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

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

Madam Speaker, I am very pleased to stand and support Bill C-8, the Family Homes on Reserves and Matrimonial Interests or Rights Act.

My concern in all the developments today on this bill is that we are losing sight of the objective. The objective is that we have a legislative vacuum. There are vulnerable people, families and children, who are not covered by any legislation. When there is a marital or common-law breakdown on reserve, this is a problem.

I very much appreciated the question posed by the member for Simcoe North just a minute ago to the Bloc member, because the bill encourages the development of marital breakdown laws at the band level, and it can be done without any requirement or need for ministerial sign-off. Right now, unless first nations are under a self-government agreement, this is very problematic.

As we know, there are 630 bands in Canada. So we need to be concerned about that. Somebody has to take leadership, and the government is taking that leadership. This is what concerns me so much about the hoist motion by the Liberal Party on this bill, because the adoption of the hoist amendment would have the same effect as killing the bill. That is simply inappropriate.

This legislation is the product of a comprehensive process of consultation, collaboration and compromise. Officials from key stakeholder groups, including the Assembly of First Nations, the Native Women's Association of Canada, the first nations' Lands Advisory Board, the provinces and the territories, actively participated in the process.

We keep hearing that there was no meaningful consultation. There was $1.7 million provided to the Assembly of First Nations regarding consultation on this issue. There was $1.7 million provided to the Native Women's Association of Canada for further consultation on this issue. There were moneys provided to other aboriginal organizations for consultations on this issue. There were consultations in more than 100 jurisdictions across Canada on the need for this type of legislation.

On the very same day, the aboriginal affairs committee heard testimony from witnesses who congratulated the government on its approach to drafting the legislation on the Cree-Naskapi (of Quebec) Act, and by the way, we approached the drafting of this bill in the same way. We were given kudos for the way we handled it in the Cree-Naskapi amendments and we are being criticized for handling it in the very same way on Bill C-8, the bill we are talking about regarding matrimonial real property.

So I am finding the position of particularly the Liberal Party to be very inconsistent in terms of its approach in this Parliament. However, its approach is very consistent. It fought all the way on the human rights amendments to the legislation in the last Parliament by which our first nations brothers and sisters were put under the Canadian Human Rights Act, the same as other Canadians. That was firmly opposed by the Liberal Party in the House, and now it is doing, in my opinion, the very same thing.

This is an issue of human rights, of protecting some of the most vulnerable people in society. We are trying to get there and the Liberals are trying to kill the bill.

The NDP and the Bloc are much more realistic in that they want to debate it and have witnesses at committee. I think that is most appropriate, and we would like to do that too.

Maybe it would help to explain a little bit of the complexity of what is going on, why Bill C-8 is so necessary in the context of people living on reserves and the legal complexities at play.

To begin, the bill only addresses interests or rights regarding family homes on reserves and other matrimonial interests or rights in or to structures or lands on reserves. It does not address other matrimonial property, including items such as furniture, cars and off-reserve properties, as provincial and territorial family laws apply to such property.

It is also imperative to have a basic grasp of one unique legal aspect of reserve lands, and that is the collective interest. Under the Indian Act, reserve lands are held collectively and are set aside for the use and benefit of a first nation. In the rest of Canada, land holdings are primarily based on individual ownership. Other legal concepts such as rights, title and interests, must be interpreted in light of the first nations collective interest in land on reserves. All these concepts can come into play when on-reserve couples separate.

Along with the collective interest in reserve land, many houses and other structures on reserves are often communally owned. According to most estimates, up to three-quarters of all on-reserve housing units are owned collectively. Occupants typically rent space in the units from first nation councils. In some cases, individuals purchase or build a house on first nation property. It varies greatly from one community to another. I know communities where 100% of the housing is actually individually owned.

First nation membership often adds another level of complexity. All members of the first nation have an interest in community-owned lands and properties. When married couples living on reserves separate, these and other factors complicate the division of property and interests, of course.

Bill C-8 proposes a clear set of rules to address this complex matter. Under this legislation, couples living on reserves would be able to access a range of rights and remedies similar to those available to couples living off-reserve, through a provisional federal regime.

The bill also contains provisions for first nations to create their own regimes, to adopt laws governing the use, occupation and possession of family homes, for instance, along with other on-reserve matrimonial interests and rights.

