Bill S-2 (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.

[Niki Ashton, NDP, Churchill, MB]

I'd like to speak to clause 4, under “Purpose and Application”. Obviously, this is one of the problematic clauses that purport that what is being done here is okay. This is clearly not the case, as we've heard from many witnesses. It's clear that this government is not listening to first nations on a nation-to-nation basis. The Assembly of First Nations and the Native Women's Association of Canada, and many nations across the country who oppose this bill, have spoken directly to the lack of nation-to-nation consultation. Certain first nations have been heard by the ministerial representative, but as has been the case previously, their concerns have not been incorporated into this iteration of the bill, and there are certainly some key concerns.

I want to read into the record a press release from the Native Women's Association of Canada when Bill S-2 was presented.

The Native Women's Association of Canada...express their concerns with Bill S-2.... NWAC is not confident that the legislation will solve the problems associated with Matrimonial...Property [rights] on reserve; and that the current Bill fails to address many of the recommendations repeatedly raised each time this legislation has been brought forward.

Obviously, one of the real concerns here is that this is an imposition by the federal government on first nations. Janice Makokis yesterday was quoted as saying, “I want to focus my comments on how this bill is in violation of our treaties and the treaty relationship. This bill undermines indigenous laws and the inherent rights we have. Finally this bill further oppresses the roles of indigenous women within our nations.”

This bill does not solve the problems that it seeks to address and certainly some of the problems that this government has raised. We've heard this from women, communities, and families who will be affected. This government has said that the purpose of this bill was to end violence against aboriginal women. This bill has nothing to do with ending violence against aboriginal women as it provides no effective, timely access to remedy. It does not involve a national action plan. It does not address the housing crisis on reserves. It does not make any reference to funding for women's shelters. As we know, for 663 first nations, there are only 40 women's shelters. It does not allow for better access to justice, including increased funding to legal aid, especially for remote communities. It does not include financial resources to support first nation governments to actually implement the law. It does not allow access to alternative dispute resolution mechanisms which, as we know from witnesses who have brought this forward, are often critical to resolving the situation during marital breakdown.

I'd also like to read into the record, as I believe it certainly speaks to the opposition to clause 4, the statement by

Quebec Native Women:

Quebec Native Women would like to reiterate its opposition to Bill S-2... ... Bill S-2, in its present form, does not take into account the jurisdiction of First Nations over reserve property by granting jurisdiction to the provincial courts for enforcement and will not provide funding or resources to First Nations to access these provincial courts which would therefore be too costly or complex for them to use. The unilateral approach taken by the government to resolve this issue through legislation will also fail to address systemic problems such as lack of housing and violence against women in the communities.

Finally, I would like to indicate that clause 4 sets the tone and certainly makes clear the plan of this bill and obviously, the plan of this government, to impose legislation on first nations regardless of their opposition, regardless of the indication that first nations must be consulted according to section 35 and according to the United Nations Declaration on the Rights of Indigenous Peoples to which Canada is a signatory.

Therefore, we stand with the many voices of first nations, first nation organizations, and first nation women who have come out and spoken against Bill S-2, including clause 4.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you very much for accepting the invitation and for being here with us.

Let me repeat that these people are here with us to answer any questions we may have, in order to make the committee's work easier today.

Pursuant to the Order of Reference of Wednesday, April 17, 2013, we will be conducting a clause-by-clause study of Bill S-2, 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.

Pursuant to Standing Order 75(1), consideration of the Preamble and Clause 1, Short Title, is postponed. We will look at them after we study the bill.

(Clause 2—Definitions)

Ms. Crowder, you have the floor.

[Chief Lloyd Phillips, Chief, Mohawk Council of Kahnawake]

Thank you very much to the committee members.

I have to condense my presentation very quickly here.

My name is Lloyd Phillips. I've been a chief for over 14 years in the Mohawk community of Kahnawà:ke, one of the larger first nations communities in Canada, with approximately 8,000 people living on reserve and another 4,000 living off.

