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.

[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?

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

Thank you for your comment.

I'm wondering, have you discussed with your membership the factors that must be considered before the granting of an exclusive occupation order as laid out in clause 20 of Bill S-2?

If so, what was their comment, their reaction?

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

This clause allows a court that is already hearing the spouse's divorce proceedings to address the items outlined in Bill S-2 at the same time as the divorce proceedings, and then this way spouses who are already going through a divorce will have the option to include the legal discussion and the vision of their matrimonial real property as well as the determination of the final occupation of the home. This will not create further visits to the court. The goal is to simplify the process wherever possible so that a full slate of services can be provided with one visit. I'm wondering whether you think that men and women going through a divorce should have the option to legally divide their matrimonial real property and determine who will occupy the house.

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

Okay, thank you.

Are you familiar with the purpose of the section on divorce proceedings pending in subclause 43(2) in Bill S-2?

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

Thank you, Madam Chair. I want to thank the witnesses for being here today.

I want to also assure you that our government has always sent a clear message that violence against women, violence among families will not be tolerated.

As you know, I have had many consultations during our study on this, over the process of Bill S-2, and we have namely had 103 at a cost of $8 million. Now, having taught on a reserve, I have witnessed issues and seen the need to act on this and how important it is to stop violence against children, stop violence against men and women as well. That is the aim of our study and our government and our status of women committee. We need to see this proceed and carry on.

You also mentioned at one point that the emergency days cannot go beyond 90 days. I want to cover this before your time is up, Kim. This has been changed, and those 90 days can go on to whatever is decided in the court. So that is an important change, and it's important we all know that.

You also mentioned that you were speaking with your grandmother, and I was also at this point wondering if you have spoken to any other women and what was their comment. They must see some good issues in this.

This is to Kim.

[Dr. Kim van der Woerd]

Great, I'm almost done.

We note the emphasis on legal remediation within Bill S-2 is in keeping with the mission of the YWCA on ending violence against women and girls. We advocate for the recognition of, and need for, prevention services and programming to work toward eradicating violence on reserve.

To conclude, YWCA Canada recognizes the positive intent of the changes within Bill S-2 and advocate for sufficient and appropriate provisions to be in place to support aboriginal women and children and ensure the efficacy of this bill.

Thank you.

[Dr. Kim van der Woerd, Board Member, Metro Vancouver, Young Women's Christian Association]

Good morning. Gilakasla.

Thank you, Madam Chair and other members of the standing committee, for including our testimony on Bill S-2. Deborah Campbell sends her regrets; she's not able to make it this morning. I too would like to acknowledge the Algonquin nation, with whom you're meeting today, for having you on its territories.

My name is Kim van der Woerd. I'm a member of the 'Namgis First Nation from Alert Bay, B.C. My traditional name is T,lalisam, which is from the killer whale clan. I also serve on the board of directors with the YWCA in metro Vancouver and I'm here today to represent the YWCA.

I was speaking with my grandmother in Alert Bay about Bill S-2 and asked her if she was familiar with it, and she said she was. She told me about many situations in our community where women were removed from their homes and had nowhere to go with their children. She said that sometimes they were able to deal with this when they had family who could take them in and support them physically, mentally, emotionally, spiritually, as well as the financial support.

I asked her about what life was like in our community before there were rules and laws around property and housing. She told me about life when she was growing up, and she told me stories that her father would tell her. She said children grew up learning and knowing that they would build their own homes as young people and that they did not rely on government for housing. She spoke about how we were all independent before many of the laws of the Indian Act and that we were able to be independent because of the support from our communities and that the provisions were in place to be independent.

I would first like to acknowledge and recognize the positive intent with the proposed changes to this bill and the intention to improve the lives of aboriginal women. We appreciate, applaud, and respect the efforts made in this regard, and what we would like to share with you today is the YWCA's perspective on provisions that would make Bill S-2 successful.

We understand that the purpose of Bill S-2 is to provide powers to enact laws relating to the use, occupation, and possession of family homes on reserves. The bill and any resulting legislation would apply to all first nations and be implemented within 12 months of enactment. While changes to the bill have been positive with this fourth iteration, we find that there are still factors that need to be addressed.

We understand there has been opposition in the following areas that have been mentioned, from what we've been hearing already. First is the lack of first nation consultation. We recognize that we're currently in a round of consultation, but going forward we recommend open and meaningful engagement in this process. We understand that there has been opposition around jurisdiction with first nations' governments, and issues related to provincial courts and the Indian Act rules. We understand there are issues around community capacity to implement, which my colleagues have been discussing. We also recognize that there are burdens on citizens and safety considerations. Opposition to the bill highlights the complexity of violence in aboriginal communities and the need for comprehensive responses.

