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.

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I thank the member for his question. It was a sincere question, and I appreciate it.

There are numerous reports that deal with matrimonial real property that make solid recommendations. I am talking about “A Hard Bed to Lie In”, 2003; “Still Waiting”, 2004; “Walking Arm-in-Arm”, 2005; the Status of Women Report, 2006; and the Wendy Grant-John ministerial report from 2006.

All of these reports could have been guidelines for the government. They spoke to the issue of matrimonial real property rights and provided very substantive recommendations. A number of the aboriginal organizations across the country supported those recommendations. The question is this: Why did the government not heed those reports and follow those recommendations? The work had already been done, which is what I find so sad.

Aboriginal women have been waiting for such a long time. The government had a number of reports that provided substantive recommendations, but instead of following those recommendations, the government ignored them. Then, when first nation organizations said that this bill was inadequate and would do more harm than good, the government refused to listen to those aboriginal organizations and women's groups. It is sad. However, there is still time for the government to pull back and do the right thing.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Mr. Speaker, there is a concept that has been developing over the last two decades, and that is the honour of the Crown as it applies, in particular, to the aboriginal communities of Canada. I have been listening to some of the interventions on this debate at various readings, but I have yet to hear this mentioned. It puts on the Crown, as my colleague for Burnaby—New Westminster said, a true obligation to consult, and not to consult without the conclusions the consultations would lead to. The honour of the Crown is almost a fiduciary obligation and responsibility vis-à-vis our aboriginal peoples. I was wondering if my colleague would comment on that.

I hope that some members from the government side will speak to this later today. I might ask this question again. This is a very important matter that, unfortunately, has been neglected, but it should not be, because there is an obligation upon the Crown, and therefore the government, to act in a very particular manner vis-à-vis the aboriginal peoples of this country.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, first of all, the Conservative government has imposed closure, so there is not going to be this debate. The government's position seems to have weakened as the fact that it has not consulted aboriginal women's groups and organizations has become more apparent, and the government is shutting down debate.

I would quote Ellen Gabriel, the former president of the Quebec Native Women's Association. This is what she said:

It is reprehensible that the Government of Canada is so eager to pass legislation [that seriously impacts the collective human rights of indigenous peoples] without adequate consultations which require the free, prior and informed consent of Aboriginal peoples. While it is understood that legislation is not accompanied by commitments to adequate financial and human resources necessary to implement laws, these Bills will create further financial hardships on First Nations communities.

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, this bill is the fifth of its kind to be introduced by the government since 2008. The background on this issue has been given and we have debated it. Every time it has had the opportunity, the NDP has opposed the bill, and that is the case again here.

I am a feminist and I fight for women's rights. I fought as part of the Quebec section of the NDP women's council for years, before I was elected, and I have had the honour of chairing the NDP women's caucus. I take these issues to heart.

Division of matrimonial property is an important issue. Courts have rendered decisions on this issue since the mid-1980s, and parliamentary committees have been studying it since the early 2000s.

Right now, when a couple divorces, the division of family property, such as the house and the couple's personal property, is determined by provincial legislation. Subsection 92(13) of the Constitution Act, 1867, provides that property and civil rights are under provincial jurisdiction. However, under subsection 91(24) of the Constitution, the Parliament of Canada has exclusive legislative jurisdiction over Indians and lands reserved for Indians. Therefore, provincial laws are not applicable to the division of property on the reserves.

In 1986, in the Derrickson case, the Supreme Court of Canada created a legal vacuum when it ruled that the courts could not rely on provincial law when determining the division of matrimonial real property on reserves. The absence of provisions at both the federal and provincial levels with regard to the division of matrimonial real property on reserves is a problem, because the people who live on reserves cannot appeal to the Canadian legal system to resolve issues relating to the division of property when a marriage has broken down. It is usually aboriginal women who pay for this legal vacuum.

The Assembly of First Nations determined that the following three broad principles were key to addressing matrimonial rights and interests on reserves: first, recognition of first nation jurisdiction; second, access to justice; and third, addressing underlying issues related to housing and economic security.

