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.

[Wai Young, Conservative, Vancouver South, BC]

I really want to thank you for being so brave, for coming today and sharing your testimony with us. It is truly, truly heartbreaking to hear your story, which is why we are here today.

I'd love to spend more time sharing our stories, because many of us have, in many different ways, worked with first nations and have walked with them. I have worked to build shelters and homes in the downtown eastside in Vancouver. Many of us in Manitoba, Calgary, and across...we have worked in shelters and with school children who have been similarly evicted and tossed away from their communities, as in the story you've told. We certainly have never walked your walk, of course, but we really want to walk alongside you, which is why we're here today to talk about Bill S-2.

Earlier on we heard testimony from the Congress of Aboriginal Peoples, which supports this new legislation. Vice-Chief Swain talked about the fact that he is now the third generation. His grandmother was evicted from their community and their home, and they have had to spend time away from that community, etc.

So we hear your current stories, and for over 25 years we have identified this legislative gap—we know there's a gap there—so we are presenting Bill S-2, which is legislation to close that gap to give you the rights that other Canadian women have.

If what happened to you happened to me, I would have a different outcome in the courts, right? And you have experienced everything in terms of hanging on through all of the pain, and in fact being evicted from your home and your community, where, in your case, Ms. Courchene, the home was vacant. Is that correct?

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

Within my constituency, we have three reserves. In my last four years, before I became a member of Parliament, I taught at a school on a reserve. I, too, saw many breakups; I encountered them with the children.

What do you see in the bill that will provide protection for the children? I focus on that. Lots of times these children are really in quite a state, trying to come to school and put up with things that are going on. Do you see Bill S-2 as something that is going to help the children as well?

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

Thank you, Madam Chair.

Thank you for being with us this morning. I'm sure we all recognize that you have a lot of experience to offer with your line of work, and with the fact that you, too, had two breakups. You can see the importance of this bill, and I'm happy to see that you spoke of the importance of Bill S-2.

Now, you know and I know that our government has always sent a clear message that violence against women, wherever it occurs, is something we cannot tolerate. But women on reserves are being abused and victimized, without the protection they need, and especially without the rights and protections that all Canadians receive. Our government is really working hard to make this happen, so there is less violence and so that women have their rights.

MP Ashton mentioned that no consultations had taken place, but we know that 103 consultations across 76 communities have taken place, at a cost of $8 million for the government. That is a prime example to show that our government is sincere and really wants to make this happen.

Would you agree that Bill S-2 would provide first nations' women with matrimonial property protections and would provide them with the rights on reserves that are similar to those enjoyed by all other women in Canada? That is our objective here, because we need these women to enjoy the same protection as other women have across Canada.

[Niki Ashton, NDP, Churchill, MB]

I understand.

You just spoke about why you support the legislation, but if I can go back to a presentation that Betty Ann Lavallée made to the Senate committee, one of the points she raised was that she didn't see provisions in this bill creating emergency shelters. What we're hearing from a number of people is that there is no commitment to non-legislative measures. Bill S-2 still does not have any component containing provisions for emergency shelters. How is CAP okay with that? How do you feel about that?

[Ron Swain, National Vice-Chief, Congress of Aboriginal Peoples]

Thank you, Madam Chair. I'm here with my colleague, Julian Morelli. He's our communications director at the Congress of Aboriginal Peoples.

Good morning, Chair and committee members. It's a pleasure to be here on the traditional territory of the Algonquin people to speak to you about matrimonial real property on reserve. I am the national vice-chief of the Congress of Aboriginal Peoples. As you know, National Chief Betty Anne Lavallée was to speak this morning, but unfortunately she was taken ill and asked me to make this presentation in her place. She sends her regrets.

Since 1971, the Congress of Aboriginal Peoples, formerly known as the Native Council of Canada, has represented the interests of off-reserve status and non-status Indians, southern Inuit, and Métis throughout Canada. Today, over 60% of aboriginal people now live off reserve, and this number continues to grow. The congress is also the national voice for its affiliate organizations and advocates on behalf of aboriginal people living off reserve throughout Canada.

