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.

Sitting Resumed

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, the member said that consultation is important but that there are other avenues. According to the law and the inherent rights of first nations, it is a mandate for the government to consult. So again, let me remind her about Chief Shining Turtle from Whitefish River First Nation. He said:

While MRP laws may be needed for a handful of First Nation communities, what is desperately needed is capacity building and funding to support First Nations to work with their communities to come up with their own laws and local dispute resolution mechanism—we already know from residential schools how things turn out when Canada imposes its own views on Aboriginal peoples.

Again, here is a community that has had matrimonial real property legislation already in place within the community. Why is it that the Conservative government does not just provide capacity and resources to other first nations who are in need, because there are a lot of first nations that already have that?

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Mr. Speaker, this is what I continually hear from the opposition on this matter, a bunch of mumbo-jumbo. Instead of talking about—

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Chief Shining Turtle of a first nation.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

The chief the hon. colleague was talking about, if she is a woman, would like to have the same rights as I have as a non-aboriginal woman. Let us talk about basic human rights. As a woman or a man in Canada, I am free from violence. I am free to acquire assets and if I go through a divorce, I actually can have half of those assets. The law makes sure that happens.

Why will that member not stand and instead of just talking a bunch of talking points and bureaucratic mumbo-jumbo, actually stand up for women in this country who live on reserves and happen to be born as status Indians. They should have the same rights as I have as a non-aboriginal woman.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Mr. Speaker, it is one thing to debate a bill and we are to debate a bill on its own merits, but the sanctimony and hypocrisy coming from that side of the House is mind-boggling.

The member said let us look at ourselves in the mirror. Let me remind her, this bill started off as Bill C-47. What happened to it? It died on the order paper because the Prime Minister called a sudden election in 2008. It came back as Bill C-8. It died again on the order paper. Why? Because the government prorogued in December 2009. It came back again, this time as Bill S-4. They had seven months and the Conservatives did not do a thing with it. It came back as Bill S-2 in May 2011. It has been there almost two years. What did they do?

Now we are in a big rush. What does the government have to say about the priority of the bill?

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Mr. Speaker, what the hon. colleague clearly did not hear is that this is actually very personal to me. My granddaughter is a member of the first nations. Her mom is a status Indian. I only speak for two Indian women in this country, but there are tens of thousands of Indian women who deserve the same rights as we do sitting here as non-aboriginal women.

The member can holler and yell. He can do the same thing that the opposition and the NDP are doing. This is a basic right for every single Canadian. Aboriginal and non-aboriginal women should have the same rights. That is what this is about.

Here is the good thing that I can say to my granddaughter: “We got it passed. We got it done. We are making sure that aboriginal women have the same rights as everybody else”.

[The Acting Speaker, Barry Devolin]

The time for government orders has expired.

Statements by members, the hon. member for Okanagan—Coquihalla.

The House resumed from June 4 consideration of the motion that 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, be read the third time and passed, and of the amendment.

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Mr. Speaker, I am very privileged to rise today in support of Bill S-2, family homes on reserves and matrimonial interests or rights act.

As a Canadian woman, I find it deplorable that, in 2013, men, women and children living in the majority of on-reserve communities have no legal rights or protections in relation to the family home. In situations of family violence, aboriginal women have often been victimized and kicked out of their homes with nowhere to go. This is why Bill S-2 is so important. It would finally provide the same basic rights and protections to individuals living on reserves, in the event of a relationship breakdown or upon the death of a spouse or common-law partner, that are available to all other Canadians.

Ultimately, Bill S-2 would remove a factor that contributes in no small way to violence against women living in many first nations communities. The proposed legislation would give these women similar legal protection to that enjoyed by other Canadian women, protection that we take for granted every day. The legislation equip them with the same legal tools and mechanisms that other Canadian women use to prevent and combat abuse and violence, particularly by spouses or common-law partners.

During its review of the legislation now before us, the Standing Committee on the Status of Women heard from a number of witnesses, including women who suffered as a result of this legislative gap. They include women such as Rolanda Manitowabi, a member of a first nation in Ontario. During her testimony, she described how she and her common-law partner built a home together and that she invested her life savings in the project. To protect herself, she got the band to issue her a document naming her as the owner of the property. However, when she and her partner separated, she was evicted from her home. It was at that time she found out that the document had no legal foundation. She stated, “...my son and I were thrown out of the house. I had no place to go. I was in a crisis.... This legislation would have helped...and it would have considered the impacts on my son. I hope [the bill is] available to help other women and children on reserves”.

The members of the committee also heard from Jennifer Courchene, a member of a first nation in Manitoba. Jennifer and her children became homeless after her abusive partner forced them out of their home. She told the committee:

I'm sure I'm not the only one who has gone through this in a first nation community. There are probably many, many other women who have gone through what I've gone through, and the story is pretty much the same: the woman loses the home. I'm not sure how other first nations communities are run, but if there had been something to help us, we would have taken it, rather than be homeless, that's for sure.