Members of the House know all too well that this legislative gap has continued far too long. Legislation in this area is long overdue. The provisional federal regime included in Bill C-8 addresses pertinent issues that, along with other changes, will grant spouses living on reserves an equal right to occupy the family home, prevent one spouse from selling or mortgaging the on-reserve family home without the consent of the other spouse, enable a court to issue emergency protection and exclusive occupation orders on an urgent basis, particularly in instances of domestic violence, and ensure that divorced or separated spouses share equally in the proven value of matrimonial interests and on-reserve properties, including family homes.

Furthermore, when a spouse or common-law partner dies, Bill C-8 will enable the surviving spouse to occupy the family home for a specified period of time and to apply for half the value of matrimonial interests.

Finally, in cases where both spouses have signed written agreements on these matters, the legislation will enable the court to enforce these agreements.

This legislation protects not only the rights of individuals, but also the collective rights of first nations. With the exception of emergency protection and confidentiality orders, whenever an application is made under the bill, the first nation may make representation to the courts about the cultural, social and legal context relevant to the proceedings.

Finally, the proposed legislation also includes provisions for the enactment of community-specific laws in this area. Consistent with the democratic process, the first nation members must support the proposed law through a community ratification vote before it can become a first nation law. As I explained earlier, this can all occur and is enabled by this legislation without ratification by the minister. The minister is not involved, assuming the bill is adopted.

The proposed legislation offers a thoroughly researched, judiciously balanced solution to a long-standing problem. Bill C-8 would have a positive and tangible effect in first nations communities. It would close a legislative gap that erodes public faith in our justice system and it would engage first nations in the development of laws that satisfy the needs of their members.

I am confident that once my hon. colleagues study Bill C-8, they will join me in supporting it. We will see about amendments. We have not closed any doors. I am sure this will be a long exercise but it is one that we should look forward to and embrace because we are doing something very important in terms of human rights and in terms of protecting the most vulnerable in society.

There is no area where the federal government has a bigger responsibility than to take leadership in these areas. If we do not take that leadership, it would be an abdication of our responsibility. I really do not know who else can provide a nationally organized effort in this regard. It is our constitutional responsibility.

We keep hearing members of the Liberal Party say that aboriginals are totally opposed to the bill. This is something that we must think quite seriously about because we know from the consultation process that many individuals with serious concerns would support this initiative. The vulnerable individuals in the communities, however, are very reluctant to support this important bill when their leaders and aboriginal organizations are taking an opposite view. However, those are the very people we need to be concerned about. We cannot let the objective of the legislation be lost because we are having a political discourse as opposed to one that concerns itself very directly with the well-being and welfare of individuals.

A submission was made in 2008 to the UN Committee on the Elimination of Discrimination against Women from the Canadian Feminist Alliance that said:

While there is some disagreement among the Aboriginal women’s community... about how quickly the government should proceed on this issue...this is a straightforward issue requiring immediate action.

I would submit that this is a very important statement. It is much easier for women to go to a women's organization as opposed to aboriginal women going to an aboriginal women's organization if they know their position will be automatically rejected because of a political agenda. I think they made a very important statement.

Before today's press release, we had the Native Women's Association of Canada recommending that interim legislation be put into place that guarantees that first nations women will have matrimonial property rights equivalent to all other women in Canada. That is a very important statement and that is what this legislation attempts to do.

I will close on debating this hoist amendment that would have the effect of killing the bill. I believe we have ended up having discourse on the entire direction of the bill, but that is appropriate as well at this time.

[Bruce Stanton, Conservative, Simcoe North, ON]

Madam Speaker, I appreciate the comments of the hon. member from the Bloc.

I wonder if he might speak briefly on the notion that has not been discussed too much here this afternoon. That is the notion that Bill C-8 does provide an ability for first nations communities to develop their own laws to deal with this legislative gap on matrimonial real property. The bill provides that mechanism, and in fact, encourages it.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Madam Speaker, I have a press release that was released today. It comes from the Native Women's Association of Canada and the Assembly of First Nations, including the Assembly of First Nations Women's Council. They all agree that Bill C-8 will do nothing to solve the problems associated with matrimonial real property on reserve. They agree that the federal government failed in its duty to consult with and accommodate the views of first nations and that as a result the bill is fatally flawed and cannot be fixed. They recommend that it should not proceed to committee.