The issue of matrimonial real property on reserve is certainly not new. The Aboriginal Justice Inquiry of Manitoba addressed this as far back as 1988. At that time, the inquiry recognized the need for an equal division upon marriage breakup under the Indian Act. In addition, the Royal Commission on Aboriginal Peoples put forth recommendations on the issue. Over the last ten years, numerous studies and reports have been issued by the House of Commons and the Senate. A number of pieces of legislation have also been introduced by both the Conservatives and the Liberals.

The Congress of Aboriginal Peoples supports matrimonial real property, and we feel it's time to move on. This legislation should not come as a surprise to anyone. Aboriginal organizations, including the congress, along with aboriginal people were consulted on matrimonial real property in 2002 through the Joint Ministerial Advisory Committee. In fact, under this committee we helped draft the legislation for the first nations governance act.

In 2003, the Standing Committee on Human Rights released an interim report called “A Hard Bed to Lie In: Matrimonial Real Property on Reserve”. This report is still relevant today. It outlines the importance of matrimonial real property for a variety of reasons by emphasizing many of the barriers aboriginal women face, including factors that intensify additional inequality and discrimination toward women in these circumstances.

One story in this report really was quite striking. An aboriginal woman and her five children were forced to leave their reserve. They lost their social support and were left with limited finances in search of a home. This woman sought assistance for affordable housing, but was turned down and ended up living in a rundown boarding house. Child and Family Services intervened and took her children. In the end, she could not take it anymore and in despair took her own life. This is just one tragic example, and there are surely thousands more. Yet these hardships continue today. For example, many women are forced to leave their reserve after a marriage breakdown. Those who leave the reserve in search of affordable housing could find their position quite grim.

Let me give you an example. In 2006 the federal government entered into the off-reserve aboriginal housing sector. They allotted $300 million over three years to the provinces for off-reserve affordable housing. Not one of our affiliates received the full amount of funding. When the federal government gave money to assist off-reserve housing, the money didn't get there. One province under this program received $38.2 million and refused to provide any resources for off-reserve housing. This particular province refused to assist off-reserve housing initiatives because, and I quote, “they had other priorities”. My question is simple. Where are these people supposed to go?

This is why our organization fought so strongly for all aboriginal people to be included under subsection 91(24) of the Constitution Act of 1867. People who leave reserves for whatever reason should still have their rights. They are rightful partners in Confederation. They are a federal jurisdiction. Once a person leaves the reserve, they no longer have the same level of services or support available to them. They are simply not getting the help they need.

Obviously, conditions differ in every region of Canada, and individuals have their own unique challenges to deal with. However, I find it appalling that in this day and age aboriginal women continue to encounter discrimination and inequality and are literally being deprived of their rights.

The Constitution Act of 1982, under subsection 35(4) states:

Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

This is not the reality for aboriginal women.

We, at the Congress of Aboriginal Peoples, understand the complexities of this legislation, but this is no excuse. This is legislation that should have gone through years ago. How land is managed and allotted on reserves plays a big part in how matrimonial real property is exercised. There are reserves that have different categories of land on the same reserve: for instance, a reserve is regulated by the Indian Act or voluntarily adheres to the First Nations Land Management Act or a self-government agreement.

The Indian Act itself is problematic on a number of levels. It does not enshrine the treaty relationship, but in many cases it undermines or seeks to replace it. It was introduced and amended by governments that took a paternalistic view towards aboriginal people. It is more about limiting the day-to-day existence of status Indians and reserve communities than it is about implementing and building relationships with sovereign people who entered into this act without their consent. The lack of matrimonial real property is probably the most honest example of what is wrong with the Indian Act at its root.

Some communities have voluntarily adhered to the First Nations Land Management Act to get away from the Indian Act. A small fraction of those communities have made the necessary steps in recognizing the division of family assets, but there are still difficulties for women when it comes to exercising those rights.

The Standing Committee on Human Rights' interim report states that “the federal policy on self-government calls for the application of the Charter”.