These are just two examples of women who have suffered as a result of a lack of legal protections on reserve. However, as Dr. Kim van der Woerd, a board member for the Young Women's Christian Association, described in her testimony, these women are not alone. She stated:

With respect to violence, aboriginal women experience spousal or partner violence at a rate three times higher than non-aboriginal women. With respect to housing, aboriginal women are more likely to experience homelessness than aboriginal men, and this homelessness is often related to their experience of violence and escape from violence.

Bill S-2 would go a long way to protect some of the most vulnerable people in Canadian society, specifically women and children living in first nations communities. It would close the legislative gap that continues to cause harm, and would give women like Rolanda and Jennifer, and the thousands of women like them, the legal protection they so rightly deserve, protection similar to what the law affords women who live off reserve.

Bill S-2 would provide aboriginal women two important legal tools to defend themselves: emergency protection orders and exclusive occupation orders. Currently, the law does not provide people who live in the majority of first nations communities with access to these orders.

Under the proposed federal rules, any spouse or common-law partner residing on reserve would be able to apply to a judge or justice of the peace for an emergency protection order. If credible evidence of family violence is presented, the court could issue an order that excludes a spouse or common-law partner from the family home for a period of up to 90 days, with the possibility of a one-time extension.

To ensure that people living in remote communities can access these orders, the federal rules would authorize applications submitted via telephone or email. The rules would also authorize a peace officer or another appropriate person to apply on behalf of a spouse or common-law partner. This provision would protect applicants facing dangerously unpredictable spouses or common-law partners. In past cases, a spouse or common-law partner who learned that an application has been made immediately lashed out, and the consequences have been tragic. By enabling a third party to make applications, this provision would mean that victims would not have to immediately confront violent spouses and possibly place themselves in danger.

Exclusive occupation orders would also provide for one spouse or partner to have exclusive access to the home and could be extended for longer periods of time. The court would determine the time period for each order that it grants. Many of the same conditions would apply. For instance, the person banned from the family home would have an opportunity to contest the order in court. The court would need to consider the broader context, such as the best interests of any children involved in the relationship, the history and nature of any family violence, and the financial and medical circumstances of the spouses or common-law partners.

These orders, the provisional federal rules and the rest of Bill S-2 are designed to ensure that Canadians who live on reserve would have protection and real matrimonial property rights similar to Canadians who live off reserve. The proposed legislation would promote the safety of children and caregivers who experience family violence. It would enable children to remain in the home and benefit from the stability that this provides, including the connection with the community and extended family, and access to services, schools and special programs.

This legislation is not about policy or funding levels. It is about eliminating the cause of injustice in closing a legal loophole that creates inequality and leaves aboriginal women vulnerable. It is about ensuring that all Canadians, whether they live on or off reserve, have similar protections and rights when it comes to family homes, matrimonial interests, security and safety.

It is my hope that the opposition will come to its senses, recognize the very important measures that are in this bill and vote in favour of Bill S-2.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I shall be sharing my time with the member for Gaspésie—Îles-de-la-Madeleine.

One of the most conclusive proofs of Canada’s backwardness in its legislation respecting first nations comes quickly to light when we consider the issue of the division of matrimonial real property. In this case, as in many others, aboriginal people tumble into a legal void that illustrates the gap separating them from other Canadians.

Parliament has now been pondering the problems related to this legal void for 10 years. That is an eternity. We have much evidence at our disposal, and a plethora of reports from the Senate and the Standing Committee on Aboriginal Affairs and Northern Development, as well as private institutions.

Once again, unfortunately, the Conservative government does not seem to have done its homework, and Bill S-2 does not reflect any of the recommendations produced over the last decade. What is more, the bill is a new version of Conservative paternalism towards aboriginal peoples, since the government did not hold any consultations before drafting it.

The result is a bill that seems to have been written in haste on a restaurant napkin and may jeopardize the fundamental rights of women on reserves. For these reasons, I will be opposing Bill S-2 and encouraging the federal government to review its distressing approach to first nations.

Canada has already seen major legal proceedings rejected by the provincial courts, because provincial law cannot be enforced on aboriginal lands. The cases Paul v. Paul and Derrickson v. Derrickson, in 1986, are good examples. Some 17 years were to pass before the Senate issued a report on matrimonial real property on reserves. The report first identified the legislative void in question, which was not such a bad thing. However, it noted in particular that aboriginal women have no rights in the case of a marriage breakup and have no choice but to leave the home. The report recommended that provincial legislation apply.

Those are very fine ideas for an institution that seems more than ever to have let time pass it by. It might have been considered more useful had the government taken this study into account in drafting Bill S-2. However, since the government prefers to use the other house to reward its party friends, it may not have consulted its earlier deliberations.

No later than 2004, however, the Senate issued another report, the title of which is more explicit: “On-Reserve Matrimonial Real Property: Still Waiting”. In that report, the upper house stressed the need for early action with respect to matrimonial real property. Among other things, the report recommended that the issue be referred to the Standing Committee on Aboriginal Affairs and Northern Development, and so it was.

