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.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thank you very much, Madam Chair, and thank you, Deputy Grand Chief and Ms. Fletcher, as well as the chiefs.

Reflecting on what Ms. Tilly O'Neill Gordon has said, I think it speaks to how this government has drafted a bill and simply doesn't understand the situation. Some of the grandparents that Chief Maracle was referring to in a house with 12 people, some of those grandparents may be 40 years old. They don't fit into the elder-infirm category. These are people who have been helping raise families.

I think, because the government doesn't understand that consultation means a two-way communication—send and receive—and because the government has refused to listen to Wendy Grant-John or to any of the overwhelming negative responses to this bill, and because of the debacle last week, to those of us on this side who have had experience on the Committee for Aboriginal Affairs and Northern Development it's very clear that sending a bill of this complexity to this committee that has no experience with legislation and no experience, expertise, or even cultural sensitivity to first nations, Inuit, and Métis people in Canada. Therefore I would like to move this morning:

That the Committee recommend to the House of Commons 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 referred to the Standing Committee on Aboriginal Affairs and Northern Development, and that the said committee report its findings to the House.

I don't think we can go on to clause-by-clause with this continual failure to listen to what's been said in terms of how this has to be. I don't care how much money you've spent on consultation. If you have not listened, it makes absolutely no sense that this wasn't done properly. Wendy Grant-John was very clear that without the non-legislative tools in place, this will not solve this problem.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

I have to say that our government has made many consultations in the last years. We have had 103 consultations, at a cost of $8 million, so we have met with your people. I was just wondering how well consulted your own members were and whether they are truly aware of the factors in Bill S-2.

When I talk about the facts of Bill S-2, I point to the bill, which says, “the best interests of any children who habitually reside in the family home, including the interest of any child who is a First Nation member to maintain a connection with that First Nation”. That is very important to your people. I realize that.

Another factor is the financial situation and the medical condition of the spouse or common-law partner. That's an important factor that's under consideration in this bill, as well as the availability of other suitable accommodations situated on the reserve. Someone also mentioned that sometimes there are elders who live in those houses, and that is a factor that's brought up in here as well. It says “the interests of any elderly person or person with a disability who habitually resides in the family home and for whom either spouse or common-law partner is the caregiver”.

Now, I taught on a reserve for four years prior to becoming an MP, and I realize those situations exist, but I do feel—

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

Thank you, Madam Chair.

I want to thank you all for being here and making your presentations. I also want to reiterate what my colleague had just said. Bill S-2, we all know, and I acknowledge thoroughly, that it's not intended to address the broad issues of poverty or housing shortages on reserve. This bill was developed in response to men and women asking the government to do this. This is not just something we dreamed up. We were asked to do this, and that is why we are progressing with that. We've had witnesses who have been here already and who have spoken with passion on this issue. That is why we are going in this direction.

I also note that in 2007, the NAN held one consultation session, which included three focus groups over three days with approximately 30 participants. All these legislative options were put forward for consideration in the discussion paper. Since 2007, what progress has NAN made in developing family law templates for all the NAN communities? You said there were 49. I'm wondering what progress you have made in developing family law for all of these communities and matrimonial real property practices that incorporate restorative justice and the circle approach.

I will ask Chief Maracle.

[Susan Truppe, Conservative, London North Centre, ON]

Thank you.

We acknowledge that Bill S-2 will not, and is not intended to, address the broad issues of poverty or housing shortages on the reserve. The bill is developed in response to women and men who asked the government to address this inequity. It provides equal rights to the family home and protection for primary caregivers, the majority of whom are women, and their children in situations of family violence, divorce, separation, or the death of a spouse or common-law partner.

[Susan Truppe, Conservative, London North Centre, ON]

Thank you.

I'd like to thank everyone for being here and sharing your comments and thoughts on Bill S-2.

Can I just ask each of you, starting with Jackie, have you read Bill S-2? Have you read the bill and do you understand the bill?

[Chief R. Donald Maracle, Member, Iroquois Caucus]

Seken sewahkwekenh. Good morning, everyone. My name is Chief Don Maracle. I am the chief of the Mohawks of the Bay of Quinte. I concur with what my colleague Chief Montour has said.

The Mohawk Nation is part of the Iroquois Confederacy. We're part of the Iroquois Caucus and part of the Association of Iroquois and Allied Indians. We live near Belleville, Ontario. Our current membership is 9,053 members. Our people live on just about every continent in the world.

Since the passage of the McIvor legislation, we have seen our membership increase by 819 members and there are other applications pending registration at the Department of Aboriginal Affairs. We have 2,200 members who live in our community, and an estimated 1,200 non-native, non-status people who live in our community and are attached to families.

