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.

Aboriginal Affairs

[Kerry-Lynne Findlay, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, this government is showing leadership in taking concrete action on this tragic issue. Unlike the opposition, who are against bills like Bill S-2 to protect aboriginal women from violence, as part of our $25 million investment over five years into our missing and murdered aboriginal women's strategy, we have taken a number of measures: implemented recommendations from the January 2012 report; established a national centre for missing persons; enhanced law enforcement; supported pilot projects to reduce vulnerability; supported victim services that are culturally appropriate; and developed a comprehensive list of best practices.

We are working—

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Fin Donnelly, NDP, New Westminster—Coquitlam, BC]

Mr. Speaker, in fact I did reference four previous studies over a period of time that identified a number of recommendations and that has been quite a problem. Those recommendations, as I pointed out in my speech, have actually not been implemented. They have not been listened to and the first nations women who were part of previous testimony have commented about how they are not feeling listened to and that their recommendations are not being heard.

I referenced those four reports. What was concluded was that if the government had actually listened to the consultations it would not implement Bill S-2, this incarnation of the legislation, because of a lack of financial resources to support first nation governments, a lack of funding for lawyers, a lack of funding to account for limited geographic access to provincial courts and a lack of on-reserve housing and land mass, which would be necessary to give spouses separate homes on reserve.

[Fin Donnelly, NDP, New Westminster—Coquitlam, BC]

Mr. Speaker, I sincerely appreciated the speech from the member for Manicouagan and his direct experience with the first nations' life and living conditions. It adds a lot to this debate.

I also want to take time to acknowledge our critic for Indian and northern affairs, the member for Nanaimo—Cowichan, who has done excellent work in the past and also adds a lot to this debate and this discussion.

Today we are talking here about Bill S-2, an act concerning matrimonial real property on first nations reserve lands. It makes changes to the Indian Act to allow for provincial family law to apply on reserves in the event of a matrimonial breakdown or the death of a spouse or common-law partner.

There is a legal vacuum concerning real property on reserves due to the jurisdictional divide, wherein provinces and territories have jurisdiction over property and civil rights within the provinces, and the federal government has jurisdiction to legislate “Indians, and Lands reserved for the Indians” under section 91.24.

The Indian Act does not provide for a division of MRP upon marriage breakdown, and first nations jurisdiction is not explicitly recognized by Canada. This has led to major legal cases, such as Derrickson v. Derrickson, 1986, and Paul v. Paul, also 1986, which were dismissed by provincial courts because the provincial laws cannot apply to lands on an Indian reserve. Thus, there is this legislative gap.

Bill S-2 is the fourth iteration of similar legislation that the Conservatives have tried to pass since 2008, and the NDP has opposed every time it has come forward for debate.

There have been five parliamentary studies that have been conducted on MRP: A Hard Bed to Lie In by the Senate in 2003; Still Waiting by the Senate in 2004; Arm-in-Arm by the aboriginal affairs and northern development committee in 2005; the report by the status of women committee in 2006; and a ministerial report by Wendy Grant-John in 2006.

I just want to mention the latter, which stated that no consensus has been found regarding legislation that could apply to MRP. Among other things, it recommended that concurrent jurisdictional models be used where first nation law was paramount and that the government needed to identify the real costs of implementing provincial legislation on reserves.

All previous bills, and now Bill S-2, neglect almost all of the recommendations made by all of the aforementioned reports.

The Conservatives are trying to say that the recommendations from the 2006 ministerial report by Wendy Grant-John are being implemented, but that is absolutely not the case.

There is no question that this issue needs to be addressed. However, the Conservatives are trying to pass a law that appears to be in favour of first nations women's rights while ignoring the voices of first nations women themselves. They are fast-tracking legislation without addressing all the relevant non-legislative problems that first nations women and families have identified.

The Conservatives are not interested in a fulsome discussion of the bill or any first nations issues. They want to hastily enact a bad law just so they can say they have done something.

The problem requires a comprehensive response led by first nations. This approach must address family support services; more on-reserve housing and shelters; police support services; building first nations capacity to resolve disputes; solutions to land management issues; and resolutions of matters relating to citizenship, residency and Indian status.

Bill S-2 is an insincere and overly simplistic attempt to rectify a complex problem that was brought about by the Indian Act.

The Assembly of First Nations facilitated a dialogue, which identified three broad principles that are key to addressing matrimonial rights and interests on reserve. I will identify those: recognition of first nation jurisdiction; access to justice, dispute resolution and remedies; and finally, addressing underlying issues such as access to housing and economic security.