Our reality is much different. We are located 15 minutes from downtown Montreal, so issues of poverty, lack of housing, and access to resources are not our main issues. Our issues are jurisdiction and the respect for our treaties and inherent rights, which we never surrendered.

It was presented yesterday here at the committee, from the Iroquois caucus as well as a couple of my fellow Mohawk communities, the way Bill S-2 continues to violate our original treaty relationship with the Two Row Wampum and the way it ignores our constitutionally protected and inherent right to self-determination. The Mohawk Council of Kahnawà:ke certainly endorses and supports these principles. We also heard many technical and legal representations from Madame Audette and many others in the past few days, and again we agree with many.

The fundamental problem here is the way in which this law is once again being imposed upon our people, without respect for our history, for the treaties that existed, for the fact that we never surrendered our rights, that we never surrendered the right to self-determination, as an overriding importance. It's the continual, paternalistic approach of government, where the Indian Act mentality going back to the 1800s, and even the mentality going beyond the 1800s, into the 1600s and 1700s, continues, despite issues that have been raised over and over again.

Our council was very hesitant to actually have me come here today, because to a certain extent we felt, what's the point? No matter what we say here, this government, the Conservative government, is going to continue on its way and pass laws the way it chooses to pass laws. Its track record speaks for itself. It's the continual way in which this government has been acting, and it's the policies, not just of the Conservative government, which is currently in power, but the Canadian system as a whole. You have policies that ignore jurisdiction. Any jurisdiction discussed between first nations and Canada is based on a policy or it's based on a surrender of your rights if you want to have a land claim settlement. These are fundamentally wrong. Canada is ignoring our constitutional rights in ignoring the treaties, and ignoring them on a moral level as well.

There's a long history out there, a proud history that the Mohawks and other first nations have. They actually helped defend what is now Canada from the invading people, the Americans. Without the allies of first nations such as the Mohawks, Canada might not exist today. The respect we get in return is almost nil.

Kahnawà:ke has a long history of making laws; we will continue to make laws. We have laws that are recognized internationally, recognized by the business community, recognized in our community. What's lacking, for the most part, is recognition from the federal authorities. We pass a law in our community and it's deemed not to be an official law unless it's stamped by Canada. This must change.

Canada has to come to terms with the fact that first nations are here to stay. Mohawks are here to stay. If you want to continue to live in peaceful coexistence, we are willing, but it takes two to peacefully coexist.

Nia:wen Ko:wa.

[Janice Makokis, Organizer, Idle No More]

Thank you.

[Witness speaks in Cree]

Good morning, my friends and relatives. My name is Janice Makokis. Thank you for welcoming me here and giving me this opportunity to speak to you today.

I was taught to introduce myself in my language to acknowledge who I am, where I come from, and the responsibilities I have as a Cree woman to the Naheo Cree laws and nation I've been born into. This action is a part of acknowledging our Naheo Cree laws, practising self-determination, and exercising our sovereignty when we belong to a nation.

Another part of exercising indigenous sovereignty is acknowledging the lands we are on when we travel to another nation's territory. I'd like to acknowledge the unseated Algonquin lands we are on today and thank them for allowing me to be on their lands to speak to you.

In my Cree language I said I'm a member of the Bear clan, and I'm from the Saddle Lake Cree Nation located in Treaty 6 territory. I am a treaty person, and I'm a descendant of Treaty No. 6, where my ancestors entered into treaty with the crown of Great Britain in 1876.

I'm an Idle No More organizer and have been invited to speak as a person involved in this movement from the beginning. I am also a treaty educator and a sessional instructor of Blue Quills First Nations College. I exercised my treaty right to education and the promises given to my people during treaty. I obtained several degrees: a bachelor's, a master's, and a law degree.

Idle No More was initiated by women and originated as a grassroots movement in response to the current suite of legislation that directly affects the lives of indigenous peoples. Specifically, the suite of legislation attacks and undermines indigenous peoples' treaties, the treaty relationship, indigenous sovereignty, indigenous title, and inherent rights that have existed from time immemorial. Indigenous peoples across Canada have gathered through various peaceful activities, such as community teachings, public rallies, and peaceful roadblocks, to make statements of opposition to this legislation.

