be a tremendous vacuum in the law if a couple separated, especially if it dealt with domestic violence or a situation where the rights, safety or protection of children were involved. In particular cases, the judges were handcuffed. No temporary or permanent restraining order could be issued. The court could not entertain a partition for the sale of the property. There would be nothing to preclude one of the spouses from selling whatever possessory interest he or she had, or a mortgage on the same. Basically, there was a situation where the basic human rights of individuals were and could be violated, which cries out for a legislative solution.

It has been a very significant issue and it is one that has been before the House several times before. It has been a subject of the discussion in debate in at least three parliamentary committees and it has been discussed in the House. As I indicated earlier in my remarks, it does not have the total support of the stakeholders: the Assembly of First Nations, the office of the grand chief and the Native Women's Association of Canada. They all take the position that they are presently against the legislation.

I read their briefs in the preparation of my remarks. I think they are trying to broaden the scope of the whole argument that it does not go to the causes of the particular situation. It does not address situations like poverty, education, health or the lack of access to water. However, that is not the purpose of the bill. The purpose of the bill is to get at this issue.

There is no attempt, and one could argue it should, to deal with the larger issues, and I do not think anyone in the House or any Canadian would suggest that they should not receive attention from the government. The bill deals with a very specific instance. It should be dealt with and should not be delayed that much longer.

That is where I am coming from in my remarks. It is time to send this to a committee and get further input and dialogue from the major stakeholders dealing with this issue.

Going back to the briefs received from some of the aboriginal leadership, the suggestion is that it does not acknowledge the inherent treaty rights of first nations. This is should be acknowledged. However, this is interim legislation only. It acknowledges in the legislation that the first nations and the bands should take this on themselves. It provides a certain framework for them to do that. It provides a certain time for them to do that. I hope they will go ahead and do what is right and necessary, so the necessary governance is there, so the existing issue will not exist once the first nations develop their own provisions for dealing with this issue.

Again, this is an acknowledgement that they, their governments and their leadership should take on. I consider this to be interim legislation, but it will prime the pump and get the thing going. Hopefully, the various bands across the country will address the situation.

We must not forget that this court case was adjudicated upon in 1986. We are here 22 years after the fact and nothing has happened since then. Until that happens, this legislation will apply.

Again, I think all Canadians, aboriginal and non-aboriginal, would like to see this happen, in the interim. If there were a situation where a legally married couple or a common law couple separated or divorced, that there would be an equal division of whatever matrimonial assets were in the family. However, no person would be allowed to sell or mortgage any interest in the title, whether possessory or real, in the property. If there were a situation dealing with domestic violence, where the rights and interests of the children could have been affected, this could be subject to either an interim or a permanent court order. At the same time, the bands would be notified of any of these proceedings. This is very important in the whole process.

Again, as I said in my earlier remarks, when I first looked at this issue, it was something with which I wanted to proceed with tremendous caution and with the greatest amount of consultation. However, it is an issue on which Parliament has to move. I hope we are not here in 22 years time talking about that issue.

When I read the briefs from some of the stakeholders, they wanted to tie in a lot of the non-legislative issues, such as poverty, housing, water, access to justice and governance issues, and I agree with what they have said. There is no greater stain on Canadian society than the present plight of our aboriginals.

When I look back, it is something that cries out for action from the government. I look back at the tremendous opportunity missed at the Kelowna accord. In that room we had all 10 provinces, the major aboriginal groups, the Government of Canada and all the major stakeholders ready to sign on the dotted line. I would not suggest that would be the solution to all the problems. However, it was a platform. It was a start. Perhaps it would not have ended the bickering that goes on or the blame and accusations that fly back and forth in here every day, but it would have started the dialogue. I had so much hope for the initiative and I was so disappointed when it did not continue.

Again, however, we have to deal with the present, not the past.

I should say that I chair the public accounts committee, and we are certainly not the solution to these problems at all, but every year and sometimes twice a year we get very unpleasant and troubling reports from the Auditor General of Canada about the plight of our aboriginal citizens presently on reserve. The second-last one was about the education system on reserves or aboriginal communities. It was a distressing and troubling report. The job is not getting done.