Based on these principles, I would like to take a closer look at two important themes that underpin the position of the New Democrats on Bill S-2: the absence of meaningful consultation with first nations; and the need to address the non-legislative problems surrounding the issue of matrimonial property rights.

I will turn to what others had to say on this in elaborating on meaningful consultation and non-legislative problems.

Ellen Gabriel, the former president of the Quebec Native Women's Association and AFN grand chief candidate, 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 requires the free, prior and informed consent of Aboriginal peoples.

This is a growing trend of the Conservatives thrusting legislation upon Canadians without first consulting.

For example, the fisheries and oceans committee studied several clauses of Bill C-45, including a clause relating to the definition of what constituted an aboriginal fishery. There was an absence of consultation with first nations. It was only a one-way dialogue.

I will offer another quote from Stuart Wuttke from the Assembly of First Nations. He said at the fisheries and oceans committee:

—we feel if there's consultation and accommodation with respect to first nation interests, there may be a balanced approach. We would definitely prefer that, and we would recommend that consultation and accommodation take place in order to alleviate any potential problems that may exist in the future.

Consultation allows a legislative to find a balanced approach that serves the best interests of all stakeholders and to alleviate any potential problems that may exist in the future. For example, if the government had properly consulted on Bill C-38, it probably would not have found itself making so many amendments now in bill C-45.

According to the UN Declaration on the Rights of Indigenous Peoples, to which Canada is a signatory, consultation requires consent. While Canada has conducted limited consultation, no consent was given by rights holders. Therefore, if we endorse Bill S-2, we will be in violation of article 32 of the UNDRIP, which ensures free, prior and informed consent of any matter relating to the lands or welfare of the rights holders.

I will further add what other first nation women are saying. The Native Women's Association of Canada says:

NWAC is being told by its members that the MRP legislation is too prescriptive and does not adequately support Indigenous legal systems. As well, no financial resources will be allotted to support First Nations Governments to actually implement the legislation, if it were to get passed.

The NWAC testified at the Senate hearings on Bill S-2 and said the following:

—our women and population and constituents have repeatedly told us 12 months is not a sufficient transition period if this bill were to go ahead. First Nations are dealing with governments that are already overloaded with many socio-economic issues.

We are looking at a longer-term plan: two years, five years and ten years. Those are the types of plans that need to be developed in cooperation with First Nations, not government designing it and having patchwork input from First Nations. You will have a holey quilt, if you will. Too many resources will also be spent, and it will not be a satisfactory result for anyone.

We would rather take the time, do it right and stop pushing ahead in a rush to have a quick resolution that might not be a good one for anyone.

The image of a holey quilt is a good one and identifies the need for co-operation with first nations that the government should have.

About Bill S-4, which was a previous incarnation of Bill S-2, Pam Palmater, a professor of aboriginal law at Ryerson, said:

The Minister also said that Aboriginal women are in need of “immediate protection”. If the Minister actually listened to the voices of Aboriginal women, he would have heard that Aboriginal women do not want Bill S-4 as it is currently drafted. He would also have heard that what they do want is gender equality addressed in all of Canada's legislative initiatives....

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

Mr. Speaker, in addition to the Senate amendments to Bill S-4 , changes were also made to the bill before it was introduced as Bill S-2. These changes encourage and assist first nations in developing their own laws. The verification process, including the role of the verification officer, has been removed. First nations are still required to ensure voters are informed of the first nations proposed law and when and where the vote will take place. The ratification threshold for first nations matrimonial real property laws has been lowered to a single majority with a set participation rate of at least 25% of all eligible voters. The lower threshold will help first nations approve their own laws and a 12 month transition period before the federal provisional rules come into force.

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

Mr. Speaker, in my view, they are trying to deflect attention from the critical need for this legislation to address the issue of matrimonial real property on reserves. Interested groups have unanimously agreed that this legislative gap needs to be resolved on an urgent basis. It should not be stalled because of the fact that someone should have a broader discussion on the concept of inherent rights.

As I mentioned earlier, Bill S-2 offers a recourse to a spouse or common-law partner and his or her children who have been kicked out of the family home. The individual should not continue to be denied basic rights that people living off reserve take for granted. This is why we need to pass this legislation without further delay.

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

Mr. Speaker, the legislation would ensure that individuals living on reserves have similar matrimonial real property rights and protections as those available anywhere in Canada. That is the same benefits that we have here in the House and outside of the House. We have benefits and rights but women on reserve do not have rights.