With the implementation of Bill C-31 and in the past two years, our membership has increased by 10%. Many of the funding formulas are for people who live on the territory. Some of the funding formulas are for the entire membership. The new registrations have placed additional financial burdens on our community and on the council, with no additional funding to offset the increase in membership. These provide pressure on housing and education.

We have the third largest membership of aboriginal communities in Ontario and the ninth largest in Canada.

Our ancestors were military allies of Great Britain and participated in most of the wars in the last 300 years. After the American Revolutionary War and the signing of the Treaty of Paris in 1783, our ancestors were required to choose a homeland on the north shore of Lake Ontario and the traditional hunting territory of the Iroquois Confederacy.

We are very disappointed that this legislation has once again surfaced in the House without prior consultation. The views of Wendy Grant-John, who was commissioned by Canada to travel across the country to gather the views of first nations people, have largely been ignored in the bill.

The government has a duty to consult and to also honour its own laws, and to date the government has not followed its own jurisprudence with respect to decisions passed on by the Supreme Court regarding the duty to consult. The duty to consult, accommodate, and obtain consent was reaffirmed by the Supreme Court when the government is considering action that could affect aboriginal and treaty rights.

This bill does impact on Treaty 3 1/2, which created the land base for the Mohawks of the Bay of Quinte. It's published by the Crown as Treaty 3 1/2, dated April 1, 1793.

We are also of the view that this committee is not the appropriate committee to be studying this matter. This issue is not really just about aboriginal women's rights. There are men in our communities who fall under the same situation, who have suffered abuse, and sometimes it's not always the man that's the abusing partner. We feel that the bill should protect the family as a unit, to have a more holistic view, and not be gender-based.

There's a great deal of focus on family violence with this bill. There are many reasons that contribute to the breakdown of a family. To focus on family violence is leading the public to believe that all first nation marriages break down as a result of family violence. That is not the case. It also brings to the public the view that all first nation men are violent to their partners. That is not the case.

This submission does not constitute consultation. Bill S-2 is paternalistic. It does not recognize that the jurisdiction over who can live on our land belongs to the first nation and not to the Government of Canada. The government purports only to understand that family law is a right of a first nation's jurisdiction, but in fact, all the government is doing is not recognizing their right, they're delegating authority to manage it to the first nation. The Royal Proclamation of Canada was a document the government spent millions of dollars on and that document recognized that family law is a matter of first nations' jurisdiction.

There is a requirement to hold a referendum to pass a law. There is no government anywhere in Canada that has to hold a referendum to pass a law. There is a lot of difficulty meeting the 25% threshold because many of our people, who have been added to the list through Bill C-31 in 1985 and the McIvor legislation, live in various parts of the world. They may not always participate in community decisions and a lot of them believe it's not appropriate for them to do so.

There's no clamour from our membership to participate in these kinds of decisions. To get to the threshold to even vote could be problematic in some of the communities. Also, there's a high cost to that manner of consultation, which the government does not fund, so it adds another financial burden on first nation communities to go through this type of process.

Our land is very integral to our people. There's a strong connection that our people have to the land. Our identity flows from that relationship to the land, and it holds a cultural and spiritual importance to our people.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Welcome, everyone. This is the 75th meeting of the Standing Committee on the Status of Women. Today, we are continuing the study of 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.

Joining us today are Chief William K. Montour, Chief R. Donald Maracle and Chief Joel Abram from the Iroquois Caucus. Welcome.

You have 10 minutes that you can share for your opening statement. Then, by videoconference, we will hear from

the Nishnawbe Aski Nation, with Deputy Grand Chief Alvin Fiddler, and Madam Jackie Fletcher, the women's council representative.

You will have 10 minutes for your opening remarks. Then we'll go to our rounds of questions with the MPs around this table.

Mr. Montour, I welcome you and invite you to start your opening remarks.

[Shelly Glover, Conservative, Saint Boniface, MB]

That's very good. Thank you for mentioning those facilities. I've been to the facility in Saskatchewan. It was absolutely amazing. Again, the stories that came out of the women I met there...very much the women who were kicked off reserve, who have no rights, who can't take care of their children because their children are taken away from them.

I'm sorry to harp on this, but Bill S-2, the matrimonial rights bill for aboriginal women on reserve, is an absolute godsend, and I hope to God that we prevent more women from falling into that cycle and perhaps falling victim to the next perpetrator and becoming the next missing or murdered aboriginal woman. I wanted to make sure we got that on the record.

Thank you.

[Shelly Glover, Conservative, Saint Boniface, MB]

Thank you very much, Chair.