The report we received last week talked about aboriginal children in custodial care, about the lack of guidelines and, really, about the lack of care. It is really troubling. We are talking about kids who are from three to seven years of age and they are being treated like this by our system. Certainly it did not come in for a hearing yet, but it is just another troubling chapter that has come to the committee from the Auditor General of Canada.

We make recommendations, but it is the same thing in four or five years. The same department comes back and things are no better. It is such a frustrating experience to see this year in and year out. All I can say is that the present system does not appear to be working in the best interests of our aboriginal citizens.

In conclusion, I will be supporting the bill going to committee. I hope that the Standing Committee on Aboriginal Affairs and Northern Development has a long look at it and gives it a full airing. This is the framework. I certainly hope that there will be amendments and changes made to the bill. I hope committee members do not ignore the inherent right of our aboriginal communities, our first nations, and certainly do not ignore section 25 of the Canadian Constitution, and I hope they will come back to the House with a final draft of the legislation.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I appreciate the member's input. I have looked at correspondence from some of the stakeholder groups. One of the things I noticed that was common to all of them in regard to their concerns was the lack of what they refer to as the “non-legislative measures addressing matrimonial real property”.

There also seems to be a significant concern about the consultative process, which has been a matter of discussion long before this bill came up. In fact, it has been discussed with regard to dealing with a broad range of issues related to the first nations, the Inuit and the Métis.

I wonder if the member could comment on how important it is to have those thorough consultations in advance of the preparation of legislation so that good faith is built up in the process to ensure that we do get good legislative measures as well as consideration of and dialogue on the non-legislative measures.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, the member raises an important point. I read the briefs from the stakeholders. In particular, the National Aboriginal Women's Association came forward and said that this bill does not take care of the causes: the domestic abuse, the poverty, the water and the lack of justice. They are quite right. I could not agree more.

The brief by the grand chief talks about the governance issue: the lack of consultation, the lack of respect for the inherent treaty rights and the lack of respect for the Constitution of Canada. Again, that is one issue, and I agree with it.

As I said in this chamber in my first sentence, this is an issue that I as a parliamentarian take on very cautiously. My instinct is to go very slowly and cautiously, but at the end of the day, because of this particular situation, it is an issue that Parliament has to proceed on. It is an interim matter. It provides a framework for the first nations and bands to come forward with their own laws and rules, acknowledging their own right to self-government.

However, until that is done, the overarching framework will apply. The member across talked about the consultation. He is quite correct that it is about good faith. There is a suggestion from some of the stakeholders that the necessary consultation has not taken place. Accepting their brief as being correct, then that consultation hopefully will take place at the committee stage. This is why it is so important for the committee to get hold of this, have extensive consultations with all the stakeholders and come back to this House with the legislation in its final form.

[Roger Valley, Liberal, Kenora, ON]

Mr. Speaker, my colleague has talked a lot about how we know what legislation is before us now, but he has used the word “consultation” many times. He did touch on the Kelowna accord. One of the largest efforts in consultation put forward by any government was to bring the Kelowna accord to fruition. We have heard the false claims there never was such an agreement and that there is no signed document.

The fact is that people from across Canada worked on the Kelowna proposal. We had collaboration from all walks of life in Canada. It was going to be a hallmark piece of legislation, an agreement that was going to move the first nations forward. As my colleague said, it was the first step in really bringing them forward.

I am going to give the member the opportunity to make any other comments on what Kelowna would have done for the first nations of Canada and what it would have done for Canadian society to realize that we are going to walk together as we move forward.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, that was a very interesting development in our political life. We had this situation and were able, with a lot of hard work and consultation, to get all the players together in a general framework agreement. All 10 provinces, the 3 territories, the Government of Canada and all the major aboriginal organizations were there in the room. They all signed on the dotted line.