Some of the benefits that Bill S-2 would provide are: safety for children and their caregivers in instances of family violence; stability for women and their children through continued access to the family home; continued connection to the community and extended family; access to services, children's programs and education facilities in the community; the equitable distribution of matrimonial real property assets; and that is just to name a few.

The legislative gap that Bill S-2 would fill has hurt families and entire communities. Moving forward with Bill S-2 to provide individuals living on reserve--

[Roxanne James, Conservative, Scarborough Centre, ON]

Mr. Speaker, I thank the hon. member for London North Centre, the Parliamentary Secretary for Status of Women, for her remarks and for moving this important legislation.

I, too, support Bill S-2, not simply because I am on the Standing Committee for the Status of Women and not because I am a woman, but because it is simply the right thing to do.

There are a number of reasons why I support it, two of which are as follows. First, the proposed legislation would eliminate the inequity that is currently on reserves that causes so much hardship to the women who are currently within our first nations communities.

Second, it would support first nations that wish to develop and implement community-specific matrimonial real property laws on their own reserve lands.

Those are just some of the reasons why I personally support it. I am wondering what the Parliamentary Secretary for Status of Women feels would be the important benefits of Bill S-2 to first nations women.

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

Mr. Speaker, the Standing Senate Committee on Human Rights conducted a review of Bill S-2. Many witnesses testified, including the Minister of Aboriginal Affairs and Northern Development.

An excerpt of his testimony in November 2011 reads:

The time has come to solve this issue once and for all. We all agree the status quo is not acceptable. It has not been acceptable for 25 years, yet here we are. Without legislation, the legislative gap continues to impact individuals negatively. Most of these individuals are women and children—already among the most vulnerable of all Canadians—and no court can help them.

This statement neatly summarizes why I believe we must lend our support to Bill S-2. We already have more than 25 years' worth of research, analysis, consultation and engagement. I cannot imagine how more consultation would deepen our understanding of the essential issues or influence the positions taken by various stakeholders.

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

Mr. Speaker, I am proud to rise in support of Bill S-2, the family homes on reserves and matrimonial interests or rights act. This legislation proposes to fill a legislative void that has harmed women, men, children and families living on reserves for far too long. Bill S-2 would provide individuals living on reserves the similar matrimonial real property rights and protections as other Canadians living off reserve. Recognizing the diversity of first nations, it would empower communities to develop their own culturally-specific matrimonial real property laws.

The proposed legislation is informed by many years of study, consultation and debate. It builds on previous attempts to enact similar legislation and was substantially altered before its introduction in Parliament to further strengthen the bill and facilitate the development of first nation laws in this area. Bill S-2 would provide an opportunity to finally put in place a legislative solution to a very real problem. Each delay in its passage results in the continued denial of protections and rights for individuals living on reserves.

I now move:

That this question be now put.

The House resumed from November 1 consideration of the motion that Bill S-2, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves, be read the second time and referred to a committee.

Business of the House

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

Mr. Speaker, it is true that we have experienced some disruptions yesterday and today as a result of efforts by the Liberal Party to disrupt our agenda. I was puzzled as to why it was happening right now at this time. However, a news story just broke, which gave me some insight into it, where the young member for Papineau said that:

Canada isn't doing well right now because it's Albertans who control our community and socio-democratic agenda. It doesn't work....

When he was asked if Canada would be better served if Quebeckers were in charge rather than Albertans, he said:

I'm a Liberal, so of course I think so.... Certainly when we look at the great prime ministers of the 20th century, those that really stood the test of time, they were MPs from Quebec... This country--Canada--it belongs to us.

Obviously, the Liberals do not want to see the Conservatives governing, advancing our agenda or advancing our budgetary agenda. Therefore, I think that answers the NDP House leader's question as to why we are facing these delays right now in the House. However, we will carry on, Albertans and all, and the rest of the country, with Conservatives from coast to coast in this government trying to advance the agenda that Canadians believe in.

We will resume the second reading debate on Bill S-2, the family homes on reserves and matrimonial interests or rights act, this afternoon. Tomorrow we will conclude report stage of Bill C-27, the first nations financial transparency act, and third reading will take place on Tuesday. We will start second reading debate of Bill C-47, the northern jobs and growth act, on Monday and the debate will continue on Wednesday.

The finance committee is working very hard to go through Bill C-45, the jobs and growth act. I commend them for their efforts. Our budget implementation legislation contains important measures, such as extending the hiring credit for small businesses, expanding tax relief for investment and clean energy, helping Canadians save for retirement with pooled registered pension plans and improving the registered disability savings plan.