When our nations are under threat and our traditional governance structures, indigenous laws, and ways of life are being undermined by outside forces, in this case Canada, the women have a responsibility to take a stand and do something. This is one of the reasons why Idle No More began with women.

In Cree we have a law called, e na tah maw was sew yak, which means we are to defend the children and generations. In times of crisis, this law is invoked by the women, and Idle No More is a response to that because a threat against our people's children and all of creation is imminent and very real.

One of the bills that is included within the suite of legislation that Idle No More has a response to is Bill S-2, which I'm here to speak briefly about. I'm not going to go into detail about the technicalities. My friends here have spoken to that or will speak to that.

I want to focus my comments on how this bill is in violation of our treaties and the treaty relationship. This bill undermines indigenous laws and the inherent rights we have. Finally, this bill further oppresses the roles of indigenous women within our nations.

When my ancestors entered into treaty, we were sovereign nations, and the treaty process acknowledged that. We had established governments to govern ourselves. As a treaty person, I find it arrogant that Canada thinks it can draft a piece of legislation that dictates the division of marital property on reserve lands I live on. Nowhere in the treaties did we ever say we would give up our ability to govern ourselves and practise our own laws. To have provincial laws imposed on our—

Leader of the Liberal Party of Canada

[Wai Young, Conservative, Vancouver South, BC]

Mr. Speaker, our government has introduced Bill S-2 to protect first nations women and children, but yesterday, the Liberals attempted to remove this important legislation from the Status of Women committee.

Perhaps the Liberal leader does not want women MPs from this committee to have their say on this bill. We know that he shamefully whipped the members of his caucus to vote against these protections for first nations women and children.

Unlike the Liberal leader, we believe that first nations women and children deserve the same protections as all other Canadians. Unlike the Liberal leader, we are not afraid to say that violence against women and children is exactly what it is: barbaric.

Unlike the Liberal leader, we are not in over our heads. The duly elected female members of the Status of Women committee are more than capable of handling this bill, and our Conservative government is proud to stand up for the protection of first nations women, children and all Canadians.

[Viviane Michel]

Maybe you want to hold nice consultations in the communities, but I know that you are going to pass Bill S-2 anyway, however much we tell you we are opposed to it. Your minds are already made up.

If you really want to consult, you have to do it in our language. That is very important. You also have to think in the long term, not in the short term. You cannot move quickly, but it happens each time. It is important to get first nations involved because the contact is easier then. People express themselves better in their own language. It is a big challenge for Quebec Native Women, which is trying to make women’s rights better known in the communities. Not all women know their rights, in fact.

A lot of education remains to be done in that regard. And Bill S-2 comes up once more. I feel sorry for our chiefs, but they are not always up to date. We are suddenly presented with a bill and we have to become informed quickly. We have to work together and to react. What are the positions of all our nations? That is a lot of work and it has to be done quite quickly.

This also has to be looked at in the long term. Some things do not work. Your laws do not work for us because we are different. We have a way of thinking that has existed for a long time. It is innate. It is not written down on paper, but it applies nonetheless. We have always had equal relationships. Failing to take that into consideration can also lead to shortcomings.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Ever since we began to study Bill S-2 in committee, the members of the governing party on the committee have repeated a number of times that first nations have been consulted. They talk about a hundred or so consultations in 76 locations and about the $8 million that has been spent. That includes their last three attempts to get the bill passed. But your organization seems clear on the issue. You have shared several concerns during the consultation process and now, for the fourth time, the government is failing to respond to the requests of aboriginal women’s associations.

You also state that Quebec Native Women as an organization has participated in a number of parliamentary committees and that you have forwarded your comments on previous versions of the bill. You have also specifically asked for more consultations in communities, but your opinions seem to have fallen on deaf ears. What do you think about that and what should have been done?