The Government is committed to the principle that the Canadian Charter of Rights and Freedoms should bind all governments in Canada, so that Aboriginal peoples and non-Aboriginal Canadians alike may continue to enjoy equally the rights and freedoms guaranteed by the Charter. Self-government agreements, including treaties, will, therefore, have to provide that the Canadian Charter of Rights and Freedoms applies to Aboriginal governments and institutions in relation to all matters within their respective jurisdictions and authorities.

This legislation accommodates for the different land management on reserve. It allows for communities to establish laws that are specific to their culture and their traditions.

It has been argued that Bill S-2 could be interpreted to imply that it impedes on the non-derogation clause found under section 25 of the Canadian Charter of Rights and Freedoms. Our organization strongly supports the non-derogation clause, in that nothing should abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to aboriginal peoples of Canada.

I honestly believe that ensuring equal rights to both men and women does not impede upon aboriginal treaty rights. On the contrary, I would argue that not backing this bill is disallowing equality for all aboriginal people.

The Congress of Aboriginal Peoples strongly supports matrimonial real property on reserve. We recognize that by implementing this legislation, many communities will be burdened with an increase in responsibility. For this reason, it is important that communities be provided with the necessary tools and financial resources to assist them in implementing this important legislation. This is an instrumental bill. It is important that we don't impose legislation on aboriginal people and their communities, but rather help aboriginal people by establishing a reciprocal relationship in working together and supporting aboriginal communities to ensure they are able to integrate equality while maintaining their cultural values and traditions.

Thank you for this time.

[Jo-Ann Greene]

Madam Chair, to understand the difference, those first nations that are choosing to go under the FNLM are choosing to opt out of the Indian Act, with about 34 provisions related to land management that currently would apply to them.

Under Bill S-2, they don't have to do that. They can develop laws to address the issue of matrimonial real property in their community, and that bill will stand alone. Through the provisions, they have the ability, should they choose, to have courts apply their law. They can set up whatever form they want. It's up to them. It just has to be compliant, as all laws in Canada, with the Canadian Charter of Rights and Freedoms, and now, where applicable, with the Canadian Human Rights Act.

It's important to recognize that there's a huge difference between the FNLM group—that's a part of it, the requirement to address those gaps that are present. It's the same for those first nations choosing to go under self-government agreements that matrimonial real property has to be addressed in some way.

[Jo-Ann Greene]

Certainly. I'll speak to that, Madam Chair.

One of the things I know my colleague has mentioned, but I want to reiterate, is that the bill is to address a gap in protections and rights for women, children, and families living on reserve. It only applies to those first nations that have a reserve community, and it is a first step in trying to address some of these problems that arise.

It's not meant to be comprehensive and address them all. It's for a specific purpose, and to that end the ratification part was one of the ways that, during consultations, women said they wanted some form of having input or knowing about the community's laws. So that is part of one of the...from the original it was included, but it has been changed and Bill S-2 actually has been lowered to set participation rate—

[Stella Ambler, Conservative, Mississauga South, ON]

Sure. What I also hear you saying is that the process, especially in the centre of excellence, is going to be flexible depending on who they are dealing with. They're not going to say, here is Bill S-2 and you have to apply it this way, using this language, and implement it this way. Would that be correct?

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

Good afternoon.

Thank you to the witnesses for being here again.

Yesterday, the Quebec Native Women's Association issued a press release that reiterated its opposition to Bill S-2, Family Homes on Reserves and Matrimonial Interests or Rights Act.

The president said that the bill would not comply with standards set out in the Quebec Civil Code regarding the division of matrimonial assets in the case of separation or death. However, given that 40% of native couples are in a common-law marriage, that affects 40% of women.

My question is for Mr. Jacques, from the Department of Justice.

Did your department analyze the differences there would be in the application of the provisions of Bill S-2 in Quebec, knowing that the province did not have the same legal system?

Did the department conduct impact studies on the application of Bill S-2, based on the Quebec Civil Code, to identify possible contradictions or a legal uncertainty?