However, I do confess that it does not include the NDP's carbon tax or its proposal for a 1% GST increase. Perhaps that is why its members are opposing it. In any event, we hope to start report stage consideration of Bill C-45 on Thursday, if at some point the Liberals give up on their disruptive delay objective and agree to allow someone other than the member for Papineau to have some say in running the country.

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

Mr. Speaker, this afternoon, before we depart to our constituencies and events for Remembrance Day where most of us will be participating in remembrance services in our ridings, we will resume third reading debate on Bill C-28, the financial literacy leader act.

The week of November 19 will continue to see a lot of important action at the House committee level, where we are looking at the budget implementation act, Bill C-45, the jobs and growth act, as it advances through the legislative process. The finance committee is supported by 10 other committees looking at it and all together they will conclude the review of this very important bill and the very important job creation and economic measures that are laid out, measures that were first put before Parliament back in our March budget.

Meanwhile, on Monday the House will continue the third reading debate of Bill C-44, the helping families in need act, which we started this morning. Given support for the bill from all corners of the House, I hope it will pass that day so the Senate can pass it before the end of the year.

After Bill C-44, it is our intention to take up the report stage and third reading of Bill S-11, the safe food for Canadians act, which was reported back from the agriculture committee yesterday. I hope we will see strong interest in passing that bill quickly, just as we did for second reading.

Once that bill passes on Monday, the House will return to third reading of Bill C-28, the Financial Literacy Leader Act, if we do not finish the debate today.

That will be followed by second reading of Bill S-8, the Safe Drinking Water for First Nations Act. On Tuesday, Wednesday and Friday, the chamber will consider report stage and third reading of Bill C-27, the First Nations Financial Transparency Act, which was also reported back from committee yesterday.

I should also advise the House that on Tuesday when we return from the Remembrance Day week, immediately after question period I will call ways and means Motion No. 14 respecting some technical amendments to tax laws. Let me assure the House that there should be no doubt about this, but the opposition will no doubt be disappointed. This motion will definitely not implement the New Democrats' $21.5 billion job-killing carbon tax.

Finally, on Thursday before question period, the House will resume second reading debate of Bill S-8 and after question period we will take up Bill S-2, the family homes on reserves and matrimonial interests or rights act, also at second reading.

Safe Drinking Water for First Nations Act

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Mr. Speaker, I am pleased to rise today on Bill S-8 concerning the safety of drinking water on first nation lands.

Essentially, the bill provides for the development of federal regulations governing the supply of drinking water, water quality standards and the elimination of wastewater in first nations communities.

It also stipulates that these regulations may incorporate, by reference, provincial regulations concerning drinking water and wastewater in first nations communities. Access to drinking water is crucial to the health and safety of all Canadians, including the 500,000 people spread out among approximately 560 first nations.

Access to drinking water is also closely tied to the economic viability of various communities. For the past 10 years or more, studies have shown that many first nations communities do not have adequate access to safe drinking water. On September 30, 2012, 116 first nations communities across Canada were subject to an advisory regarding the quality of their drinking water.

In April 2011, the Minister of Aboriginal Affairs and Northern Development estimated that 1,880 aboriginal households did not have running water and that 1,777 households did not have sewage services. In total, 807 water systems serve 560 first nations. It is estimated that a quarter of the water systems in first nations communities present a potential risk for the health and safety of the consumers.

I would like to speak briefly about the sharing of responsibilities in the area of water management. On first nations reserves south of the 60th parallel, the responsibility to guarantee the safety of drinking water is shared among first nations communities and the federal government. The chief and council are responsible for the planning and development of facilities that meet the needs of the community, especially in the supply of drinking water.

Aboriginal Affairs and Northern Development Canada provides funding for the supply of water and its associated infrastructure, in particular for the construction, modernization, operation and maintenance of water treatment facilities on reserve. The department also provides financial support for training purposes and for the issuance of facility operator certificates.

In this debate, it is important to stress that the crux of the problem has to do with under-investment by the federal government. According to a 2011 independent evaluation on water and sewage systems in first nations communities, $1.08 billion would be required to bring existing water and sewage systems in compliance with federal guidelines and protocols, and provincial standards and regulations.

It will also be necessary to put about $79.8 million into work that is not related to construction, such as training operators and preparing plans for protecting water sources and emergency response plans. In total, it will cost $4.7 billion over 10 years to guarantee that the first nations communities’ water and wastewater system needs are met. That one-time investment of $4.7 billion is in addition to the regular operating and maintenance budget, estimated at $420 million a year.