With respect to burdens for aboriginal women and families, the bill does not address the following considerations. There is a lack of access to emergency shelters, both on and off reserve. There is limited access to nearby and cost-appropriate legal services. There is a lack of adequate housing on reserve. There is limited access to counselling and other support services, and there is a need for infrastructure and human capacity investment that benefits aboriginal women.

I will now briefly speak about what we know about aboriginal women in Canada with respect to the experience of violence, housing, migration off reserve, and access to legal and emergency services. In 2011 the YWCA Canada commissioned a report, “Aboriginal Women's Initiative”, and some of the key findings are as follows. 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.

We know that many aboriginal women leave reserves and our research tells us that they leave reserves because of experience of violence, difficulty in accessing services and supports, lack of housing, and discrimination in legislation around aboriginal women's rights on reserve. Many reserve communities are not located near legal services or emergency support services and this report summarizes the need for 24-hour services, increased community awareness, emergency support, and the need for transition and support services for aboriginal women and single mothers.

The YWCA is committed to ensuring that women and children are able to live safely and securely. The YWCA is the single-largest provider of shelter services to women and children fleeing violence and provides holistic programming that reaches out to more than one million women and children in Canada.

The YWCA Canada recognizes the rights of aboriginal communities to self-government. The YWCA Metro Vancouver has a long history of supporting aboriginal women and children in our community by providing tailored programs such as infant development, violence prevention, legal education, financial literacy, FASD awareness, housing, and mentorship. We have served tens of thousands of women through these programs.

The YWCA Canada is currently working with 10 member-associations on an access to justice project for aboriginal women dealing with violence. That's just under one-third of our membership. Each of these 10 member-associations have service populations of 65% aboriginal women or higher.

The YWCA Canada identifies interlocking advocacy priorities for women that complement the analysis of Bill S-2 as it applies to aboriginal women who experience domestic violence on reserve, including ending violence against women and girls, access to affordable housing, and achieving women's economic security.

Based on our services, advocacy, and research, the YWCA has the following conclusions and recommendations for ensuring the effective implementation of Bill S-2 to fully support aboriginal women and children. YWCA Canada understands that there needs to be a comprehensive response to Bill S-2 to go beyond the jurisdictional issues and address burdens for aboriginal women and families. YWCA Canada emphasizes the right of aboriginal women on and off reserve to have access to safe and secure housing and shelter, and advocates for a national housing strategy to raise awareness and support for the provision of affordable housing.

The YWCA recognizes that Bill S-2 has the following provisions. In cases of death of a spouse or partner, occupation can be granted for 180 days from the date of death, and in cases of domestic violence, the person who applies for access can be granted 90 days of occupation without the offender in the home. Our research and experience in delivering services with the YWCA finds that 90 days is not sufficient time for a woman to develop and execute a plan to lead an independent life. This is of course in the cases where the women does not hold the certificate of possession. We recommend a review of this timeframe to accommodate the complex needs of women leaving abuse. However it is appreciated that this provision can be modified on a case-by-case basis. We do note the potential additional burden for aboriginal women applying for these additional days.

The comprehensive recommendations advanced by the Assembly of First Nations and the Native Women's Association of Canada overlap with the YWCA's stated positions on violence against women and economic security. Responses must be comprehensive and consider family support services, emergency support, shelters, effective cross-jurisdictional policing, services to prevent child welfare interventions, and increased awareness of and support for affordable and appropriate housing.

Finally, we note the emphasis on legal remediation—

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you very much.

On behalf of the committee, I wish to apologize for interrupting your time here as well. I know that we had votes, so your time was cut short.

I want to go back to Chief Louie.

I was talking about the provisions under Bill S-2 that deal with one of the issues you spoke about. It had to do with leased property on reserves. There was some concern that if it automatically changes to someone else who wasn't named on the original document, perhaps the upkeep of the home was not going to be there and there were going to be some other issues.

Were you aware those provisions to deal with that specific issue were actually in Bill S-2?

[Roxanne James, Conservative, Scarborough Centre, ON]

I know you're concerned about the timeframe and about one year maybe being not long enough. I know you're probably aware that there have been four iterations of this particular bill. The planning actually began way back in 2000 or 2001, but consultations across this country started in 2006. I believe there were over 100 consultations spread over 76 different sites.

I just wonder if the reason the timeframe isn't long enough, even given an additional 12 months after this legislation is actually approved or receives royal assent, is that some of these first nations were maybe not in the initial consultations or they have never heard of this. I'm just trying to get an understanding, because some of us around this room.... In fact Mr. Langtry from the Human Rights Commission was here yesterday, and he described this issue of matrimonial real property as an urgent human rights matter.