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Madam Chair.

Ladies, welcome to this meeting of the committee. Thank you for travelling here. I am always happy to meet the witnesses.

Let me just say from the outset that some of the things I have heard this morning made my hair stand on end. I had to keep quiet. I heard people repeatedly asking the grand chiefs who spoke before you whether they had read Bill S-2. I found that to be incredibly disrespectful. It is as if I were to ask Ms. Bateman, Ms. Young, Ms. Crockatt, Ms. Ambler and so on whether they had read Bill S-2. I apologize on behalf of those who showed disrespect.

In terms of consultations, the Six Nations of the Grand River have all said that they were not consulted. Consultations with the great first nations are expected and required. I think family law—and correct me if I am wrong—is also set out in the Indian Act, meaning that you have full rights in the way you govern your people, which is normal. That is what we do. They are your people and it is your nation.

My first question is for Viviane Michel.

Your organization has recently issued a news release outlining Quebec Native Women's concerns regarding the implementation of Bill S-2 in light of the provisions of the Civil Code of Québec. In your view, there are discrepancies that are particularly concerning for aboriginal women in Quebec since the Civil Code of Québec does not provide the same rights to common-law partners as it does to legally married persons. It is said that 40% of women in Quebec are in common-law relationships. The implementation of this bill could create more problems. Could you tell us more about your concerns regarding the Civil Code of Québec?

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you.

Please forgive me, because I don't see the connection between reconciliation regarding residential schools and matrimonial property rights. I recognize that it was this government that issued the residential schools apology. That, to me, shows that.... I hear colonialism and paternalism. Frankly, I see a government that's actually trying very hard to consult on this issue and others, and to do the right thing, especially with regard to residential schools.

Maybe my question to you should be this. Do you want Bill S-2 to solve all of the problems? That's not how I see it. I see it as solving one problem. It's one piece of the puzzle. You're right. It doesn't address residential schools and it doesn't address housing, but it does address a big issue. We've heard from witnesses who've lived through the nightmare of being kicked out of their homes, and we're trying to help them.

So we can talk about a national plan of action and we can talk about colonialism. With regard to consultation, you can say there was none, but there was. It may not have been enough, but there was consultation. We still think we're doing the right thing. Do you not think there are women who will be helped by this?

[Stella Ambler, Conservative, Mississauga South, ON]

No, I'm saying those provisions are in Bill S-2.

[Stella Ambler, Conservative, Mississauga South, ON]

I know it was a long time ago. It sounds familiar to me, too, because all of these provisions are in Bill S-2.

Funding issues aside—and that seems to have been the theme of your comments today—at the end you recommended that we amend the bill and then repeal the bill. If we repeal the bill, do you believe, in principle, that women on reserves, indigenous women in Canada, should be afforded the same rights as other Canadian women in this area of matrimonial real property?

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you very much, Madam Chair.

Thank you to our witnesses today for being here to talk about Bill S-2.

Ms. Gabriel, you noted that you've spoken to a number of committees about this issue and others. I notice that in 2005 you testified before the Standing Committee on Aboriginal Affairs with regard to on-reserve matrimonial real property rights. You stated that you felt—and correct me at any point if I'm not right about what you said—that the best way to address the issue would be to amend the Indian Act in the following way: establish a matrimonial property regime that provides all property acquired during the marriage to be the property of both spouses; ensure that men and women have equal rights to matrimonial property and guarantee a fair division of matrimonial property on the breakdown of a relationship; apply the matrimonial property amendments to common law couples; and allow the parent who has custody of the children to remain in the family home.

Does that sound about right? Would you have testified to that effect?

[Ellen Gabriel, As an Individual]

[Witness speaks in Kanien'kéha]

Greetings to the chair, honourable members of Parliament, and my esteemed colleagues from the Quebec native women's association. This is at least the fourth or fifth time I'm presenting on this issue, in previous times as the president of the Quebec native women's association, so it is a great honour indeed.