When we consider the extent of the need, it is easy to understand that the Conservative government’s recent investments amount to only a drop in the ocean. We also have to understand that access to drinking water involves investing in infrastructure, but also funding the science and the regulation.

Drinking water has to be stringently managed and regularly analyzed to ensure that it is safe and to protect public health. The provinces have put legislation and regulations in place to secure their drinking water distribution systems, but those do not apply on reserves.

Health Canada is responsible for ensuring that drinking water quality monitoring programs are in place and has to collaborate with the provinces and territories to make recommendations about drinking water quality in Canada.

Environment Canada is responsible for developing standards, guidelines and protocols for wastewater systems located on federal or aboriginal land, as defined in the Canadian Environmental Protection Act.

These same departments, which are responsible for conducting water management studies based on rigorous scientific standards, are engaging in mass layoffs of dozens of scientists because of the Conservative government’s budget cuts.

It must be noted that over 1,500 federal government professionals and scientists represented by the Professional Institute of the Public Service of Canada were informed this week that their positions will be affected by the government’s irresponsible budget cuts.

Two thousand professionals represented by the Professional Institute of the Public Service of Canada, including 100 at health Canada, received a work force adjustment notice when the 2012 federal budget was tabled.

As well, in the Public Service Alliance, it is estimated that 1,200 unionized positions will be affected by the cuts at Health Canada and Aboriginal Affairs and Northern Development Canada. In short, the Conservative government’s budget cuts could reduce oversight.

In 2005, however, the Auditor General of Canada said that in most first nations communities, drinking water was analyzed less often than required under the recommendations for drinking water quality in Canada.

Why does the Conservative government want to set us back 10 years by making cuts to science and oversight?

In March 2012, I had the opportunity to participate in the showing of Wapikoni mobile in Boisbriand. This is an excellent travelling audiovisual creation project that criss-crosses aboriginal communities in Quebec to give young people an opportunity to tell their stories on film and in music. It is an excellent project, and one that has unfortunately been cut by the Conservative government.

In short, the NDP recognizes that the water supply systems are jeopardizing the health and welfare of the first nations.

But we also find it unacceptable that Bill S-2 proposes only to transfer responsibility for water supply systems to the first nations without giving them the resources they need in order to acquire adequate systems that meet their needs.

Like most first nations organizations that have spoken to this, and I am thinking in particular of the Assembly of First Nations, the Chiefs of Ontario, the Nishnawbe Aski nation, the Assembly of Manitoba Chiefs and the nations that have signed Treaty 7 in Alberta—

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I rise to speak to Bill S-8, An Act respecting the safety of drinking water on First Nation lands. I am going to start differently than I planned because I want to respond to something that both the minister and the parliamentary secretary addressed in their speeches or their questions.

I want to start with a quote from the UN Declaration on the Rights of Indigenous People. Article 18 says:

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decisionmaking institutions.

Article 19 says:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

It was interesting to hear people describe the consultation process as engagement. It is an interesting twist of words, because when we talk about full, prior and informed consent, I am sure that many nations would argue that engagement does not equal full, prior and informed consent. I want to turn for a moment to some comments about the engagement or so-called consultation process.

The Safe Drinking Water Foundation, in a position statement it issued on April 14, 2009, talked about this engagement process. It said that few first nations voices were heard at the engagement sessions, but enough were present that INAC was able to claim that they were engaged. It said that many first nations in Manitoba, Saskatchewan and Alberta did not receive their engagement session invitation packages in sufficient time for people to attend the sessions. For example, George Gordon First Nation received its package on January 25 at noon when the engagement session was taking place the following day in Saskatoon, three hours away. Of course, we know what winter road conditions can be like in Canada at that time of year, so it adds an additional stress.

In addition, the Safe Drinking Water Foundation said that civil servants dominated conversations in each discussion group, offered incomplete and inaccurate information and failed to relay first nations' concerns to the larger audience. The INAC official report omitted all of that.

Consultation is all in the eye of the beholder. There are some guidelines that first nations have proposed in terms of what meaningful consultation would look like. I have been hearing from people who do not feel this process fulfilled that responsibility to consult.

I want to turn to the legislative summary of the safe drinking water first nations act that was put out by the Parliamentary Library so that people understand what it is we are talking about today. In the legislative summary it says:

The bill provides for the development of federal regulations governing the provision of drinking water, water quality standards and the disposal of waste water in First Nations communities...the bill also establishes that federal regulations developed in this regard may incorporate, by reference, provincial regulations governing drinking water and waste water in First Nations communities.