Thanks to the witnesses.

I want to thank you, first of all, Mr. Tupper. I'm just thrilled to be here. I spent an awful lot of time in the aboriginal community. I spent 19 years policing in the city of Winnipeg—I hope to go back at some point—and I've investigated some of these cases of missing aboriginal women.

You mentioned the canadasmissing.ca website, and God bless you, because we're not here just to try to figure out ways to better protect these women and to find them and to solve some of these problems; we want to raise awareness as well. For those who might be following this, I want to encourage them to visit that website. If we can find just one of those missing girls.... Their families need closure.

I'm going to repeat it: canadasmissing.ca. It's a wonderful website that's been developed. I thank all of the officials and people who worked on it. It's a tremendous tool. Again, if we can find even just one of these missing girls for these families, it would be incredibly valuable.

I have to say that when Greg Rickford was talking about some of the incidents that he's lived through, boy oh boy, I started to have flashbacks myself of homicides of aboriginal women that I've been involved in investigating, and the homicides of their children, and so on.

When I was working, particularly in Winnipeg's north end, many of the women would tell me, when I saw them being exploited in the sex trade and was stopping to discuss things with them, that they had been kicked off reserve. Many of them were kicked off reserve and had nowhere to go, so they came to the city. They didn't know what to do, because they didn't know how to support themselves. They would get into prostitution and be exploited, with vicious, vicious beatings—absolutely vicious beatings—yet they had no voice in their communities, so they would come out and do this. I still suspect that many of those women are missing and murdered aboriginal women.

Actually, the stats provided by Stats Canada today seem to support.... In their eighth slide, they say, “Aboriginal women's disproportionate representation [is] greatest in non-spousal homicides.” It's dating, etc. We need to do something to give these women their rights. I've been dreaming of Bill S-2 for many years, but when it doesn't actually work in the communities, where women are not reporting....

You're coming up with these safety plans in conjunction with these communities, but how come we only have 190 in your dissertation? Is that the correct number? Out of the 600-plus communities, why do we only have 190?

[Françoise Ducros, Assistant Deputy Minister, Education and Social Development Programs and Partnerships, Department of Indian Affairs and Northern Development]

Thank you for having me here.

Madam Chair and honourable members, I want to thank you for inviting the Aboriginal Affairs and Northern Development department to appear before the committee. It's a privilege for us. Sheilagh Murphy and Jo-Ann Greene are also with me and can answer questions specific to social programs and matrimonial property.

Aboriginal Affairs and Northern Development, of course, continues to be deeply concerned about this issue and appreciates the opportunity to assist the special committee.

In the June 2011 Speech from the Throne, the Government of Canada committed to address the problem of violence against women and girls. The federal role is only one part of the overall efforts.

Aboriginal Affairs and Northern Development Canada supports aboriginal women, girls and families through funding for programs and services that directly address violence, such as the family violence prevention program. They also address violence indirectly through support for child and family services, on-reserve housing, economic security and prosperity, education and urban living.

Since 2006 the Government of Canada has invested approximately $205 million in the family violence prevention program. Economic action plan 2013 announced further funding of $24 million over two years for the program, allowing the department to continue to offer its programming at a funding level of approximately $30 million in 2013-14 and 2014-15. The investment contributes to the enhanced safety and security of on-reserve residents, particularly women and children.

The family violence prevention program provides funding to assist first nations in providing access to 41 family violence shelters and prevention activities to women, children, and families who are ordinarily resident on reserve. There are two components to the program: core shelter operating funding and proposal-based prevention projects in aboriginal communities.

Prevention projects may include public outreach and awareness, education campaigns, conferences, seminars, workshops, counselling, support groups, and community needs assessments. Since 2006 the family violence prevention program has funded 1,886 prevention projects that address family violence in aboriginal communities, 302 of which were supported in 2011 and 2012. They include the following projects.

The Alberta First Nations Regional Board for Family Violence Prevention is an example of prevention and partnerships. It manages the prevention project funding from Aboriginal Affairs and Northern Development Canada for three treaty areas and has formed partnerships with other organizations in hosting a series of youth gatherings.

The Lac La Ronge Indian Child and Family Services Agency in Saskatchewan delivers a comprehensive program in four schools that offer high school education. The program includes students, teachers, parents, and communities in reducing violence and risk behaviours.

Also, the Naskapi Nation of Kawawachikamach in Quebec currently delivers a multi-approach prevention project. It offers family violence education awareness workshops and radio talk shows in the community, parenting courses, training on bullying for teachers and school staff, workshops for children of alcoholic parents, and group sessions for alcoholics.