As in the previous forms of this bill, several persistent omissions must be taken into consideration if there are to be real and long-lasting solutions to this problem. They first must be placed in context to understand the root causes of this injustice, which originates in the Indian Act and the impositions of colonial and patriarchal values.

I am compelled to note that the goal of this bill is the fair and equitable distribution of matrimonial real property for Indian women on reserves upon the dissolution of a relationship.

This bill should not profess to address the chronic issue of violence against aboriginal women. The issue of violence is best addressed through a national plan of action by Canada, its provinces and territories, and through cultural sensitivity classes on Canada's colonial history for judges, lawyers, members of Parliament, and politicians. It should include a genuine process of reconciliation that recognizes the negative impact of colonialism, the Indian Act, and the Indian residential schools system on indigenous peoples' identity, culture, language, traditional forms of governance, and how they have affected the roles and authority of indigenous women in their nations and communities.

A holistic view is essential if the issue of MRP is to be properly addressed by all levels of government, but in particular within aboriginal forms of governance.

High unemployment rates, lack of sufficient housing, a growing population, dispossession of our lands and resources, the imposition of paternalistic values and processes, outdated funding formulas, poverty, and social ills rooted in colonialism have for generations affected indigenous women's ability to enjoy their fundamental human rights.

There are several areas of concern regarding this bill, which include, one, the incorrect assumption that this bill was accompanied by a consultation process; two, the lack of inclusion of the Constitution Act of 1982, which protects and affirms the inherent and treaty rights of aboriginal peoples; three, the lack of resources for communities in implementation of this bill, and potential court orders supported by a weak implementation process, considering the situation of policing on reserves; and four, the non-legislative measures and lack of access to justice, in particular for those women living in remote communities, and the financial burdens placed upon these women, where homemakers rely on spouses for their incomes.

On the matter of consultation, I must state sincerely that there was none. While engagement sessions were given by Wendy Grant-John—her report came out in March 2007—and an explanation of the issue of matrimonial property was provided, with some discussion on suggesting solutions, even the ministerial representative's report noted that there has not been sufficient time to reach consensus.

While the government firmly believes that there were consultations, I must remind them that the ultimate duty to consult rests with the Government of Canada and its duty to uphold the honour of the crown. It is important to state that there were no consultations on the specific details and nature of Bill S-2 on matrimonial real property.

It is of significant importance to note that during any consultation process, the process of reconciliation must be included and is always ongoing in Canada's relationship with aboriginal peoples. As per the policy of the Government of Canada in its duty to consult, the crown also consults because it is legally obliged to do so. It must give effect to reconciliation and uphold the honour of the crown—the government's ability to adversely affect aboriginal treaty rights is restricted in this reality—and crown conduct must demonstrate respect for aboriginal and treaty rights.

In remote communities women rely on travelling courts. Women must often travel in the same vehicle as their ex-partner to attend court. Remote communities do not have easy access to legal aid. The financial burden placed upon women is cumbersome in their quest for a fair and just settlement.

Access to justice is challenging. With regard to financial compensation to their ex-spouse, should they try to negotiate a fair and just settlement, their measure of worth, of contribution made as homemakers, is not considered. This causes aboriginal women to experience more vulnerability and discrimination, as low-income women would not be able to pay their ex-spouses for the value of their part of matrimonial real property.

The issue of policing on reserves is also an extremely serious question. Provincial courts would only be able to provide temporary occupation orders for the home, and a lot of times police who are reserve police might have trouble implementing them if they're related to the persons involved. In Quebec common law, as Ms. Michel has stated, relationships are not recognized.

If harmonization with provincial and territorial laws was the goal in this bill, then a consultation process that also included the customary laws of indigenous peoples, along with their free, prior, and informed consent, should also have been considered. The trend for over 100 years is to go to Canada's courts if we disagree with Canada's decisions. Aboriginal peoples should not have to go to Canada's courts to protect their inherent and treaty rights.

Another important issue is that of membership codes, the criteria created by the Indian Act, and many times it uses blood quantum. Should a woman not be a member of the community, the woman will never have the right to own the home and its implements, thereby creating another gap.