I ask my hon. colleague, with whom I had the pleasure of serving on the committee for a long time, why he thinks it will be useful to send it to committee when we know the major stakeholders strongly oppose the bill, they do not see it as having value for aboriginal women and they do not see it as respectful of aboriginal tradition and culture.

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

Mr. Speaker, on December 13, 2006, Commissioner David Langtry stated, even before Bill C-11 was adopted, that full human rights protection was now being extended to all first nations people and that the commission would act quickly to open discussions with those communities on how best to implement this much-needed change.

To my knowledge, “discussions“ are not “consultations“. The government does not seem to have grasped the intent of this bill. I would like to quote a passage from a report of the Standing Committee on the Status of Women:

The committee heard and acknowledged that “the lack of a legal regime to govern the disposition of matrimonial real property on reserves is… the tip of a much greater iceberg“ and that “the legislative gap in respect of the matrimonial real property rights on reserve lands is exacerbated by chronic housing shortages that exist on most reserves and difficulties in securing financing to purchase or construct alternative housing on reserve…“

Because of this, women will continue to be forced to leave their communities while waiting for an effective solution to the housing shortage and the full implementation of the right to self-determination. The government fails to recognize this and remains apart from other countries by refusing to support the United Nations Declaration on the Rights of Indigenous Peoples. This situation has existed for two decades and has never been corrected.

In June 2005, the Standing Committee on Aboriginal Affairs and Northern Development tabled a report in the House. Its first finding recognized the importance of the matter of matrimonial real property to the residents of reserves, and, specifically, first nations women and children.

The committee recognized the great complexity of the issues. It also realized that, while immediate action was required, it was imperative that all recommendations be consistent with the government’s recognition of the inherent right of self-government by recognizing first nations’ authority over on-reserve matrimonial real property. The committee felt that any action needed to be taken in consultation and collaboration with first nations.

That was in 2005. Today, because the bill was neither developed in consultation with first nations as they wished, nor referred to the committee before second reading, the Assembly of First Nations considers that it has been so botched that it is practically impossible to put it right after this second reading. In addition, the impact studies conducted on the communities affected by BillC-8and the measures they contain to encourage the development of the communities' own laws on matrimonial homes have not been submitted to either the Assembly of First Nations or the Standing Committee on Aboriginal Affairs and Northern Development. The Assembly of First Nations and the Native Women's Association of Canada want the bill to be defeated.

Like the Native Women's Association of Canada and the Assembly of First Nations, the Bloc Québécois agrees with the idea of this bill, but not with its content or the way in which it has been put together. We feel that it is critically important for the communities and, for that reason, it should have been studied.

What difference is there between Bill C-44, which became Bill C-21, and Bill C-289, which is now Bill C-8? For me, there is no difference except that Bills C-44 and C-289 died on the order paper, and in all cases there were no prior consultations. They also have in common the almost unanimous protest against the method in which they were drawn up and the non-aboriginal view of aboriginal real property. I say “almost unanimous“ because the only person not in agreement at the time is now a senator.

This bill, like the ones that went before and the ones that will come after, should have been the result of consultations with first nations, as agreed by the Martin government and the first nations in May 2005. For this bill in particular, the provinces, the territories, the committees of Parliament and the report of Wendy Grant-John, the ministerial representative for matrimonial real property issues on reserve, all should have been consulted.

Unfortunately, this was not the case. The few consultations that were held left participants bitter. They saw them as charades at which they wasted their time. None of their recommendations were accepted, yet the implementation has to be done within their culture and under their administration.

This government should perhaps mention that this bill resulted from discussions with some first nations organizations, the ministerial representative, the provinces and the territories in the summer and fall of 2007. The government should not use the term “consultation“ at all.

Once more, the Native Women's Association of Canada, the Assembly of First Nations and the Assembly of the First Nations of Quebec and Labrador oppose this bill because it is fundamentally flawed and practically impossible to correct after second reading. In June 2006, in its report to the House, the Standing Committee on the Status of Women wished to see concrete progress on the issues relating to matrimonial real property rights of first nations women, issues linked to violence against women. It quoted Beverly Jacobs from the Native Women's Association of Canada:

It's not just in first nations communities. We know it's happening all across the country. It's in Canadian homes where women are being abused. We are taking the brunt of it, and I'm tired of it. As a first nations woman, as a Mohawk woman, I'm tired of hearing this. I feel it's my responsibility to make sure it doesn't occur any more. My daughter is 23, and she also had to live through that. I have grandchildren, and I don't want them to live through it. I don't want them to see violence.