It goes on to say:

The delivery of safe drinking water to on-reserve First Nations communities is critical to the health and safety of the communities’ residents. Access to safe, clean, potable water is also closely tied to the economic viability of individual communities. For more than a decade, research has indicated that many First Nations communities lack adequate access to safe drinking water. A 2001–2002 assessment found that the quality of almost three quarters of drinking water systems in First Nations’ communities were at significant risk.

I know some of those numbers have changed since then and I will talk about the waste water and drinking water assessments that the government commissioned.

Later on in the legislative summary it indicated some key challenges. It says:

In addition to the absence of a regulatory framework and the lack of clarity regarding roles and responsibilities...core issues relating to the provision of safe drinking water on reserves include the high costs of equipment for, and construction and maintenance of, facilities in remote locations; infrastructure that is either obsolete, entirely absent or of low quality; limited local capacity and ability to retain qualified or certified operators; and the lack of resources to properly fund water and waste water system operation and maintenance.

All of us in the House would agree that there are significant challenges on first nation reserves about access to safe quality drinking water and to the functioning of the waste water treatment systems.

In my own riding of Nanaimo—Cowichan there is the St'át'imc reserve which butts up against the municipality of Nanaimo. We literally have a reserve that is in an urban area and there has just recently been an agreement to allow the extension of the water system, but the reserve has been there for decades.

The ability of the residents to engage in economic development on their recognized traditional lands has been hampered by the fact that they do not have access to clean water. In fact, on one of the reserves they are trekking in water. This is a reserve right beside the city of Nanaimo. We are not talking about some remote reserve hundreds of miles away that is accessible by air only, or ice road, or sealift.

Therefore, this is not just a rural and remote community problem. There are reserves close to urban areas that do not have the infrastructure to not only supply safe drinking water, but to enable them to engage in the economy in a more meaningful way.

Back in 2005, the report of the Commissioner of the Environment and Sustainable Development also highlighted the problem of drinking water for first nation communities. I want to touch on a couple of points here.

The report noted that when it came to the safety of drinking water:

—residents of First Nations communities do not benefit from a level of protection comparable to that of people who live off reserves.

It goes on to say that:

Despite the hundreds of millions in federal funds invested, a significant proportion of drinking water systems in first nation communities continue to deliver drinking water whose quality or safety is at risk. Although access to drinking water has improved, the design, construction, operation, and maintenance of many water systems is still deficient. Moreover, to a significant extent, the success of the First Nations Water Management Strategy depends on INAC and Health Canada addressing the management weaknesses we have noted.

The report talks about a number of management weaknesses between the departments. It goes on to say:

The technical help available to First Nations to support and develop their capacity to deliver safe drinking water is fragmented. Given that most First Nations communities have fewer than 500 residents, and that providing drinking water has become more complex, the development of institutions that can provide ongoing technical support is critical to a continuing supply of safe drinking water for these communities.

In part, many first nation communities have relied on tribal councils to help them with technical advice and organizational administration. In the last round of budget cuts, we saw tribal councils had their funding cut. That is going to significantly impact on some of these smaller communities' ability to deal with some of these very complex issues.

The report, “Drinking Water on First Nations Communities” also highlighted some challenges . It is important to state this because it is a very complex problem. It says about location:

Many First Nations are located on the Canadian Shield, or other difficult terrain, making it technically difficult and costly to provide water services. Some reserves are isolated and can be accessed by roads only in winter; some have limited access to electricity or other forms of energy. Water sources are often located off reserves, and it is difficult for First Nations to protect them.

Interestingly, on the difficulty of protecting water, we have just seen a number of waterways no longer included in the Navigable Waters Protection Act. Many of those waterways on first nation reserves are no longer protected. Did the department do an analysis of what this change in the Navigable Waters Protection Act would have in the context of this legislation? I understand from a briefing from government officials that it has not been done.

It is a very important question. If first nations cannot protect their waters by whatever means available to them, one questions how they would improve the quality of the drinking water.

Other challenges include accountability. The report says:

Federal departments set requirements that make First Nations responsible for providing day-to-day drinking water. It is not clear who is ultimately accountable for the safety of drinking water.

Costs and financing...It is difficult to find and retain operators.

Technical standards. It is not clear which standards are applicable. Provincial guidelines and regulations on drinking water are to be applied except when less stringent than federal standards.

The population growth on reserves has been noted in report after report. This report says that:

On-reserve population is estimated to increase by 230,000 people between 2004 and 2021. It is difficult to estimate population growth and economic development in each community to plan water systems that can meet drinking water needs for 10 to 20 years.

