Bill C-8 (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

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, as is quite traditional in the House, members who were in the House for years and years failed to get something done, but all of a sudden they are starting to recognize that was a bad mistake. I know my colleague across the way and his wife. I know he supports women's rights.

This bill will do something for aboriginal women that has never been done before. It is long overdue. It is time to quit talking about it. This government is going to do something about it.

[Shelly Glover, Conservative, Parliamentary Secretary for Official Languages]

Madam Speaker, I want to commend my colleague on making a great speech. I had to stand to say that what the member across the way said is absolutely not true.

I myself have met with a number of aboriginal women's groups. I myself am a Métis woman who spent almost 19 years policing. I have seen the devastating effects of what happens when women, particularly aboriginal women, do not have rights that allow them to have some property or a place to live when there are domestic problems. The children suffer.

North Point Douglas Women's Centre is a facility where my mother works. My mother is very active in the aboriginal community and very active with women's groups across my province of Manitoba. Many women from reserves have fled because of the fear they face.

I would ask my colleague if he could highlight the fact that we have worked very hard. Being tough on crime is something that we believe in. If he could, I would like him to highlight what kind of measures are being taken under this bill to protect those women who are in domestic situations and are fearful.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, I am going to use the opportunity to state how proud I am to have a colleague like the member for Saint Boniface in her role here as a parliamentarian. She is a proud member of her Métis community. I know that she fully supports women's rights.

Domestic violence has no boundaries. It occurs in every race and group across this country. It is an unfortunate thing, but it is a reality. This bill will give an aboriginal woman who is caught in a bad domestic situation rights equal to the member or any other woman in this country. That is something we should all be very proud to stand up for.

[Todd Russell, Liberal, Labrador, NL]

Madam Speaker, I thank the member for his speech, although I fundamentally disagree with it.

What does he say to a group like the Native Women's Association of Canada which says that this bill is fundamentally flawed to a point that it should not go to committee? Do we pay any credence to that group's voice in this? They are women speaking for women. When one makes the argument that this is about women's rights and the extension of women's rights, should we not listen to those people who are most directly affected?

The Native Women's Association of Canada represents hundreds of thousands of people in all territories and provinces across this nation. Should we not listen to them and say that they have a legitimate point here, that we have listened to them and that we can do things differently? What does the member say to the Native Women's Association of Canada?

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, even though the hon. member is on the other side of the House, I do have a lot of respect for him. I know he is very proud of his native background.

As we all know, governments consult across the country and, as I said in my opening remarks, that has been done to no end and it is time to act. As individual members, we also have the obligation to consult. As I indicated, I have two reserves in my riding and I have talked to a number of women there who wholeheartedly, 100%, support this bill. What I hear most is that it is long overdue.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Madam Speaker, I had a delegation in Parliament the other day from a reserve in my riding. The chief was here with a delegation and some of the elder ladies were here voicing their opposition to this bill. However, in this same riding, I have had a great number of people off the same reserve who have requested that we seriously consider this.

Should this go to second reading and committee? Do we not have an obligation to bring forward ideas, thoughts, considerations and to hear valid arguments, and then come to a collective understanding? That takes courage.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, as I indicated earlier, we seldom ever have unanimous consent in this House and we certainly seldom get it from across the country, if at all, but that should not discourage us. We voted on some bills last night in this House and one or two of them did not have unanimous consent, but that did not stop them from passing second reading and going to committee. I believe that is the wise thing to do.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Madam Speaker, I will be sharing my time with the member for Etobicoke North.

I am pleased to speak to Bill C-8, 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 bill was designed to create a regime to govern how property interests of married and common-law couples on first nation reserves would be divided after a breakdown of their marriage, but the government, when introducing the bill, misled the House by claiming that it had the approval or it consulted all aboriginal groups.

In my consultations with many native women's groups, both from Ontario and Quebec, they were appalled by the lack of consultation, the inflexibility of the consultation process and the fact that two large provinces that constitute over 50% of the aboriginal communities were left out of the consultation process.

We all know we do not question the need for legislation to address the very real problems when family breakdown occurs for Canadians living on reserves. However, the Conservative government failed in its constitutional duty to consult the aboriginal groups in the development of the bill.

I am appalled by the fact that NDP claims it will support the bill.

I come from the colonial era so I know what colonialism is and I can see the Conservatives moving toward that era. However, for a party that claims to support human rights, I am absolutely appalled when women themselves claim that this would violate the Human Rights Act and they have given me a litany of articles that have been violated.