The housing problem is still not solved today. In 2001, the government introduced Bill C-289 despite recommendations to the contrary. Here we are again today with Bill C-8, once more with no consultation or collaboration with aboriginal groups.

Aboriginal peoples, particularly women, would be in favour of this legislation which will put an end to centuries of discrimination and inequities enshrined in the Indian Act and visited upon aboriginal women. They do not want to see these errors corrected by another that would be just as serious, if not more so, than the existing one. This error must be corrected on their terms and in a way that is consistent with their lifestyle and their culture. Above all this legislation must not be the outcome of a unilateral decision by the federal government, which has increasingly demonstrated its ignorance of aboriginal values and of the non-legislative measures inherent in the enforcement of any act or regulation.

There are many irritants. I will mention some of them. First, no non-legislative measure is mentioned. Second, there is a lack of information with regard to the implementation of an action plan. Third, there is also information missing as to resources available to the first nations to develop their laws or the regulations of Bill C-8. Fourth, as mentioned previously, there is a crying need for housing. This situation is in itself sufficient to make this bill's provisions unworkable. Indeed, how, in the case of marital breakdown, can one guarantee decent housing to each of the parties in question? Fifth, this legislation refers to legal proceedings that will lead to trials to clarify the bill's ambiguities. Most of the members of these communities cannot undertake such legal proceedings, because they cannot afford them.

Deputy Grand Chief RoseAnne Archibald, Ontario representative to the Assembly of First Nations Women's Council, stated in June 2006:

We are not convinced that the bill as it stands is going to help First Nations women access justice. Let’s be clear, First Nations women and families have waited too long already for equitable and workable solutions and this bill is at best a half-way measure.

After all the consultations, and presentations and drafting of reports: the government didn’t listen to our women. In fact, I was one of those women they consulted. Yes they asked for our opinion, but the bill does not reflect what we told them. What they’ve drafted is very much a made-in-Ottawa Bill.” .

The Assembly of First Nations Women's Council sees four problems in the bill as it is drafted. It will in the final analysis force first nations women to seek recourse before provincial courts. For many women who live in remote communities, this solution will not be financially viable, among other things because of the time that this would take.

During the consultations, the first nations women asked that matrimonial real property rights be framed from the perspective of their own cultural values and traditions, and not from within the framework of federal or provincial regulations which they did not have a hand in preparing.

Rather than recognizing the authority of first nations, the bill sets out how first nations regulations should be developed, according to a complicated process that makes no provision for supporting first nations participation. In the final analysis, the bill will impose a complex bureaucratic system which will offer no support whatsoever for its implementation.

For matrimonial real property rights to be meaningful, the women told us that the government should see to it that accessible and safe housing be made available.

With regard to the situation in Quebec and Canada, Ms. Wendy Cornet, Special Advisor to the Department of Indian Affairs and Northern Development, stated, when she appeared before the Standing Committee on Aboriginal Affairs and Northern Development on March 24, 2005, that:

The common functions of provincial and territorial matrimonial property law are, firstly, defining what personal and real property of spouses is considered matrimonial property within a given jurisdiction; providing a system of rights and protections in relation to matrimonial property on a mandatory basis to married couples; and thirdly, establishing—as all jurisdictions do—a legal presumption of equal division of matrimonial property on marriage breakdown, regardless of which spouse owns the matrimonial property. This last function usually means that a compensation order can be issued by the court, requiring one spouse to pay the other an amount of money to achieve an equal division of matrimonial property—and the couple's assets and liabilities that constitute matrimonial property are taken into account in determining this.

However, in some important policy areas, provincial and territorial laws vary significantly from one jurisdiction to another, in particular regarding the treatment of the following subjects: common-law relationships; same-sex relationships; matters relating to rights upon death of a spouse; and family violence. Some jurisdictions have passed family violence legislation that provides a package of remedies, including interim orders respecting matrimonial real property. Other jurisdictions do not have specific legislation addressing family violence. And finally, another matter in which you find some variance is the treatment of matters relating to support and the matrimonial home.