In 2005, the committee in turn issued a series of recommendations to solve the knotty problem of on-reserve matrimonial real property. Among other things, it recommended that the Assembly of First Nations and the Native Women’s Association be consulted on the development of new legislation or the amendment of the Indian Act; that financial assistance be provided to first nations to enable them to develop their own codes respecting real property and matrimonial assets; that any new legislation should not apply to first nations that had developed codes of their own; that the Canadian Human Rights Act be amended to include aboriginal persons living on a reserve; and that Canada recognize the self-government rights of first nations.

As anyone can see, these are excellent recommendations. Unfortunately, the Conservative government knowingly disregarded them when drafting Bill S-2. This is another shameful waste of public funds. The government has no vision of Canada to offer other than that of a “for sale” sign on the lawn of Parliament.

I say “waste” because the government has chosen to disregard the knowledge we have gained from extensive evidence and from reports that were carefully prepared by various players.

That is not all. In 2006, a report on the status of women put its finger on the problem by citing foreseeable barriers to the administration of an act respecting matrimonial real property on reserves. According to that report, the government should allocate adequate funding to implement such legislation, address the very serious housing shortage on reserves and conduct consultations. Those three essential factors are also not reflected in Bill S-2.

As long as they introduce pointless legislation, the members opposite should consider staying home. In 2006, a departmental report revealed that no consensus had been reached with regard to the legislative measures that should be taken to address the matter. It recommended, for example, that the competing jurisdictions model be used. However, the report specifically emphasized that the government should quickly determine the actual costs of administering provincial statutes on reserves, the solution advocated by the Senate.

The least we can say is that the government had the time it needed to consider the matter. The least we can believe is that it had everything it needed to develop a good bill. The least we can acknowledge is that Bill S-2 is largely inadequate under the circumstances.

This government has always taken an unconventional and paternalistic approach to first nations. I imagine we could not have expected otherwise. I know there are real solutions to the very real problems the first nations are experiencing, particularly as regards matrimonial real property.

There is an urgent need for us to develop a bill that provides quick access to recourse for communities that, in some instances, are far removed from urban and legal centres. We must put an end to violence against aboriginal women by developing a national action plan. We must provide better funding for communities that are part of the 2% and we must resolve the terrible housing crisis among the country's first nations.

A bill that does not take these considerations into account would be nothing but smoke and mirrors.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Mr. Speaker, I want to make a comment on the remarks of my colleague.

I had the privilege of joining the status of women committee for its study on violence against aboriginal women in 2010. We travelled to Nunavut, Newfoundland and Labrador and New Brunswick. We heard over and over again the challenges women in rural and remote communities faced with violence in their homes.

We have responded to calls from aboriginal women, parliamentary committees, international bodies and the Manitoba NDP. They have called for the elimination of the legislative gap that this legislation would fill.

The member referenced a study done by the Senate called “Still Waiting”. Could she justify to the House and tell us what she would tell aboriginal women? If she had her way, they would still be waiting to have the same protection that all Canadians enjoy.

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I thank my colleague for her question.

Yes, aboriginal women were consulted, but that is not reflected in the report. Why not consider what they said? For years now, aboriginal women have been overlooked and treated as though they are not persons.

It is important to consider their opinions in matters pertaining to the status of women, just as those of so-called “other” women in Canada have been taken into account. I have worked to improve the status of women for some 30 years. It is important to consider the opinions of these women, whether they are aboriginal or of other nationalities, and we do not see that in this bill.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, I want to thank my colleague from Joliette for her very interesting speech. She works very hard for her riding, and I commend her on that.

As far as Bill S-2 is concerned, she raised some very interesting points. I want to come back to the comments made by the hon. member for Saskatoon—Rosetown—Biggar, who said that under this bill, aboriginal women will have the same rights as all other women in Canada. We know full well that without the necessary means to fully exercise those rights, they will be meaningless. Aboriginal women will not have access to the same resources as other Canadian women, and the courts are not properly equipped to hear their cases. There is certainly no guarantee that aboriginal women will have the same rights. The way I see it, it is clear that this bill will not give aboriginal women the same rights that Canadian women have.

Could the hon. member elaborate on this?

[Francine Raynault, NDP, Joliette, QC]

Mr. Speaker, I want to thank my colleague for the question.

This bill will not give aboriginal women the same rights that Canadian women have because provincial laws do not apply on the reserves. Someone mentioned this earlier. How are they supposed to have their rights recognized?

There is a legal vacuum. These rights are not recognized under federal law, and provincial law does not apply on reserves. What are these women supposed to do? Should they go to their MP's office so that things might change one day?

[Susan Truppe, Conservative, Parliamentary Secretary for Status of Women]

Mr. Speaker, Bill S-2 is not only about matrimonial rights; it is also about protection orders for men, women, and children.

The member opposite mentioned that aboriginal women had been ignored for years. Does the member opposite want to ignore them for another 25 years?