The project has also led to the development of a crisis intervention protocol for all partners involved in responding to family violence crises, such as the police and social, youth protection and native health workers.

The family violence prevention program also provides core funding of approximately $370,000 to the National Aboriginal Circle Against Family Violence, a national organization that supports aboriginal women's shelters and their staff through training fora, gatherings, development and distribution of resources, and research and collaboration with key partners.

The Government of Canada has also introduced legislation, the Family Homes on Reserves and Matrimonial Interests or Rights Act, Bill S-2, which protects vulnerable men and women on reserve.

Bill S-2 seeks to provide basic rights and protections to individuals on reserve regarding the family home and other matrimonial interests or rights. The bill would also help to address incidents of family violence against aboriginal women and their children on reserves by providing for emergency protection orders that grant temporary exclusive occupation of the home. Through this legislation, the government is addressing a long-standing legislative gap and ensuring that women, children, and families on reserve can live in safe and stable home environments.

The health and safety of first nations children is also a primary concern for this government.

The first nations child and family services program provides funding to assist in ensuring the safety and well-being of first nations children on reserve by supporting culturally appropriate prevention and protection services. These services are provided in accordance with the legislation and standards of the province or territory of residence and in a manner that is reasonably comparable to those available to other provincial and territorial residents in similar circumstances within the department's programming authorities.

In 2007 the first nations child and family services began shifting to an enhanced prevention-focused approach. This is consistent with provincial practices, which have largely refocused their child and family services programs by placing greater emphasis on prevention services.

The implementation of the enhanced prevention-focused approach is expected to improve services, cohesion of the family, and life outcomes for first nations children and families on reserve. Aboriginal Affairs and Northern Development Canada has increased funding for first nations child and family services dramatically over the past 16 years, from $193 million in 1996-97 to approximately $618 million in funding in 2012-13.

The enhanced prevention-focused approach is now being implemented in six provinces and is reaching approximately 68% of first nations children who live on reserve in Canada. Under the six current tripartite frameworks, more than $100 million per year in additional ongoing funding is now dedicated to implementing the new approach.

AANDC continues to share lessons learned and remains willing to work with other jurisdictions as they shift their own practices to enhance prevention. The government is also working to ensure that first nations students have access to education that encourages them to stay in school, graduate, and get the skills they need to enter the labour market. While the government invests significantly every year in first nations elementary and secondary education, we recognize that more remains to be done to make progress in improving outcomes.

In the economic action plan 2012, the Government of Canada committed $275 million for first nations education over three years for improving school infrastructure and to provide early literacy programming, as well as other supports and services to first nations schools and students, and to strengthen their relationship with the provincial school systems.

The Government of Canada is now consulting with first nations and other stakeholders on a proposed first nations education act, to be in place by September 2014. The purpose of the legislation is to establish the structures and standards to support strong and accountable education systems on reserve and to encourage students to stay in school and achieve better outcomes.

The government is also exploring mechanisms to ensure stable, predictable and sustainable funding for first nations elementary and secondary education.

An overarching goal of the Government of Canada's education programming remains to provide first nations students with quality education that provides them with the opportunity to acquire the skills needed to enter the labour market and to be full participants in a strong Canadian economy.

Perhaps the last thing I'd like to mention is that Aboriginal Affairs also provides support to national aboriginal women's organizations. In 2012-13, the Native Women's Association received approximately $1.5 million in project funding and annual core funding. This amount supports basic organization costs and provides a minimum level of capacity so that the organization can advise governments of its members' needs and interests.

In 2012-13, the Pauktuutit Inuit Women of Canada received approximately $1.4 million in basic organizational capacity funding and project funding from our department. These are some of the ways in which Aboriginal Affairs and Northern Development Canada is working to support and enhance the safety of aboriginal women.

We're certainly prepared to answer questions as best we can.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I thank the opposition House leader for his stream-of-consciousness therapy.

Our government, however, is very focused. Our top priority is jobs, growth and long-term prosperity. With that in mind, this afternoon we will continue second reading debate on the cornerstone item of our legislative agenda, which is Bill C-60, the economic action plan 2013 act, no. 1. We will continue this debate tomorrow.

Next Monday, May 6, will be the fourth day of second reading debate on this important job creation bill, and Tuesday May 7 will be the fifth and final day.

Once debate is concluded, the House will have an opportunity to vote on the substantive job creation measures in this bill.

On Wednesday, the House will debate Bill S-8, the Safe Drinking Water for First Nations Act. This will be the fourth time this bill is debated at second reading so it is my hope and expectation that this bill will come to a vote.