The bill does nothing to address any of these principles. On reserves, gender discrimination clearly exists when it comes to matrimonial real property. Everyone says so, including the courts, aboriginal people and politicians.

Bill S-2 does not solve the problem. It does not address the issues related to a lack of financial resources to support first nations governments to actually implement the law, a lack of funding for lawyers and legal advice, a lack of funding to account for limited geographic access to provincial courts, a lack of on-reserve housing, and a lack of land mass that would be necessary to give both spouses separate homes on reserves.

Here is what Assembly of First Nations National Chief Shawn Atleo had to say:

The legislation...does not provide the necessary tools or capacities for first nation governments to deal with the issues that arise when marriages break up. This is rightfully a matter of first nation jurisdiction and we must have this capacity.

First nations have repeatedly and forcefully called on the government to work with us on an approach that will truly give our people in our communities access to justice. There are already first nations that have put their own laws and approaches in place on this matter. These must be respected and a similar approach must be supported for all first nations.

The Native Women's Association of Canada also has a problem with this bill.

Despite previous recommendations that first nations must be involved and create the solutions that will address the multitude of socio-economic issues impacting on families, the government has consistently tried to rush the process and to push through legislation that has been drafted mostly on its own, with little involvement and disregard for the comprehensive recommendations of the past ministerial representative, and many first nations governments and organizations.

As I indicated earlier, a lot of work has already been done on this issue. For example, there was the 2005 report of the Standing Committee on Aboriginal Affairs and Northern Development entitled “Walking Arm-in-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property”.

The report set out a number of very worthwhile suggestions. It recommended that the government consult with the Native Women's Association of Canada and the Assembly of First Nations in order to develop a new law or amend the Indian Act. It also recommended that the first nations be given financial assistance so that they can develop their own matrimonial real property codes, and that any new legislation should not apply to first nations that have their own codes. What is more, the Canadian Human Rights Act should be amended to apply to people living on reserves. The report also suggested that Canada recognize the inherent rights of first nations to govern themselves.

Canada is a signatory to the UN Declaration on the Rights of Indigenous Peoples and, as such, consultation entails the consent of the people consulted. Although Canada conducted some limited consultations, no consent was given by the rights holders. As a result, we are opposed to Bill S-2 because it violates article 32 of the UN declaration, which requires the free and informed consent of the rights holders prior to the approval of any project affecting their lands or well-being.

Those are the reasons why I cannot support this bill. However, I would like to add that the government must treat our first nations with more respect. In addition to a better bill on matrimonial real property, it is urgent that the government work with first nations in order to put an end to violence against aboriginal women. It must improve living conditions on reserves, particularly with regard to the housing crisis, and it must put an end to systematic discrimination with regard to funding for first nations children.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I thank my colleague for all of the hard work she has been doing on women's issues for several years now.

She pointed out some problems inherent in this bill. Could she elaborate on those? We heard from first nations women, particularly in our women's caucus.

What is the member's perception of violence against women in aboriginal communities? What concrete measures could be taken, particularly with respect to the housing crisis and the fight against poverty?

I would like to hear the member speak to these major issues.

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, I thank my passionate and hard-working colleague for her question and I thank her for giving me the opportunity to talk about the testimony we heard in our women's caucus.

Aboriginal women are very disappointed that the government has not taken action to combat the violence they are experiencing. They told us that nothing has been done. Study after study gathers dust on the shelf. No action plan has been created. These women took the initiative to get organized and put pressure on the authorities to open inquiries, particularly in the case of abused, missing and murdered women.

These women do not even have the right to a roof over their heads. They have no financial assistance. WIthout a home or financial means, how do we expect them to be able to access the courts? That is the problem with this bill, which was unfortunately introduced in the Senate and not by the government. The government is trying to pass this bill today, but in my opinion, this bill is nothing but smoke and mirrors.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

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

The government boasts about having held consultations. Indeed, perhaps it did. However, after consulting communities, the government has to respond to their demands. In this case, most of the groups were very critical of this bill.