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. However, the Indian Act is silent on the question of matrimonial property interests during marriage and on marriage breakdown. The Indian Act does not provide for, or recognize, a law-making power on the part of first nations in regard to matrimonial property, real or personal.

There are other issues that must be taken into account on reserves. For instance, many first nations do not use the Indian Act system of individual allotments of reserve lands, for example, by issuing certificates of possession, and instead use systems of custom allotment. An individual's status as an Indian as defined under the Indian Act makes them a band member and can affect property interest in and on reserve lands. For example, individuals who are not band members cannot hold certificates of possession.

It is clearly inconsistent on the part of the Canadian government to go forward with this bill, since it committed itself on May 31, 2005 to strengthening cooperation on policy development between the Assembly of First Nations and the federal government. Here is an excerpt from that agreement:

Whereas the Prime Minister, at the April 19, 2004 Canada - Aboriginal Peoples Roundtable, stated, “It is now time for us to renew and strengthen the covenant between us”, and committed that “No longer will we in Ottawa develop policies first and discuss them with you later. The principle of collaboration will be the cornerstone of our new partnership.”

Clearly the government is not keeping its promise.

It is not rocket science: there must first of all be discussions on the process whereby participation of the Assembly of First Nations in the development of federal policies that have specific repercussions on AFN members can be increased, in particular in the areas of health, skills development, housing, political or economic negotiations and results-based accountability.

Second, they have to address the human and financial resources, as well as the accountability mechanisms needed to encourage the Assembly of First Nations to become more involved in policy making.

That is pretty clear, and I encourage the members to read the remarks I have made in this House since 2006. It should be noted that I have to remind the government of that every time we discuss relations with the first nations. That is not normal.

To conclude, I will give the opinion of the Bloc Québécois, which is sensitive to what is happening in aboriginal communities. The Bloc, like aboriginals, believes that the government should take action. We also take into account the recommendations of the Standing Committee on Aboriginal Affairs and Northern Development.

The Bloc Québécois expects the government to respect the political agreement. It wants to remind the government of its obligation to consult. The Bloc will ensure that implementation of this new bill does not undermine the recognition of the first nations' inherent right to self-government.

The Bloc Québécois is aware that the Native Women's Association of Canada and the Assembly of First Nations have not fully completed their own analysis of the impact of this bill on their communities. The Bloc also knows that the government has apparently not completed a new study.

We will support this bill at second reading for the sole purpose of trying to make the government understand that it has to undertake consultations and fix the bill so that it reflects the vision and culture of the first nations.

The House resumed consideration of the motion that 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 be read a second time and referred to committee.

Business of the House

[Ralph Goodale, Liberal, Wascana, SK]

Mr. Speaker, with respect to May 28 for the meeting in committee of the whole to consider the estimates of the Department of Fisheries and Oceans, I presume the government House leader, before that date, will be proposing the same procedural motion governing the rules that would apply during the course of that debate. I see he is nodding his head and I welcome that information.

My final point is simply to provide a bit of information that the government House leader may not have in respect of the hoist motion that was moved earlier today having to do with Bill C-8. He may be comforted to know that every major aboriginal organization in the country supports the hoist motion.

[Jay Hill, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, one thing that will not be on the agenda is what the Liberal leader is always asking for and that is tax increases. That certainly will not be on the government's agenda.

Today we are going to continue debate on Bill C-8, the matrimonial real property legislation. Earlier today the Liberal Party moved a six months hoist motion with respect to Bill C-8. The term “six months hoist” is a bit of a misnomer. In modern terms, the adoption of a six months hoist motion would essentially kill the bill. I am surprised at the Liberal Party. The Liberals are always saying they advocate for women's rights. This legislation is about aboriginal women's and children's rights on reserve, and yet they are trying to kill the bill.

Following Bill C-8, we will call Bill C-20, the nuclear liability legislation, and Bill C-30, the Senate ethics legislation. All of these bills are at second reading.

Tonight, pursuant to Standing Order 81(4), the main estimates for the Department of Agriculture and Agri-Food will be considered in committee of the whole.

As was noted, next week is a constituency work week for members of Parliament when they will be returning to their constituencies to work hard.