I cannot understand why anyone would stand up and support the bill. If we leave this proposal on the table, there cannot be substantive changes or discussions because we limit the ability of the aboriginal communities to discuss or make substantive changes. The bill needs to be hoisted for six months and we are calling on the government to do it so that it can use its time to properly consult without forcing its own opinions on a community that has not been consulted.

The Native Women's Association of Canada has stated that this is not the right bill. As I was listening to the presentations, I heard the NDP say that this would allow the Native Women's Association to present. However, if it presents and there is a violation, 60% of the recommendations of the Grant report have not been addressed, it demands that these aboriginal women who are living on the reserves need to have those amendments made, how can the government claim that it will be able to amend this bad bill? A bad bill has to be thrown out. Therefore, it is important that we do consult.

Let us look at the history behind this. In 1986, during the era of the Mulroney Conservative government, the Supreme Court of Canada ruled that when a conjugal relationship breaks down on reserves courts cannot apply provincial or territorial family law because reserve lands fall under federal jurisdiction. As a result, aboriginal women living on reserves have not enjoyed the same rights as women living off reserves. They are not entitled to an equal share of matrimonial property at the time of a marriage breakdown. Matrimonial real property, MRP, refers to the house or land that a couple lives on while they are married or in a common-law relationship.

Since the 1986 Supreme Court ruling, the gap in the law has had serious consequences. When a marriage or relationship ends, the courts have no authority to protect the MRP interests of spouses living on the reserve. As a result, spouses living on the reserves cannot ask the courts to grant an order for temporary or permanent possession of the family home even in a situation of domestic violence or when the spouse has custody of the children, or order partition or sale of the family home to enforce an order of compensation from one spouse or the other, or preclude a spouse from selling or mortgaging the family home without the consent of another spouse.

The Native Women's Association of Canada and the Assembly of First Nations have been highly critical of the bill. I would like to ask all parliamentarians to listen as they represent the majority of the groups. If we do not want to listen to them and impose a bill on them, then what are we here for? We are living in an ivory tower trying to impose laws on people who have not been consulted and this is a violation of the fundamental constitutional rights of the aboriginal people.

They strenuously argue that the government failed to live up to its constitutional duty to consult first nations on a law that would directly impact their right to manage reserve lands. There is a concern for the first nations women and girls who are four times more likely to be physically or sexually assaulted than any other women in Canada. Their suicide rate is three times the national average as is their likelihood of contracting AIDS. They are less healthy, poorer and more likely to have addiction problems. There cannot be another group in Canada more vulnerable and with fewer alternatives than women living on reserves.

Why is the government and those who are supporting this bill supporting keeping native women in the back rooms, poorer and uneducated? The bill does not address their rights nor does it address any of the socio-economic problems.

In her report, the Auditor General stated that INAC, which did the consultation process, had no cultural sensitivity to the aboriginal communities and that the consultation that was done under INAC was not driven by consulting the larger groups of aboriginal communities. The “father knows best” is not an approach here. I think parliamentarians need to understand that when they bring in a bad bill they should have the will to apologize for the bad bill and withdraw it. Instead, they are putting themselves in a position of no return to the detriment of the aboriginal communities.

Many first nations communities have come to us to say that it is contrary to the RCAP, which is the Royal Commission on Aboriginal Peoples, and that it violates their jurisdiction. They say that it is inconsistent with the inherent rights of self-government recognized in section 35(1) of the Constitution Act, 1982.

First nations people have the right to exercise their jurisdiction and govern themselves without federal legislation. I heard from the NDP member that they would be given the right to put forward whatever bills they have, but the NDP misses the point. The first nations consent is also required. The federal government takes the position that it consulted with the Assembly of First Nations and Native Women's Association of Canada, however, the duty to consult cannot be delegated and the obligation rests with the federal government to consult the rights holders, first nations communities and their representatives.

The other thing aboriginal groups have told us is that the bill violates the United Nations Declaration on the Rights of Indigenous Peoples and that Bill C-8 blatantly violates the following sections: article 3, article 5, article 8, article 21, article 22, article 27, article 33 and article 34.

With such a bad bill that has no support from any of the aboriginal communities, and I have the Grant report here, how does the government and the other opposition parties think that by sending the bill to committee they will be able to make any substantive changes? They will not.

[Libby Davies, NDP, Vancouver East, BC]

Madam Speaker, I listened very carefully to the member's comments, and frankly I am flabbergasted, knowing that she was in the House and asked the member for Nanaimo—Cowichan whether or not the NDP supported the bill and she got a clear answer from our aboriginal affairs critic that we do not support the bill, that she would now stand up, moments later, and completely misrepresent that.