With the vote, there will be another clear choice before the House. Members will be voting to allow for national standards for on-reserve drinking water. This is a question of basic equality. I know the opposition voted against equality for women on reserves when it voted against Bill S-2, matrimonial property on reserves, but I hope they have stopped grasping at excuses to oppose equal treatment for first nations and will now support Bill S-8.

While I am speaking about aboriginal affairs, allow me to take the time to notify the House that I am designating, pursuant to Standing Order 81(4)(a), Thursday, May 9, for consideration in committee of the whole all votes under Indian Affairs and Northern Development in the main estimates for the fiscal year ending March 31, 2014.

On Thursday, we will continue to advance the economic priority of our legislative agenda by debating Bill C-48, the technical tax amendments act, 2012, in the morning. Following question period on Thursday, May 9, we will continue Bill S-9, the nuclear terrorism act at third reading. I understand there is broad support for this bill, so I hope to see it pass swiftly. Then we can move on to other legislation, including: Bill C-49, the Canadian museum of history act; Bill C-51, the safer witnesses act; Bill C-52, the fair rail freight service act; Bill S-10, the prohibiting cluster munitions act; Bill S-12, the incorporation by reference in regulations act; Bill S-13, the coastal fisheries protection act; and bill S-14, the fighting foreign bribery act.

Finally, Friday, May 10 will be the seventh allotted day, which I understand will be for the NDP.

[Jeffrey Cyr]

I agree. I agree that with every piece of legislation, this is the way. That's what I talked about: looking at the complexities, how legislation is brought in. It has far-reaching implications that sometimes are not thought of.

On the human services side—those things that allow people to properly access the changes that are going on—in Bill S-2, which I don't necessarily disagree with, there are still a whole bunch of services that need to happen and there still needs to be a way to access them.

Yes, there needs to be a greater acknowledgment of that.

[Jeffrey Cyr]

All the time. What I tried to get to in my comments, though probably a little more generally, is that people who live on reserve, whether facing issues of matrimonial real property or not, come to urban centres and ask where they do these things and how the city works. It's like a foreign country. It's like moving to Paris. Where do I get my basic services, and how do I live? That is not always crystal clear. There aren't always service centres where you can go and figure it out. That's what friendship centres were originally there to do. The original concept of a friendship centre is a familiar face with a familiar language who says you need that, you need to go over here, even if you're pointing at a United Way service, or a government service, or whatever it is. So it's that ability to help those who need help when they need it. That's why it's called friendship.

This is really a point about long-term planning. Legislative changes are fine, and I won't speak to the law and the legalities of Bill S-2 and how the bill is written. What we're speaking of here is the planning that comes both before and after that. How do we pick up the pieces?

Mixing social issues is very complex in the urban environment. I would suggest a lot of thinking has to go in as implementation happens about where people are going to get service. If you have a year's waiting period, that's going to be a busy year, I bet, for people to figure out how they are going to do this. Yes, a legal centre of excellence is proposed for first nations to access, and that's great, but there's a human component that I want to talk about, and that human component needs to figure it out. They're going to ask what happens in one year.

[Jeffrey Cyr]

The reasons make a pretty long list, but we'll try to put some of it in plain speak.

People have been migrating to cities from rural areas and reserves at a fairly rapid pace for the better part of 50 or 60 years. This is not a trend unique to Canada. It's happening around the world. People migrate for a couple of key reasons, usually it's driven by economics. You want a certain level of education, or you want a certain level of access to employment. As you well know, around the country, around certain reserves and rural communities, for Métis or Inuit as well, that opportunity doesn't exist. So you need to travel. You may come back to your community, but you need to travel to find those opportunities.

There are other reasons as well: health care. Where do you have access to health care and access to services more generally? This refers directly to Bill S-2 because people leave divorce and separation situations for a variety of reasons when they occur, and they need services. I know this. I was divorced six years ago. I went through the process, and it's not fun. There's not a lot of guidance, even if you're not aboriginal and aren't dealing with the complexities of a first nation's law or Indian Act law on reserve, and the complexities of inter-working that with provincial law as well.

For this committee, the problem exists of access to services for those people affected by Bill S-2, or affected both before and after Bill S-2's potential passing, and it's going to exist for a long time. One of the reasons is that it takes a long time to resolve marital and other spousal disputes on or off reserve. It takes years, and in those years you need service. Ninety days is nothing; 180 days is nothing in that situation.

So what do those people do? Their home community, whether it's a reserve or not, may not be a friendly place to be for 180 days.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

The best interests of any children, in other words, should be considered as a result of a divorce. That's one of the factors in Bill S-2, and I'm wondering what your comment is on that. Do you consider that as an important factor?