Lastly, a centre of excellence should not be included since this was never a topic of discussion during talks with Ms. Grant-John. A centre of excellence is another example of the paternalistic attitude of government. It ignores the customary laws of indigenous nations and ignores the inherent rights and treaty rights. It seems to be another part of the aboriginal industry where badly needed funding for communities will be directed toward an organization isolated from the communities, instead of going to institutions damaged by the Indian Act such as our languages and cultures and traditional customs and governance, as well as more emergency shelters in the communities, which are essential to this process of reconciliation.

If the centre of excellence is to be created, it should not be headed or controlled by any aboriginal organization. Instead, it should have indigenous women academics, elders with traditional knowledge, and front-line workers with experience in domestic and institutionalized racism and abuse.

Like many laws before it, Bill S-2 fails to consider the realities of first peoples and their communities who lack the much-needed financial and human resources for its implementation. Bands are already pushed to their limits by outdated funding formulas, as stated by former Auditor General Sheila Fraser in her 2011 June Status Report, in chapter 4, “Programs for First Nations on Reserves”. She states, "Structural impediments explain the lack of progress on reserves". Ms. Fraser goes on to say substandard construction practices or materials, lack of proper maintenance, and overcrowding also contribute. Bill S-2 also does not accommodate the need for more land, nor the fact that in order to develop their own MRP codes, a band must already have been in or be in negotiations on their land.

Legislation that fails to consider the effects of colonialism and assimilation policies, like the Indian residential school system and the Indian Act, creates deficiencies in the promotion and protection of indigenous women's rights. In recent years, great accomplishments in the area of human rights, most notably regarding the collective and individual rights of indigenous peoples through comprehensive human rights instruments like the UN Declaration on the Rights of Indigenous Peoples, must be included in any remedies to injustices faced by indigenous women and their families.

Various human rights agencies, like the UN Permanent Forum on Indigenous Issues, have been created to reconcile past injustices experienced by indigenous peoples due to doctrines of superiority and colonialism, which regrettably still exist today in Canada. There is a movement forward to end the discriminatory practices perpetuated under Canada's Indian Act laws and policies. It behooves the Government of Canada to implicate itself wholeheartedly within the processes of reconciliation in all its dealings with aboriginal peoples. Canada must amend Bill S-2, listen to the voices of indigenous women and their communities, embrace human rights instruments, and repeal Bill S-2.

I guess my recommendations will come at a later time. Thank you very much for your consideration.

[Viviane Michel, President, Quebec Native Women]

[The witness spoke in her native language]

Good afternoon, everyone.

Thank you, Madam Chair.

I would like to thank the committee for this opportunity to express our concerns about Bill S-2, 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.

Quebec Native Women has repeatedly expressed its concerns about this issue. We would like to provide you with our comments and recommendations on the latest version of the bill.

Bill S-2 is supposed to remedy the legislative gap that exists for first nations couples living on reserves after the break-up of the relationship or the death of one of the spouses. That includes the division of property and matrimonial rights or interests. However, the bill, in its present form, does not fully address the issue of matrimonial property and will not fully protect those who are most vulnerable.

I would like to highlight some factors that contribute to the complexity of this bill that, at worst, will create more problems for aboriginal women and children than it will solve and, at best, it will be wishful thinking only bringing temporary solutions to vulnerable women.

First, although we commend the government’s efforts to enable first nations to develop their own matrimonial real property code consistent with their own traditions and customs, the bill does not take into account the jurisdiction of first nations over reserve property and their right to self-determination as it grants jurisdiction to provincial courts for enforcement. As a result, a provincial court will be imposing on communities the use of their own lands. In addition, if they do not develop their own code, the proposed legislation establishes federal laws that will be imposed on first nations. Even if first nations have an opportunity to create their own laws, it will only be a form of delegated authority.