It is a very challenging environment that we are operating in.

In the Report of the Expert Panel on Safe Drinking Water for First Nations, there was a number of matters that it highlighted.

First, it states:

Pursuing “laws of general application” is too uncertain

If it could be established that provincial laws of general application applied to Indian reserves, legal frameworks would be instantly in place and a great deal of consultative and Parliamentary process avoided. However, in the view of legal counsel to the panel, applying provincial drinking water and wastewater law as a law of general application is “fraught with such uncertainty that it is neither a viable nor effective option.”

We know that provincial laws differ from province to province so there will be a very uneven level of water quality standards from province to province, depending on which province the first nation resides.

It report says that before there is any legislation that there are preconditions that must be in place before legislation moves forward. The first is, “Provide resources, discuss and deal with high risks”. It says:

The federal government must close the resource gap

First, and most critically, it is not credible to go forward with any regulatory regime without adequate capacity to satisfy the regulatory requirements. While it is tempting to assume that putting a regulatory regime in place would reduce the dangers associated with water systems, exactly the opposite might happen. This is because creating and enforcing a regulatory regime would take time, attention and money that might be better invested in systems, operators, management and governance.

But the problem is more fundamental than the resources that would be lost to creating a regulatory regime. The underlying issue is that the federal government has never provided adequate funding to meet the 1977 policy commitment of comparable facilities on reserve....If funding were supplemented to cover only the costs of a regulatory regime, the gap would continue.

We therefore see it as a precondition to moving forward on any of the viable options that the federal government must finally close the resource gap. It must provide, over a reasonable period, the funding needed to ensure that the quality of First Nations water and wastewater is at least as good as that in similar communities and that systems are properly run and maintained.

That is a precondition.

It also goes on to say that discussion with first nations is essential. It says:

The second precondition is the need for the federal government to assess whether it has a legal duty to consult with First Nations affected by any of the three options. This duty, according to the Supreme Court arises “when the Crown has knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it.”

As the minister pointed out, it indicates in the preamble that it will work with first nations, but nowhere is that working relationship defined. Because of the ongoing mistrust with the government, that relationship needs to be clearly spelled out about how first nations will be consulted, not just engaged, in the development of these regulations, as we saw from other consultative processes.

I spoke this morning to Bill S-2 about the so-called consultative process that was conducted with matrimonial real property. Wendy Grant-John tabled a very thorough report and many of the critical recommendations were disregarded when Bill S-2 was brought forward. Therefore, not only must the consultation process be outlined and resources attached to it, but there must be a commitment that when that consultation process is completed, the recommendations that come forward be actually incorporated into the regulations.

Finally, one of the other preconditions was, “Deal with high-risk communities immediately”. It says:

—any of the options would take time – probably several years – to reach the ultimate goal of safer drinking water for all First Nations. In the meantime, however, many reserve residents face serious risks from the drinking water available to them, sometimes from collective systems but...often from individual wells or other water sources.

It talks about the fact that we cannot just wait for the regulations to be developed or legislation to move forward. Rather we have to actually deal with the high-risk systems.

I want to touch briefly on the National Assessment of First Nations Water and Wastewater Systems. As I indicated earlier, in early 2000 a significant number of wastewater systems and water quality systems were at risk. That number has come down. I will give the government credit to the extent to which it has invested money over the years, so the numbers have reduced, but we know it has not been enough.

To provide a couple of really important numbers on this, nationally 571 of the 587 first nations, 97%, participated in the National Assessment of First Nations Water and Wastewater Systems study. That is important.

It says that “12 First Nations have no active infrastructure on reserve lands, in some cases [this was] as a result of recent or ongoing land claim settlements”.

Under the heading “Individual Systems”, the document states that “[a]n assessment was completed for approximately 5% of the individual well and septic systems”. Some of these numbers are still staggering. It goes on to say:

36% of the individual wells sampled did not meet the requirements of the GCDWQ for a health related parameter (i.e. arsenic, barium, bacteriological, etc.) and 75% did not meet the GCDWQ for an aesthetic parameter (i.e. hardness, sodium, iron, manganese, etc.). Approximately 47% of the septic systems assessed had operational concerns identified, which were usually attributed to limited maintenance (not pumping out septic tank regularly), leaching beds installed in inappropriate soils and age....

It then states, “A risk assessment has been completed for each water and wastewater system according to the INAC Risk Level Evaluation Guidelines”. Overall, of the 807 water systems inspected, 39% were categorized as high overall risk, 34% were categorized as medium overall risk and 27% were categorized as low overall risk. Therefore, 73% of the systems have some level of risk.