He said:

Both international and domestic human rights standards call for the equal treatment of women under the law. These same standards also call for the protection of women and their children against violence.

When I hear the word “urgent” and I think that the legislative gap for this has been 25 years and it is growing, and I think of the consultation process and the planning, and we're talking about an additional one year to actually implement your own legislation...I'm having a difficult time understanding why there hasn't been enough time.

But I just want to switch over to something else at this point. It has to do with something I believe you mentioned, Chief Louie. You were concerned about leased property on reserves. I don't know exactly what you said, but there was some concern that the leased property would not be kept up or there could be a problem with that. I wonder if you're aware of the clauses within the bill with respect to leases.

I just want to read something, and I want to make it very clear that where a spouse or common law partner or survivor is granted exclusive rights to a leased premise and is not actually named in that original lease, the provisions deemed in that original lease apply to the person who now becomes the lessee. I know you said something and there were some concerns about someone maintaining or keeping up the property, and I just want to clearly indicate that this bill, Bill S-2, actually covers that, and it should not necessarily be one of the major concerns that you did forward today.

Madam Chair, how much time is left?

[Niki Ashton, NDP, Churchill, MB]

In terms of the funding capacity, what are first nations working with, by and large, to be able to implement or tackle Bill S-2, if comes down?

[Niki Ashton, NDP, Churchill, MB]

I appreciate that feedback, because, unfortunately, the debate around Bill S-2 has been reduced to some pretty outrageous statements. Unfortunately, we hear from both of you and certainly your colleagues who are with you, that there are some real concerns and there are ways of getting around these concerns. But by bringing closure to the debate and by preventing the key stakeholders from speaking to us, we are unable to make those changes, and certainly we're keen to see if the government will continue that stand over the next week.

Going back to the limited capacity or no capacity that many first nations face in terms of implementation, I'm wondering if you could speak to that, Chief Wilson-Raybould.

[Niki Ashton, NDP, Churchill, MB]

Thank you very much, Chief Wilson-Raybould and Chief Louie, for joining us.

Not only is it unfortunate that we had the votes, it's even more unfortunate that you don't each have an hour to present to us—and not just an hour but beyond an hour—because we realize that the concerns you're raising are not just key but that you also represent, certainly, in the case of the AFN, the stakeholders who are most impacted by Bill S-2. I'm very proud of the fact that our side expressed real opposition to the fact that there hasn't been enough time to hear from the key stakeholders.

I have a quick question. Will Bill S-2 save lives? Maybe we can start with Chief Wilson-Raybould.

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

Thank you.

Chief Wilson-Raybould, I want to ask you this question too. Bill S-2 is about fairness, equity, and providing protections and rights for residents on reserves. We acknowledge that the bill is not going to, nor is it intended to address the broad issues of poverty or housing shortages on reserves.

We heard stories a couple of meetings ago from women who have lost their homes because the men were able to retain ownership, despite the fact that the woman had financed the entire building of the home and renovations. What would you say to these women who have gone to court to obtain ownership of a home they built, only to find it's not possible because the rules didn't apply on the reserve?

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

Thank you, Madam Chair.

I'd like to thank you for coming today. It's important that we hear from you. I'm sorry we were late, but we had a vote.

I want to ask Chief Wilson-Raybould and Chief Louie for the record, have you read Bill S-2 in its current form?

[Chief Robert Louie, Chairman, First Nations Lands Advisory Board, and Chief, Westbank First Nation]

Thank you, Madam Chair.

Honourable members of the committee, thank you for providing me, as chairman of the First Nations Lands Advisory Board, this opportunity to respond to Bill S-2.

The Lands Advisory Board is very supportive of aboriginal communities addressing the topic of matrimonial real property on their reserve lands. This topic has been a critical component of the Framework Agreement on First Nation Land Management from the beginning. In fact, to ensure that everyone would be aware of this opportunity for law-making with respect to matrimonial real property rights, we added clauses 5.4(a) to 5.4(f) in our framework agreement.

The Lands Advisory Board has more than 10 years of experience actively dealing with law-making for matrimonial real property rights on reserve. For example, since 2001, the board assisted 23 operational first nations in completing their matrimonial real property laws, 14 other operational first nations with drafting their matrimonial real property laws, and 30 developmental first nations with planning for their matrimonial real property laws once they have ratified their land codes.

The framework agreement signatories include the only first nations in Canada who presently have laws dealing with matrimonial real property on reserve that are enforceable in the courts. Furthermore, the framework agreement is the only existing mechanism that provides the signatory first nations with the opportunity to address matrimonial real property rights in unique ways, consistent with their own community policies and traditions. I can use as an example communities that choose not use the certificate of possession system as set out in the Indian Act. They must accommodate their own traditions and not someone else's view of what their traditions and customs ought to be.