I am not going to suggest that the agreement was going to be the answer or solution to all the problems. It would be a little naive of me to say that, but certainly in my life it was the first time that I was seeing a platform where all the parties were talking to each other. If we are not talking to each other at the same table, we probably are not going to get too far in trying to resolve certain situations. In this situation, all the parties were actually talking to each other.

There was a framework for education and one for infrastructure, but again, I am not going to suggest to this House that this was going to be the answer to all the problems facing our aboriginal citizens. It was not, but it certainly would have been a major step and a platform for other initiatives and other developments to go ahead. That was lost. It was basically thrown off the back of the truck. It disappeared. In hindsight, I think we lost a tremendous opportunity.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

Mr. Speaker, I am very honoured to participate in debate on Bill C-47, which is a proposal to deal with the long outstanding issue around matrimonial property rights on reserves.

All who have participated in the debate have acknowledged that there is a need to finally address a matter that has been left in the lurch since the 1985 Supreme Court decision which ruled that provincial laws regarding division of property after a marriage breakdown did not apply on reserve. That we agree on.

I do not think there is anybody in this chamber who disagrees with the fundamental principle at stake here and the need to advance legislation to fill the vacuum. We all recognize that there must be legislation to ensure proper division of property and assets upon a marriage breakdown, whether the people are living on reserve or off reserve.

That principle we support. The question today is this: does this legislation actually fill the bill? Does it respond adequately to the situation at hand?

I listened very carefully to the member for Charlottetown suggesting that it may not be perfect, but heck, we have to act on something, and it is so long overdue. We have to put in place an interim arrangement and this might be it, he suggests. We will go through committee and we will see, it is suggested, and this is only intended to deal with this one narrow piece so let us get on with it.

However, I cannot separate the whole question of equality of matrimonial property from the issue of equality in general. We cannot simply say that we will deal with one tiny piece and leave everything else in disarray or neglected. We cannot put a little bandage on a situation in the hope that we can stop the hemorrhaging.

I suppose it would not hurt to get the bill to committee so we can hear from the various informed players in our society today just how badly the bill meets the requirements, just how much off the mark it really is, and just how little the consultation that did happen was reflected in the bill itself.

I will read again for members the words of the minister responsible for the legislation, who said, as he did just yesterday, that “laws are much more likely to succeed when drafted with the input of the people who would be affected by them”. I agree. The problem with this bill is that the government chose to ignore the bulk of the evidence that was presented to it, as well as the majority of the suggestions that were made and that should have been included in the legislation.

Therefore, the government is masquerading today. It is pretending that it has consulted, that it has addressed the vast array of interests and concerns in this area, and that here all of it is in the bill.

That is far from the truth. We only have to look at some of the key players. Let us go right to the Assembly of First Nations, a broad governing body of the first nations in this country. Obviously it was consulted. The minister would like to pretend that its input was included in the bill, but that is not what Phil Fontaine says.

Phil Fontaine makes it very clear, in fact, that the consultation took place, but the suggestions that were made are not reflected in the bill. I want to quote from his letter of April 8, in which he says:

--the fact that direction provided through this dialogue does not appear reflected in the tabled Bill, leaves us to conclude that the dialogue was of limited value in promoting and implementing a reconciliation approach regarding First Nations aboriginal and treaty rights and Crown sovereignty.

Where is all this input from the community that the Conservatives are talking about? There is something strangely amiss in this place when the minister stands in the House and says that this bill was based on what the aboriginal people wanted and yet those people who were consulted say it is not there.

The same is reflected in material produced for all members of Parliament from the Native Women's Association of Canada which wrote as recently as yesterday that the association held extensive meetings with aboriginal women across Canada to identify solutions to the complex issues comprising the matrimonial real property problem. NWAC believes that the voices of these aboriginal women and the solutions they develop must be respected and included in the government's approach. This has not happened. I hope members are listening. The Native Women's Association of Canada says that this has not happened. Instead, the government has turned the processes that preceded the introduction of this bill into a farce by failing to include the elements that aboriginal women identified as important to them.