When the House returns on May 25, we will continue with business from this week, with the addition of any bills that are reported back from the standing committees.

Added to the list of business is Bill C-23, the Canada-Colombia free trade agreement, and Bill C-19, the investigative hearings and recognizance with conditions legislation.

Pursuant to Standing Order 81(4) I would like to designate May 28, 2009 as the date for consideration in committee of the whole of the main estimates for the Department of Fisheries and Oceans.

Family Homes on Reserves and Matrimonial Interests or Rights Act

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

Madam Speaker, allow me to point out that this morning we had the opportunity to meet with a first nations community which, for the first time since I was elected, underscored the fact that the negotiations between the government and their nation are being conducted in good faith. You had to see the satisfaction of these people and how pleased they were to accept this agreement. They do not think it is perfect; however, they were consulted and they contributed to the agreement. With this agreement, good faith and collaboration with the government they will achieve autonomy.

I am certain that we are seeing this approach for the first time. Unfortunately, it has already fallen by the wayside. We see this from studying the bill before us this morning. In this bill, the government has gone back to its old habits. It is developing something for the first nations that they do not want. They want to collaborate, to be consulted and to contribute to this agreement.

With Bill C-8, the government is making the same mistakes it made in the past. In January 2004, we debated Bill C-44, the forerunner to Bill C-21. Although it wanted section 67 of the Canadian Human Rights Act to be repealed, the Bloc Québécois declared that it felt that the government had not sufficiently consulted the first nations about the impact of the repeal on the communities.

The Bloc was supported by the Assembly of First Nations and the Native Women's Association of Canada.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Madam Speaker, Bill C-8 is inconsistent with first nations right to self-determination, which is recognized in our Constitution. It is contrary to first nations jurisdiction over family law, which was recognized by the Royal Commission on Aboriginal Peoples.

I would like to stress that it is up to first nations to identify gaps in laws and address them as they see fit in their own law-making initiatives.

[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 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.

[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.

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

Madam Speaker, my colleague is interested in women's rights no matter what their racial background, and I am sure he supports them very much.

Any bill that comes up for debate in a territory, province or country seldom receives unanimous support. As I mentioned in my comments, there has been wide consultation. Some of the native women I have talked to in my riding support the bill.

I would point out to the hon. member across the way that just because a bill does not receive unanimous support does not mean it is not a good bill. He should consider that when he stands up to vote, I hope in favour of Bill C-8.

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

Madam Speaker, on behalf of aboriginal women on two reserves in my riding of Bruce—Grey—Owen Sound, I want to voice my support for Bill C-8, the family homes on reserves and matrimonial interests or rights act.

The bill offers a practical effective solution to the long list of legal and technical issues related to on-reserve matrimonial real property. These issues have been the focus of much study, consultation and discussion in recent years. A review of the many published reports reveals several common themes and recommendations for action. These ideas helped shape the legislation now before us and, taken in their entirety, are a compelling, even overwhelming, argument for voting in favour of Bill C-8.

While other hon. members addressing the legislation have focused primarily on technical issues, I will adopt a different approach. I propose to outline the key findings of recent matrimonial real property research and consultation and link them to Bill C-8. This approach will demonstrate the considerable value of the legislation now before us.

I will begin with the findings of several United Nations committees. Canada is an active participant not only in the United Nations itself but also in several UN conventions and organizations. A report published in November 2005 by the United Nations Human Rights Committee touches on the issue of matrimonial real property. Among the report's recommendations is one which suggests that Canada:

--should, in consultation with Aboriginal peoples, adopt measures ending discrimination actually suffered by Aboriginal women in matters of reserve membership and matrimonial property, and consider this issue as a high priority.

A second body, the UN Committee on Economic, Social and Cultural Rights, issued a similar call to action. This group called on Canada to develop a solution in consultation with the communities concerned.

Of course, there is also a long history of calls for reform from within Canada. In 1988, for example, the province of Manitoba launched an inquiry into the justice system's treatment of aboriginal peoples. The inquiry's final report identified a host of issues, including the lack of an effective regime dealing with on-reserve MRP.