Second, aboriginal women’s groups have been asking all along that additional resources be provided so that first nations communities can both develop and enforce their own laws. Yet no funding or resources will be provided to first nations to access those provincial courts, which will therefore be too costly or complex for them in a number of cases. We are carefully watching the government’s intent to establish a centre of excellence for matrimonial real property, which could assist idle communities in drawing inspiration from established best practices, but will not force them to use those practices, nor will it provide assistance to all the communities across Canada.

According to the website of Aboriginal Affairs and Northern Development, a maximum amount of just under $5 million over five years will be earmarked for the centre. That corresponds to six full-time employees for five years helping 500 aboriginal communities across Canada to develop their own legislation. Not only does that seem like an impossible feat given the remoteness of the communities and the lack of human and financial resources within many band councils, but it also means postponing the detected implementation problems to the medium term. Supporting the development of those new family codes is a good idea if resources are also provided directly to the communities so that they can develop their own matrimonial real property laws.

Third, we want to ensure that minimum standards for the protection of aboriginal women are observed and that the following factors do not penalize women and their abused families or families affected by grieving or separation: exclusive membership codes, lack of housing, lack of legal resources and assistance within communities, as well as a different legal system.

From my experience as a first responder, the best resources to help aboriginal women are those that are culturally adapted and easily accessible within their own communities. Aboriginal women’s groups and their communities must work together in order to develop a fair and equitable system that is based on cultural traditions and customary law. Consideration should also be given to setting up multi-tier aboriginal mediation systems and other practices or aboriginal legal and decision-making systems for matrimonial real property. There also has to be a recognition of the systems that are already in place.

Bill S-2 proposes a solution based on the common law of the federal system without considering the legal provincial diversities. In fact, this bill is asking provincial courts to implement a common law system to handle family law disputes and, as a result, to adapt to a number of legal systems, including the system implemented by various nations and communities, if applicable. The Civil Code of Québec does not grant the same rights to spouses and common-law partners. However, the opposite would be true for provisional laws.

Another consideration is having a judge who is familiar with the Indian Act. It becomes a very complex situation. Also, the bill would not protect aboriginal women living in communities governed by specific treaties such as the James Bay and Northern Québec Agreement, as well as the Northeastern Québec Agreement that brings some specific features to the Cree and Naskapi territories. In its present form, the bill will probably have no legal impact on the Cree and Naskapi communities and they will have to make laws so that matrimonial real property matters can also be incorporated in their own legal system. That is another legal framework that needs to be considered in the province of Quebec.

Since the rights and recourses by provisional federal rules will be handled by various provincial, federal and aboriginal legal systems, the federal government should conduct further analysis to determine whether this situation has an impact on Quebec’s aboriginal communities and, if that is the case, to establish what the consequences would be. Ultimately, what makes aboriginal women vulnerable currently in cases of separation or domestic violence is the lack of housing and the non-settlement of land claims for all aboriginal nations across Canada. This type of settlement would enable communities to address the demographic pressure on their people and their needs for economic development. This is how the Harper government must do its part if it wants to help aboriginal women escape violence.

Bill S-2, in its present form, does not address this main concern. Furthermore, by refusing to take it into consideration, all it does is send the problem to the provincial courts and band councils. The unilateral approach taken by the government to resolve this issue through legislation will also fail to address systemic problems. The lack of resources, particularly the lack of housing in the communities, will be challenging, and so will the implementation of some provisions regarding the forcible removal of a spouse who will not easily find alternative housing in the community.

In addition, there is also an issue with public safety in the communities. The lack of human and financial resources in the police forces will make it difficult to effectively enforce emergency protection orders. We appreciate the changes to improve the bill, especially the 12-month transition period, but we note that it is a short transition period given that the legal framework being set up in the communities is not good.

Let's talk about family rights. Not all communities are in the same place. They do not have the same human and financial resources to establish this regulatory framework and then implement it.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Madam Chair.

I know that Chief Maracle, in his opening remarks, pointed out that this bill is before the wrong committee, and I would completely support Ms. Bennett's motion.