Let us be very clear. The NDP is opposed to the hoist motion that is before us right now because we think there should be an opportunity for the committee to deal with the bill, change it, fix it and hear witnesses.

I am surprised to hear the member so blatantly misrepresent what she herself heard 20 minutes ago. I would like her to correct the record and go back to what she heard from the member for Nanaimo—Cowichan.

The second question I have for the member is this. I agree that this is an issue that is very critical and needs to be dealt with in a way that is respectful of first nations, but it kind of begs the question, if that is the case and if the member believes that, why on earth did the previous Liberal government leave it unresolved for 13 years?

That court decision was in 1986. If I remember correctly, the Liberals came back into office in 1993 and were there for the next 13 years. They did not deal with this issue. Today they are ready to abdicate the responsibility of the committee to deal with this issue. Maybe the member could comment on that.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Madam Speaker, I thank the hon. member for her question, but I think it reeks of hypocrisy.

Either the NDP is opposed to the bill or accepts the bill. In our parliamentary process, if we approve the bill now, and it is fundamentally flawed, it cannot be substantively changed in committee. Parliamentarians should know that and so too the hon. member because she has been in Parliament for a long time. Therefore, the debits and credits do not match.

If the hon. member opposes the bill, then she should vote against it and allow for proper consultation. That is the basic framework.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, the issue that has just been raised is very fundamental. When we pass a bill at second reading, we do get approval in principle, the fundamental principle of the bill, and fundamental principles cannot be changed at committee. I know that the members who are suggesting we send it to committee are thinking that maybe this is a political opportunity to simply bring witnesses, try to embarrass the government, and demonstrate how bad it is. However, we can do that right now in debate.

I believe that we should not give any indication whatsoever that there is any form of support for this fundamentally flawed bill. I wonder if the member would care to comment on that.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Madam Speaker, I totally agree with the hon. member. This is a flawed bill. There is no support for the bill in aboriginal communities. All aboriginal communities have told us they do not agree with the bill. It is so flawed that it cannot be changed, including the principles of the bill. If any members are under the illusion that it can be substantially changed at committee, they are under a false pretext or they are hiding their heads in the sand. Let us reject the bill and ensure proper consultation takes place.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Madam Speaker, I support the amendment of my hon. colleague.

Although September 13, 2007, will be celebrated as a day when indigenous people and the United Nations moved to reconcile painful histories and resolved to move forward respecting human rights, it will not be remembered so here in Canada.

The UN Declaration of Rights of Indigenous Peoples was adopted by an overwhelming majority vote of 144 to 4 member states, opposed only by Australia, Canada, New Zealand, and the United States. It was the first time that Canada sought to be exempted from a human rights standard adopted by the General Assembly.

I am compelled to speak out against Bill C-8 as I strongly believe it is fundamentally flawed. It violates numerous provisions of the UN declaration, including control of membership in accordance with tradition, protection against cultural assimilation, and right to self-determination.

It is inconsistent with first nations' right to self-government, recognized in the Constitution, and is contrary to first nations' jurisdiction over family law, recognized in the Royal Commission on Aboriginal Peoples.

The government must not interfere in first nations' right to self-determination and must not attempt to justify its intrusion in any way, in this case saying the Indian Act does not address matrimonial property and provincial legislation does not apply. It is up to first nations to identify gaps in laws and address them as they see fit by their own law-making initiatives.

As it stands there is tremendous concern that Bill C-8 will undermine grassroots action and increase the legislative gap, not eliminate it.

Wendy Grant-John, the ministerial representative, tabled a report in 2007 that stated, “Unilateral, imposed federal legislation was not the proper way to proceed”. Recent court cases support her conclusion, namely that the federal government cannot unilaterally enact legislation that has the potential to affect or infringe aboriginal or treaty rights' interests without first consulting first nations.

Although the consultation process consisted of a planning phase, June 2006, a consultation phase, September 2006 to January 2007, and a consensus building phase, February 2007, the process was considered largely to be information sessions rather than serious consultations by first nations who want to protect and preserve their lands for future generations.

A second concern is that most first nations do not have the capacity to develop the local bylaws referred to in Bill C-8. More disturbing, however, is the fact that these local bylaws can only occur under a federally approved verification officer, a throwback to the Indian agent of the 1950s and wholly inconsistent with the inherent right to self-government. One chief said to me that he feels as if he is living through the residential school system again, a system which destroyed his family.