The 1996 report of the Royal Commission on Aboriginal Peoples also examined the issue of matrimonial rights. The report recommended that:

Aboriginal nations or organizations consult with federal, provincial and territorial governments on areas of family law with a view to

(a) making possible legislative amendments to resolve anomalies in the application of family law to Aboriginal people and to fill current gaps...

While all of these reports included calls for a legislative solution to the issue of matrimonial property rights, there was, however, no clear consensus on how such legislation should be structured. Various options, such as amendments to the Indian Act, stand-alone legislation and the application of provincial and territorial laws have all been advanced.

Three parliamentary committees considered the challenges associated with potential legislative approaches to on-reserve matrimonial property rights.

The Senate Standing Committee on Human Rights, for example, staged a series of hearings and published an interim report in 2003. The report, titled, “A Hard Bed to Lie In: Matrimonial Real Property on Reserve”, included a number of pertinent recommendations, including legislation that would validate matrimonial laws developed and implemented by first nations. The report also called on government to transfer money to aboriginal women's groups for the purpose of conducting thorough consultations on the issue.

Three years later, the Standing Committee on Aboriginal Affairs and Northern Development launched another study and considered the testimony of more than 30 witnesses. The committee's report, “Walking Arm-in-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property”, determined that, to be effective, MRP legislation must be developed in consultation and collaboration with first nations. The committee also stated that any legislation must balance individual equality rights and collective first nations rights.

Recommendations for consultation and legislative change were echoed in the report of the Standing Committee on the Status of Women in June 2006.

The guidance provided by parliamentarians expressed in the studies that I have cited forms the core of this government's strategy on matrimonial property rights. This government did in fact provide over $8 million to the Native Women's Association of Canada and the Assembly of First Nations to carry out a consultation process. A ministerial representative was contracted to work with these two national aboriginal organizations, Indian and Northern Affairs Canada, and additional stakeholders to help identify and analyze legislative options.

These consultations, along with the findings of the ministerial representative received in 2007, and further discussions, have all informed and provided a firm foundation for Bill C-8.

The solution before the House includes a mechanism for first nations to establish their own community specific matrimonial reserve property laws. This is particularly significant because it marks the first time that Parliament would recognize first nation laws in the area of matrimonial real property without qualification. There would be no ministerial powers on reserve and no opportunity for the minister to overturn first nation MRP laws.

Bill C-8 also honours calls to ensure that all first nations members have adequate input into the development of their communities' MRP laws.

Under the terms of the proposed legislation, a majority of eligible voters must vote on and endorse proposed MRP laws. This approach would also help to align each MRP law with community values and traditions.

The federal regime established by Bill C-8 would apply to those first nations that have not already established MRP laws through negotiated self-government agreements that deal with the administration of reserve lands or through the First Nations Land Management Act.

The federal regime would empower judges to order specific remedies, such as exclusive occupation orders. Under the legislation, first nations may make representations to the courts about the cultural, social and legal context relevant to most orders.

In accordance with what was heard during consultation sessions, the option of simply incorporating provincial or territorial laws regarding MRP to apply on reserves, which had been the subject of a private member's bill in an earlier Parliament, was discarded. Furthermore, non-members of a first nation would not be able to use the provisions of the proposed legislation to gain ownership of reserve lands.

Finally, Bill C-8 respects an opinion expressed repeatedly during the consultation sessions and featured prominently in the ministerial representative's final report, that the legislation must balance individual rights and the collective rights of first nation communities.

Bill C-8 proposes to fill an intolerable legislative gap that has existed for far too long. The solution contained in the legislation is both comprehensive and workable. It is the product of much research and consultation, and it responds to concerns and recommendations identified by the people likely to be most affected.

The proposed legislation offers a long overdue fix to an intolerable problem, and grants first nations the unprecedented power to develop their own laws in this area.

For these reasons, I will be voting in favour of Bill C-8. I urge all my hon. colleagues to join me in supporting this important legislation that would certainly benefit native women in my riding and many ridings across the country.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Madam Speaker, government ministers have repeatedly claimed that the Declaration on the Rights of Indigenous Peoples is incompatible with the Canadian Constitution and Charter of Rights and Freedoms. However on May 1, 2008, a group of more than 100 Canadian lawyers, scholars and other experts published an open letter that described the government's claims as erroneous and misleading.

Could the hon. member comment on this inconsistency and how Bill C-8 fails to meet the criteria of the declaration?