I hope that the members on the government benches are not making disparaging remarks about the Native Women's Association of Canada or the Assembly of First Nations. I hope that they are listening to the fact that these voices, these well-established organizations, these reputable organizations in our country today, feel that their concerns are not reflected, are not included in this bill. That is important. It goes back to what the minister himself said yesterday, that the best legislation around is that which reflects the feelings of the people it affects.

If this bill does not do that, we have to change it. We cannot simply let it go on and say that this is it. We cannot do as the member for Charlottetown said, that this is an interim measure, we will have some consultations and then we will get on with it. No. We have to fix the problem. If we are going to send it to committee, we have to do it on a real basis, on a substantive basis, and the government has to indicate it is prepared to accept the amendments and changes that the groups want.

Clearly, we have touched a sore point. The members on the Conservative benches are starting to heckle. I guess I am getting under their skin. I hope so.

There is no point in trying to deal with an issue that is so important and which has been neglected for so long in a half-hearted way. We have to do it in a comprehensive way, with the voices of those people who are affected, who say that this legislation in fact still allows the minister to strike down first nations laws regarding matrimonial interests. This legislation neglects to consider the welfare of children. This legislation, which has been a priority for first nations women since 1985, however, puts the value or the importance, the priority of individual rights ahead of collective rights, which is so paramount to how we deal with issues pertaining to first nations communities on reserves.

We need to send it back. We need to rewrite the bill. If we do it at committee, great. There is no problem with that. However, we cannot also neglect the social and economic context in which we find ourselves today.

I know that others in this House have said that yes, they know about all those problems with housing, water, health, child welfare, suicide, but they cannot all be dealt with in this piece of legislation. Then I ask, when can we deal with them? When will this government finally deal with the neglect in its own areas of jurisdiction, like child welfare on reserves? Why does it not act when there are independent reports such as Judge Guy's in Manitoba as a result of teenage suicides on reserves? Why does it not act after hearing from the Auditor General repeatedly, as we just heard this past week, about the situation with respect to aboriginal children and teenagers on reserves?

The evidence is in. There is a connection between neglect of people and worth of an individual, an entitlement to property when a family is in trouble or a marriage breaks down. There are connections to be made.

We all know that marriages sometimes break down because of socio-economic issues. Are we in this place not interested in trying to protect and preserve the family and the institution of marriage? Are we not interested in providing for equal access to property upon a dissolution of a marriage, which means looking at the inadequacy of the resources on the reserve in the first place?

What is the point of dividing up property and suggesting that one person in that marriage should leave the matrimonial home and find on the reserve another home that does not exist? What is the point in acting if we cannot find a way to deal with the violence against women which seems to be no longer on the government's agenda? What about the missing women and stolen sisters in this land? Did we not learn anything this past weekend when women marched in the streets of cities right across the country about the absence of programs to help missing women and to respond to situations facing women in domestic disputes?

In Winnipeg alone, women were marching the streets, responding to messages from people like Bev Jacobs of the Native Women's Association of Canada, from Gloria Enns, who is with the Dufferin Avenue women's drop-in, from Kim Pate, the executive director of the Canadian Association of Elizabeth Fry Societies, and from Jackie Traverse, who is an artist and part of the whole movement to address the situation of missing women. Where is the government? Where is the response?

Is that not important in terms of matrimonial property and division of assets? Is it not important to look at the situation facing women and children?

As we speak, a campaign is being organized around the whole question of family violence in aboriginal communities. It is called the Awareness Campaign Against Family Violence. It flows from the recent documentation of the Auditor General and other reports showing in fact that the underfunding of services is an important issue when we are dealing with the issues before us today. They talk about the existence of a discriminatory bias that aboriginal families are undergoing whereby an alarming rate of children are apprehended to be placed in non-aboriginal families everywhere in this country. We learn that the quasi total amount allocated by the government in Ottawa for child care and family services is directed to child placements. Crumbs are allocated to prevention.

We cannot simply carve off a piece of the issues at hand and say we are going to fix this without even consulting or including the advice of those affected.

We have two problems with the bill that have to be fixed at committee. One, the bill on its own in terms of the division of matrimonial property on reserves is flawed. Two, the government's approach is flawed when it comes to dealing with the situation facing aboriginal people on reserves.