I anticipate that the framework agreement signatories will be unaffected by the proposed legislation since most, and hopefully all, of our first nations will have their matrimonial real property laws in effect within three years after royal assent is given to Bill S-2.

The Lands Advisory Board is, nevertheless, concerned about the potential impact of the proposed legislation on the 68 first nations that are presently waiting to become signatories to the framework agreement, and the other communities across Canada. They are very likely to be caught up by Bill S-2 before they have the opportunity to sign the framework agreement.

Based on the Lands Advisory Board's experience and success with matrimonial real property laws under the framework agreement, we would make the following observations concerning Bill S-2.

With respect, the provisional federal laws will apply, by default, to most first nations, due to the challenges entailed in developing their matrimonial real property laws. Successful enactment of these laws by framework agreement signatories has invariably been the culmination of a multi-year, community-driven, consensus-building process addressing values, principles, practices, and procedures related to the governance and management of rights and interests in reserve lands.

Successful enactment of these laws by framework agreement first nations has always been a community-led priority and has required significant external legal and technical advisory support. It is unrealistic to assume that those first nations for whom land governance and management has not been given a priority will be able to expedite development of their own custom matrimonial real property laws in time to be exempt from the provisional federal rules. Community leadership will be sorely challenged in attempting to build a consensus reconciling their matrimonial real property laws and community customs with provincial laws of general application that also come into play in the event of separation and divorce. We know this can be done, but it takes time.

The complexities of these laws on reserves include the need to address and resolve a host of other local governance issues related, for example, to the appropriate balance between individual and collective rights, claims of rights to reside on reserve, housing policy, and distinctions between individual, common, and estate lands. Bill S-2 makes no provision to compensate first nations for the extensive and unavoidable legal and administrative costs entailed in development, enactment, and administration of their own, unique first nation matrimonial real property laws. This lack of resourcing will be fatal to the efforts of many communities to enact their own matrimonial real property laws. Essentially, Bill S-2 is not about community governance at all, because of this forced imposition.

Provinces may be reluctant to participate in adjudication under the provisional federal rules. Through experience with the Lands Advisory Board and the framework agreement, first nations have found provincial governments to be uninterested in assuming any roles with respect to monitoring, dispute resolution, and/or enforcement with respect to first nation land laws generally. Provincial governments cite concerns related to lack of capacity to accommodate the current workload of their judicial systems, uncompensated costs they would incur, and the risk of attracting liability. Bill S-2 does not address, much less resolve, these issues.

The impact of Bill S-2 may be much more extensive than has been anticipated. Canada appears to be working on the assumption that the primary focus of cases subject to the legislation will be a small subset of the 100,000 dwelling units on reserve for which formal land tenure arrangements are in place, pursuant to sections 20, 28(2), 53, or 58 of the Indian Act.

However, the provisional federal rules proposed in Bill S-2 open the door for provincial judges to interpret the definition of a family home, and for the subsequent accumulation of a body of case law that may interpret these laws very differently and more expansively than intended. The definition of a right or interest in a family home on reserve could well be extended through case law to include the right to occupy band-owned housing, which would have implications for housing policies and perhaps financial costs to first nations.

If this were to happen, many more cases could be anticipated. A provincial court could attach a monetary value to the right to occupy band-owned housing, free of rent or other charges, for the rest of the life expectancy of the occupants. The net present value of this stream of housing benefits, calculated like the net present value of an annuity, could amount to several hundred thousand dollars per family home, which would have to be paid to the departing spouse. In many cases, the alternatives of sale or sublease of the property would not generate the funds necessary to meet the award. Such precedents would create significant liabilities to be borne by either the first nation member spouse who retains the family home, or more likely in practical terms, by the first nation.

Based on the Lands Advisory Board's experience and success with the framework agreement, we respectfully suggest that the committee consider the following recommendations regarding Bill S-2.

I have six recommendations. Given the timeframe I will list the headings, and I'm certainly prepared during the answer period to go into more detail, Madam Chair, if that's proper.

The first recommendation, remove the mandatory timeframe and make Bill S-2 optional. The second recommendation, address first nations' jurisdictional concerns. The third recommendation, identify resources for first nations. The fourth recommendation, provide for a transitional first nations mandated agency to support communities. The fifth recommendation, apply the principles of proportionality and reasonableness. The sixth recommendation, respect freedom of contract.

Madam Chair, thank you very much. I wish I had more time to elaborate further, but perhaps I can during question period. I'm certainly going to be assisted by my very experienced colleagues here.