Does my colleague think that sound consultation involves taking into account what was said during the consultations and then incorporating all this information in a bill? Is that what the government did?

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, I thank our hard-working member, the youngest in the House, for his insightful question.

As I mentioned earlier, the government claimed that it consulted everyone, yet these consultations were quite limited. I quoted Mr. Atleo, the national chief of the Assembly of First Nations, and his words spoke volumes. Moreover, according to the Native Women's Association, this bill does not provide any tangible solutions to address the problems they face every day.

It is obvious that this government is once again trying to pass bills in a hurry just to get them done and pretend that it has already done all the required work.

Since the 2000s, no tangible solutions have been found to address the problem at the community level.

[The Deputy Speaker]

Resuming debate, the hon. Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development. The parliamentary secretary will have approximately five minutes.

[Greg Rickford, Conservative, Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development]

Mr. Speaker, I am thankful for the opportunity to speak to this particular piece of legislation. There have been discussions and contributions by a number of stakeholders. From my own experience and context, I think back to the more than eight years that I spent living and working in isolated first nations communities across Canada, in Ontario, Manitoba, Saskatchewan, British Columbia and parts of the Arctic Circle.

I mention this experience because earlier in the debate we heard some concerns put forward. I do not know if they are on the record or not, but I heard the words “jurisdictional matters”, and if I might say so with some humility, I have a sense not just for the issues as legal counsel for first nations communities over a number of years but for any of the jurisdictions where this might be a problem.

Earlier I had a line of questions for members across the way and in my own caucus, tough but fair questions around the emergency protection orders and priority occupation measures that this piece of legislation contemplates. In my respectful view, these are two key components of this legislation.

In the special standing committee on murdered and missing aboriginal women we heard from a witness who was unequivocal and categorical in her understanding of this legislation, particularly with respect to emergency protection orders and priority occupation. We heard that these two pieces would have, in fact, spared her from a tremendously difficult process that arose as a result of a domestic violence situation perpetrated on her by her partner at the time.

In the progression of this debate, we have heard members, particularly in the official opposition, identify a number of groups that they say are in principle against the legislation overall. With the greatest of respect, I do not think that considers some of the good people who commented on this legislation and may have made a general statement about it, because what they were really concerned about—and I think we are all in agreement on this point—is that whenever and wherever possible, the real effort should be to encourage first nations communities to develop their own matrimonial real property regime.

This bill would achieve that end. It says to first nations under a variety of different agreements, such as the First Nations Land Management Act and self-government agreements, to go out and make this. In fact, first nations do not even have to belong to one of those two categories to design or develop their own framework for matrimonial real property.

It is important, because we know that whether it is first nations communities or non-first nations communities, relationships do break down. In that final and most unfortunate category of relationship breakdown, or along the way, violence can arise. That is why my emphasis is on emergency protection and priority occupation: it is because this is where the real vacuum in the law exists. It is that fundamental ability of a police officer and a magistrate at that difficult time to give a woman and, most importantly, her children an opportunity to stay in the home.

I, unfortunately, have had a ringside seat in this special category that I am referring to. I have seen a woman and her family taken out of the home. It is not a very nice thing to see. I cannot imagine experiencing it. I can only relay to my friends across the way and to members of this government and caucus the importance of these two elements alone as grounds to consider matrimonial real property and how it would work on reserve until or unless first nations communities were in a position to develop their own regime that would respect these two important principles.

[The Deputy Speaker]

It being 11:12 a.m., pursuant to order made Tuesday, June 4, 2013, it is my duty to interrupt the proceedings and put forthwith every question necessary to dispose of the third reading stage of the bill now before the House.

The question is on the amendment. Is it the pleasure of the House to adopt the amendment?

[Some hon. members]

Agreed.

No.

[The Deputy Speaker]

All those in favour of the amendment will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker]

All those opposed will please say nay.