The government has failed to live up to the responsibilities under the Constitution for which it has responsibility. It is in dereliction of duty when it comes to responding to issues facing children and teenagers on reserves. It is in dereliction of duty when it comes to responding to violence facing women on reserves. The government has shown dereliction of duty in terms of its commitment to ensure proper health and social services for all people within its jurisdiction. There is no shortage of material to make this case.

Mr. Speaker, you will know that I have tried to seek consent from you to have an emergency debate on the question of adequate protection for aboriginal children on reserves. That flowed from the fact that the discrepancy between what the provincial government in Manitoba pays for children in welfare off reserve is so much richer, appropriate and responsible in comparison to the allocation of resources provided by the federal government for children on reserve, children in trouble on reserve, which is under the federal government's jurisdiction.

When will the government actually live up to its responsibilities and take seriously the needs of aboriginal people? That is the real question of the hour, because kids are dying. Suicides are happening every day. We only have to refer to what is happening in Shamattawa, Manitoba, and see the number of suicides that are mounting each and every day.

This is the opportunity when we can address the issues facing women, children and families on reserves, to give them the right to be treated as equal citizens in this country, to be given respect and to be treated with dignity and equality.

The House resumed from May 14 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.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I am pleased to participate in the debate on Bill C-47. In the debate on this bill yesterday, there were a number of very good points raised by the member for Nunavut.

This bill is 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.

The debate has brought a lot of very important dimensions to the crisis that exists on first nations reserves. This legislation is necessary because there is no legislation now to which people can turn. These are the representations of the member for Nunavut, who has been one of the most stellar champions of aboriginal affairs, of first nations peoples, Métis and the Inuit. During her speech, she referred to a couple of stakeholder representations, which I want to review simply to provide a context as to why I have risen to speak.

The Native Women's Association of Canada expressed its views in a press release criticizing this legislation. It expressed its frustration with what it refers to as the government's unilateral action on the bill. The discussion has to do with legislative initiatives and unlegislated initiatives. It is the unlegislated initiatives part that is the source of some of the concern expressed by the Native Women's Association of Canada.

Bev Jacobs, the president of the NWAC, stated in her press release of March 4, 2008:

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 is a very strong statement.

We just dealt with a report from the Standing Committee on the Status of Women relating to some of the issues, particularly with regard to the violence against many women and also some of the other areas, such as housing, poverty, governance, access to justice and general violence. It is very important to ensure that Canadians understand and our first nations also understand that we are sensitive to this. I have not seen that in regard to the representations of the government. As I listen to the questions asked by government members on Bill C-47, the government seems to be fairly dismissive. The attitude of the government is that we should just pass the bill, that it is a good bill and the government does not have to do anything else.

The government must listen to the stakeholders, those who are seeking some relief in dealing with a serious crisis within the first nations communities.

Also, there is a very significant letter dated April 8, 2008 from the office of the national chief of the Assembly of First Nations, Phil Fontaine. When I read it, I was somewhat concerned about the allegations that were made in the letter. The position generally is that this bill is flawed in both process and substance and that while its assessment of the bill is not finalized, the Assembly of First Nations will want to make further representations. This letter is extremely important. It was very helpful to me in understanding the view of the stakeholders, and it does include the preliminary analysis of the Assembly of First Nations.

Even in the text of the letter, with regard to Bill C-47, Mr. Fontaine said:

While it was a positive and practical step forward to engage in dialogue with the Assembly of First Nations (AFN) and the Native Women's Association of Canada in the development of this legislation, the approach falls far short of First Nations' direction that the Crown should fully engage with First Nations in developing policy and legislation that affects First Nations.

The substantive foundation of the concerns that they have has to do with the consultation process. I recall that in her speech to the House, the member for Nunavut commented on that aspect. She said:

--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.

The concern is if there is a perception of tokenism, of consultations which are going through the motions but which are not really sincere, it is a recipe for disagreement and maybe discontent. Parliament has a serious responsibility to consult with stakeholders regardless of which piece of legislation with which we are dealing. When we make laws, we are affecting people in one way or another and those people need to be heard.