At the aboriginal affairs committee, we’ve just finished studying a private member’s bill that included a section on wills and estates. It became very clear—and this relates directly to matrimonial real property—that taking into account the very complex land codes within first nation communities, the matter of wills and estates needed further study. With regard to matrimonial real property, it's very clear that we're not dealing with fee simple lands. We're dealing with custom allotment. We're dealing with certificates of possession. We're dealing with a variety of mechanisms around lands that do not simply mean that when there's a marital breakdown, person A stays in the house and person B goes somewhere else.

That is an important factor when we're talking about matrimonial real property.

Madam Chair, when David Langtry, the acting chief commissioner of the Canadian Human Rights Commission, came before this committee, he indicated that there were three questions this committee should be considering. One is fair access to justice, one is ability to access rights in a safe way, and a third one is whether communities have the capacity they need to develop and implement their own matrimonial real property systems. I would argue that all three of those questions need to be dealt with at the aboriginal affairs committee because the aboriginal affairs committee has a much broader perspective on the complexities facing first nation communities.

One matter that came up at the aboriginal affairs committee when we were talking about Bill C-428 was the issue around custom adoptions. Now, I haven't heard anybody talk about custom adoptions. When provinces are going to be dealing with allocating who gets to stay in a home when there is a marital breakdown, how are they going to deal with custom adoptions? Many provinces don't recognize the first nations’ tradition of custom adoptions, so what would happen in such a case?

Chief Montour, Deputy Grand Chief Fiddler, Chief Maracle, Chief Abram—all of you have talked about the lack of resources. At the aboriginal affairs committee, I can tell you we're well steeped in hearing testimony from people about the lack of resources for housing, the lack of resources for education, the lack of resources for water, and the lack of resources for policing.

Deputy Grand Chief Fiddler, I know your communities have been struggling with issues of policing now for a long time, but it has been very prominent in the media over the last number of weeks because of that lack of resources for policing in your own communities.

We hear the government say that what's going to happen is that by passing Bill S-2, miraculously, somehow or other, people in communities are going to be protected. Well, who's going to enforce those protection orders? Where's the community going to get the resources for alternate dispute resolution and mediation? Where's the community going to get the resources for legal aid? Where's the counselling when families need help? Perhaps they could resolve issues with appropriate counselling. Where are those counselling dollars going to come from? How are the chief and council going to deal with the fact that there are such severe housing shortages?

As Deputy Grand Chief Fiddler and Ms. Fletcher pointed out, there could be 13 or 14 people living in a house. What happens if the custodial parent, the woman, is living with the husband whose whole family lives in the house? Now we're going to say, okay, the woman now has the house. Does that mean the grandparents have to move out because they're the parents of the young man?

This act has been touted by the opposition...I mean the government—opposition I could only wish. The government has indicated that this act will deal with violence against aboriginal women. I want to thank Chief Maracle and Chief Montour and others for rightly pointing out that aboriginal men, first nation men, are not violent by nature. When we're talking about marital breakdown, we're talking about the stressors of poverty and a lack of access to resources that complicates families in a way that many Canadians simply don't face.

On the issue of violence, Bill S-2 mentions family violence—not violence against aboriginal women, but family violence—eight times in this act, and it does nothing, absolutely nothing to deal with the factors contributing to family violence.

We saw in the past as the Aboriginal Healing Foundation funds sunsetted, which could deal with the intergenerational traumas that resulted from residential schools, for example, that money has disappeared.

So when you want to talk about what's happening and where this bill should rightly be it should absolutely be before the aboriginal affairs committee. I would support the calls that have come in from certainly the chiefs who are before us today, but many other chiefs and community members as well, about the duty to consult and accommodate.

It isn't just going out and self-selecting a number of communities, it is about that duty to consult, that free, prior, and informed consent that's been outlined in the UN Declaration on the Rights of Indigenous Peoples. So I certainly would encourage all members to vote in favour of Ms. Bennett's motion and have this bill dealt with appropriately at the appropriate committee.

Thank you, Madam Chair.