[Jo-Ann Greene]

The implementation plan unfolds in stages, of course, because with the changes to Bill S-2 before it was introduced, with the addition of the 12-month transition period, the provisional federal rules within the act don't come into force until a year after the first part of the bill, which is the first nation law-making mechanism, comes into force by order in council.

Right off, there are three parts to the implementation plan. It's a communication awareness campaign. The second part is the establishment and maintenance of a centre of excellence over a five-year program at this point, which we talked about earlier. The other part is training and education for front-line officials and officers, which includes training through the RCMP and public safety for the policing and education of Superior Court judges. Superior Court judges are at the level at which the provisional federal rules have the ability to be addressed since they deal also with divorce law.

It's intended to have regulations to help court procedures related to emergency protection orders. We've already had some engagement sessions on potential regulations with provinces and territories. Another session will be conducted in the development of that, and they are to be in place, of course, by the time the second part of the bill comes into force, the provisional federal rules part of the legislation.

Through that time also, the centre of excellence will be operating to assist first nations as that part of it comes into force with the order in council, as well as to also provide information and support—

[Wai Young, Conservative, Vancouver South, BC]

We talked a lot yesterday about violence against women and children in the home, and about why the emergency orders are such an important part of Bill S-2, but nobody has bandied about any figures in terms of how much violence there is.

I think the minister said something about 19%, which is three times the amount that other non-first nations situations have. That, I would think, is quite a bit—three times the amount of violence against women and children.

Obviously we know that emergency orders protect lives. Do we know how many deaths there have been in this area, and what we're anticipating in terms of saving lives once Bill S-2 is enacted?

[Andrew Beynon]

Maybe I would start the answer to that by saying that with regard to the centre of excellence that was referred to earlier, we will have to consider after, or if, the legislation is adopted by Parliament how the centre of excellence will be set up and exactly what the funding level will be.

I would just share with the committee that in the proposals that have been published so far, inviting aboriginal institutions or organizations to consider becoming the centre of excellence if the legislation is passed, the public documents identified a maximum potential funding of approximately $4.8 million over a period of five years. Now, that's subject to, again, the legislation being passed and subject to Treasury Board approval of the level of funding if the legislation is passed, but it gives a sense of the investment.

The other area that I would flag for the consideration of committee members is that in our implementation planning there is consideration of some funding for the RCMP and the Department of Public Safety to assist in advancing the legislation and interactions with the provinces.

I will say that I understand the point the member is making about the broad range of issues that really are at stake. There are housing issues, women's shelters issues, and improving schools issues. There are many issues. On that front, I can only say that these are some of the implementation investments. Those other issues, I think, are a point that the committee can consider and make recommendations on, but in the legislation, Bill S-2, we did not choose to put right in the provisions of it issues around implementation, such as funding of women's shelters.

[Niki Ashton, NDP, Churchill, MB]

How about the piece around the non-legislative measures? It's obviously a real concern around costs incurred to the bands, to the legal systems, and the fact that we're not dealing with.... There are about 40 women's shelters across the country on reserves, out of some 600 first nations, which is obviously completely inadequate. This bill has nothing to do with that.

We're very concerned, obviously, and a number of first nations and stakeholders raised real concerns about how Bill S-2 will simply not end violence against women when all of these other matters are not being dealt with, and when the investments aren't being made by the federal government. Why aren't the non-legislative measures, which are critical, being addressed at all?

[Niki Ashton, NDP, Churchill, MB]

Thank you for that, and also working to have real timelines on that, on the before and after.... I mean, Bill S-2 is not Bill S-4. It's Bill S-2, right?

[Andrew Beynon, Director General, Community Opportunities Branch, Department of Indian Affairs and Northern Development]

Perhaps I could just say this while my colleague is looking that up, Madam Chair. On the request for some details on the exact consultations, which the member asked for, we would be prepared to share with the committee a list that provides information on the consultation sessions held before the formulation of Bill S-2 and afterwards.