According to the national chief of the Assembly of First Nations, it appears that has been a problem not only with regard to Bill C-47, but generally with regard to many of the issues that have come before Parliament.

Mr. Fontaine went on to say:

Furthermore, the fact that direction provided through this dialogue does not appear reflected in the tabled Bill, leaves us to conclude that the dialogue was of limited value in promoting and implementing a reconciliation approach regarding First Nations aboriginal and treaty rights and Crown sovereignty.

I take this as a very serious alert for parliamentarians and for the government with regard to Bill C-47. We have to step up and take this a lot more seriously and determine whether or not there are appropriate steps to address these legitimate concerns that have been raised by Chief Fontaine.

He went on to say:

In regards to the process of engagement, the AFN has clearly stated, on numerous occasions, and in formal correspondence, the position of First Nations in this regard. In addition, the AFN and First Nations through the dialogue process, detailed alternative approaches and measures to address the issues arising in relation to matrimonial real property on reserve. Indeed, the federal government had many, many opportunities to address these matters properly and effectively.

He went on to say:

Unfortunately, the advice and direction of AFN and First Nations has not been heeded and I must point out that the First Nations assessment of the proposed legislation will likely be that it is unconstitutional in law and of no value to First Nations individuals or governments in practice.

When I read that it made me want to know more. I want to hear more. Should the bill go to committee for review, the questions that were raised in the consultation process and which apparently were not heeded by the government in proposing the legislation, need to be considered. We need to remediate that situation. We need to make sure that the stakeholders, regardless of their basis, are heard and that the issues raised are frontally and effectively addressed so that all understand. Regardless of which side one is on on a particular issue, there is always room for due respect for the opinions of others, but that does not seem to have been the case in this regard.

The bill contemplates an approach that will not provide any effective remedies for individuals seeking redress. That was the intent of the bill and is the intent of the bill. It is why the member for Nunavut, when she spoke before the House yesterday, made this argument over and over again. Yet when the parliamentary secretary rose on questions, he was dismissive of her question and made the assertion that the bill should be passed, that we should move forward because there were other things to do.

We have things to do. We have to get Bill C-47 right. The objectives of this place are to have full debate and to properly identify those issues which should be addressed.

The first nations wanted to articulate, as laid out in Chief Fontaine's letter, the principles that should guide the search for solutions and the standard upon which proposed solutions should be evaluated. He went on the list about a dozen. He lists strengthening first nations, families and communities, fairness, respect for traditional values, protection of aboriginal and treaty rights, no abrogation or derogation of first nations' collective rights, protection and preservation of first nations' land for future generations, recognition and implementation of first nations' jurisdiction and community based solutions.

I had the opportunity to be a member of the Standing Committee on Health when we dealt with aboriginal health issues. The committee travelled to a number of reserves to consult with stakeholders and to determine some of the non-legislative areas of which we should also be cognizant.

It was clear to me that there were substantive differences between reserves. Some are in much better shape than others. One thing I noticed was some of the fundamentals, like clean water and a sewage system, were not present.

There were a number of health issues in program areas. I remember I went into a modest community centre on one reserve. In the basement was a large lineup of people and I wanted to know why. I found out that people were lining up to buy cases of cigarettes for resale. However, next to that was the jail. It is hard for Canadians to understand the realities of the lives of first nations and the challenges they face.

As a consequence of that review, we found that the problems which existed on first nations reserves, which exist throughout Canadian society, were multiple times more in terms of severity as well as the occurrence levels, whether it be substance abuse, or domestic violence, or problems with children or social problems, et cetera. These are areas which Canadians demand that Parliament address in an appropriate fashion.

I thank Chief Fontaine for his letter of April 8 and the preliminary analysis. I will not go through this, but it is available and if members do not have a copy, I would be happy to provide it for them.