A third concern is that Bill C-8 does not recognize traditional first nations governments and procedures related to matrimonial property rights, such as traditional forms of dispute resolution involving elders.

Domestic violence is another serious issue that must be addressed as part of the search for solutions to matrimonial real property issues on reserves. Family violence in first nations communities has been described as a consequence to colonization, forced assimilation and cultural genocide.

Bill C-8 would force people with matrimonial real property, or MRP, issues to hire lawyers and utilize the courts, which would undermine the cultural integrity of first nations, and increase family and community discord. First nations want to ensure that their children have an opportunity to live in their communities and learn their culture and language.

The bill creates the appearance of action while leaving underlying socio-economic problems such as inadequate housing, substandard education and unemployment unaddressed.

First nations estimated a housing shortfall of 80,000 units on reserves in 2005. The federal government estimated the shortfall between 20,000 to 35,000 units. Based on current funding levels, it could take anywhere from 15 to 60 years to resolve current housing problems. Chronic housing shortages on reserves have, in turn, resulted in overcrowding.

Just this past week, Sandy Bay Ojibway First Nation buried five-year-old Tristan Mousseau, who perished in a blaze that destroyed a three-bedroom residence, home to 11 people. Tragically, it was the second time in three months that a child died in a house fire on the reserve of about 3,000 people.

Unfortunately, when first nations couples separate, the lack of affordable alternative housing often further breaks families apart, as one spouse and some, or all, of the children are forced to leave their community to seek available housing.

Not only does Bill C-8 violate the UN Declaration on the Rights of Indigenous Peoples but also the Constitution and the comprehensive recommendations of the Royal Commission on Aboriginal Peoples. Moreover, it is largely and strongly opposed by first nations.

Ontario Regional Chief Angus Toulouse wrote:

--the federal government reintroduced legislation on Matrimonial Real Property (MRP) on reserve. The text of the new Bill C-8 is exactly the same as the previous Bill C-47, which was condemned by Resolution 08/66 at the All Ontario Special Chiefs Conference on November 18, 2008. First Nations in Ontario have clearly expressed opposition based on the fact that the federal duty to consult and accommodate First Nations has not been met and further, that the Bill does not respect Aboriginal and Treaty rights as confirmed in the Constitution of Canada...the First Nation position is that the Bill should be opposed at introduction.

First nations organizations, including the Assembly of First Nations, Chiefs of Ontario and Nishnawbe Aski Nation, have passed resolutions opposing Bill C-8.

On March 26, NAN Deputy Grand Chief RoseAnne Archibald together with the NAN Women's Council and more than 80 women from 49 communities united in a peaceful demonstration to demand the Government of Canada withdraw Bill C-8. Some of the women carried signs which read:

Residential School, Sixties Scoop, Now Matrimonial Real Property; Accommodat2on, Consultation, We Were Not Accommodated with Regards to Bill C-8; and Listen to Our Grandmothers and Elders.

I wish I had time to identify the over 20 recommendations made by the ministerial representative and the federal response to each regarding Bill C-8. The words “not addressed” would occur repeatedly.

In closing, I would like members to know that prior to my serving this House, I had the honour and privilege of serving on a first nations board. Each time I sat down with elders and band members, I learned so much. I learned to listen and not to talk unless I held the talking stick. I learned to smudge or brush smoke from burning cedar, sage or sweetgrass to my body to cleanse my spirit. I learned that elders are vital to any community and was glad to learn at their knees and partake in ceremonies. I learned that before any meeting, a chief would call upon the grandfathers and ask for help because we do not have all the answers.

It is time that first nations hold the talking stick and that government listens.

[John Duncan, Conservative, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development]

Madam Speaker, the member talked about consultation. There was considerable consultation on the bill, with 103 different meetings and multi-millions of dollars spent. A lot of work was done with the Native Women's Association of Canada, the Assembly of First Nations and with other organizations. Bill C-8 would address a big vacuum in the law, and everyone knows that.

Is the member aware that in 2008 a submission was made by the Canadian Feminist Alliance to the report of the Committee on the Elimination of Discrimination against Women? It said that despite some disagreement in the aboriginal women's community about how to deal quickly with this bill, this was a straightforward issue and should be dealt with immediately.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Madam Speaker, I think there is consensus in the fact that all first nations women's groups are opposed to the bill. Moreover, the bill does not meet the requirements of the UN declaration, which the government did not sign. The Conservative government was one of only four governments not to sign the declaration, and that number is now down to three.

The bill also does not meet our Constitution.