I want to comment generally on the bill. The Liberal Party supports the bill to go to committee. Like many bills where second reading occurs, we are often approached by stakeholders and constituents who suggest the bill should simply be defeated at second reading. This happened with regard to animal cruelty legislation. It is happening with regard to Bill C-51, which has to do with natural health products.

Canadians and all interested parties should understand that when a bill comes before the House at second reading, we have representations in an informal way from those who are interested parties. We have our own knowledge, some of our own research and some historic research.

What we do not have at second reading is the present assessment and the current input of the experts. We do not have the formal position of the stakeholders on both sides or all sides of the argument. What we do at second reading is debate, in principle, the aspects of the bill and whether there are any major problems.

Members know that when we pass a bill at second reading, we pass it in principle and get it to committee where there can be, as necessary, full consultation and public hearings to allow the stakeholders to come before the committee to articulate very clearly the positions and concerns they have to proposed amendments, et cetera. Some of the best work in Parliament happens at committee, where it is not just a handful or 12 members of Parliament who make the decisions. They are there participating in a consultation process with the necessary expertise, not only from the government and the officials of the department, who will answer the questions of the members and explain the bill in great detail, but also with those stakeholders, which is extremely important.

I am quite sure the bill will pass at second reading. However, I am also quite sure throughout this place there will be a strong representation that we should have very comprehensive public hearings and hear from the stakeholders to identify how we can deal with those matters which may not have been reflected in the bill, even though they may have been raised under preliminary consultation with the principal stakeholders.

There are many stakeholders in regard to the bill. We can never forget that this is a matter of human rights for women and children living on reserves. The whole objective of the bill is so they can have safer and healthier lives and therefore happier lives. Those are fundamental objectives. Who is against that?

How we deliver that will be the issue. Legislating certain things will help for those matters which require a legislative solution because we need a law to guide it. We cannot achieve the full impact and the benefit of the law without having the non-legislative component and the initiatives, the support and the funding necessary to provide an environment in which those laws can operate in a fair manner.

While we support the intent of the bill, we do not support the unilateral process the government has taken in introducing the legislation. We were instrumental in making critical changes to Bill C-21 to ensure that aboriginal Canadians would have the time and the capacity they needed to deal with changes. We continue to push the government to address issues such as the human rights needs of aboriginal Canadians, education, jobs, poverty, water and health, which are much the same kinds of conclusions that we reached in the health committee I back in 1994, which was when the new Parliament started.

It was an education for me, as an urban Canadian with very little exposure prior to coming to Parliament, about the challenges faced by our first nations and their people, the Métis and the Inuit.

The bill itself establishes a federal matrimonial real property regime, combined with the mechanisms for first nations to develop their own matrimonial real property laws.

By way of background, in 1986 the Supreme Court of Canada ruled that when a conjugal relationship broke down on reserve, courts could not apply provincial or territorial family law because reserve lands fell under federal jurisdiction. We can see the need to address that condition.

As a result, aboriginal women living on reserves have not enjoyed the same rights as women living off reserves. That is an important matter to be resolved. They are not entitled to an equal share of matrimonial property at the time of the marriage break down. Matrimonial real property refers to the house and the land that the couple lives on while they are married or in a common law relationship.

The government began preliminary consultations on this matter, but it focused on recommendations made by committees. The next step was to move to the legislation solution. As I had indicated, this is not simply a matter to be addressed by legislative proscriptions. It also requires a non-legislative approach.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, I listened with interest to the member as he articulated his view of what happened with respect to the bill. He used the term “unilateral process”. I remind him and all members of the House that 109 different consultation sessions were held with aboriginal groups, a total of 135 consultation days in 64 different locations across Canada.

He went on to say that 12 members of committee should not be making the decision as we engage in this consultation process. I have three questions for the member.

First, is he aware that his party's critic for Indian affairs stated unequivocally that the Liberals did not consider the committee process part of the consultation process?

Second, would he envision another 109 or more sessions of consultation before committee?

Third, how long is he willing to have this important initiative held up? First nations people have been waiting for this for years. It is my opinion and the opinion of members on this side of the House that we cannot afford to unduly hold up this bill.

I would like an answer to those three questions please.