There have been some improvements. We know the number of boil-water advisories has decreased. However, there are still significant problems with the water systems.

That leads me to a comment that I made earlier around the need to invest in the capacity for these water systems for first nations. Later on in the report, it did indicate:

Small water systems are generally found to have a higher risk rating than larger water systems. In many cases, these small facilities were not designed to meet current protocols and do not have the same level of resources available for operation as larger systems. In addition, the overall risk of a system appears to increase with remoteness.

Of the high risk systems, 150 systems serving 16% of the on-reserve population are flagged as high risk as a result of a bacteriological exceedance.

Of the 532 waste water systems inspected, 14% were categorized as high overall risk and 51% were categorized as medium overall risk. Again, what we are seeing is that there continues to be significant risk attached to both the water quality and to the waste water systems.

The report also made an estimate about what was required to upgrade to meet the protocol. The report said, “The total estimated construction cost to meet protocol is $1.08 billion”. That is a lot of money. However, we are talking about people's health and safety. It says:

[These] requirements...are considered to be related to health and safety, providing minimum levels of treatment, providing firm capacity, standby power and best management practices.

Members can see that the scope and the magnitude of the problem are very serious.

Groundwater is an important source and in a paper that was put forward by Sarah Morales, a submission to Expert Panel on Safe Drinking Water, she pointed out that it is estimated that 750,000 people in British Columbia, and this is not just first nations, rely on groundwater as their drinking source. She said that protection of this drinking water source had become a major issue in British Columbia where the aquifers, underground sources of water, and so on, were at risk. She also said that the bacteriological contamination of private domestic wells was an issue across the province.

Members can see how important it is for whatever regulation or legislation we put in place to be effective in terms of dealing with water quality. It is also important that first nations have the resources they require to construct and maintain, and to train their operators, and that there is a meaningful consultation in the development of these regulations.

Based on what we have before us, unless there is some serious amendment to this piece of legislation, New Democrats will not be able to support it.

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Mr. Speaker, I listened with great pleasure to the speeches by my colleagues here in the House. I am pleased to speak today to Bill S-2 regarding family real property on reserves.

From a technical point of view, the bill provides that a first nations community is authorized to adopt legislation “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”.

The provisional federal rules set out in the bill would apply until a first nations group brings their own laws into force.

I acknowledge that the bill is well intentioned: it is meant to fill a legal vacuum in the field of matrimonial law and to grant equal property rights to both spouses in the event of their separation. However, we know what the Conservatives are like. They conducted consultations just to be seen to be doing something; they ignored many serious studies into the matter and they ended up introducing a defective bill that has been rejected by the main first nations spokespersons.

Earlier in the day in this debate, we heard a Conservative member put a price on the consultations. She told us how much the consultations had cost. However, the Conservatives retained hardly any of the recommendations that were made during the consultations, so they were obviously only a facade. It is an enormous mess as only the Conservatives can create.

Before going into greater detail about the reasons why we oppose the bill, I would like to tell the people who are listening to us about the problem we are facing.

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 both at 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 our aboriginal sisters who bear the costs of this legal vacuum. As Beverley Jacobs, the president of the Native Women's Association of Canada, said so clearly, “the lack of a matrimonial property law regime is a denial of women's equality.”

Bob Watts of the Assembly of First Nations spoke about the problem that this poses for women. He said:

While the lack of a legal regime to govern the disposition of matrimonial real property on reserve is a serious human rights issue that must be addressed, this legislative gap merely represents the tip of a much greater iceberg. The legislative gap in matrimonial real property rights on reserve lands is exacerbated by chronic housing shortages that exist on most reserves and difficulties in securing financing to purchase or construct alternative housing on reserve upon marital breakdown, in part due to the restrictions in the Indian Act against mortgaging reserve lands. These factors play an equal if not greater role in imposing hardship on first nation families, and in particular on women and children, who are often forced to relocate to off-reserve locations upon marital breakdown, particularly if domestic violence was a factor contributing to the breakdown in marriage.

Most stakeholders who expressed their opinions in the various forums agree that the status quo is no longer an option. Yet, Bill S-2 does not meet the needs of the first nations, who are speaking out against the lack of consultation, the lack of recognition of the first nations' inherent jurisdiction over matrimonial law, and the need to improve access to the justice system and to alternative dispute-resolution mechanisms.

In May 2009, the Native Women's Association of Canada and the Assembly of First Nations published a joint statement to make known their opposition to the bill. The statement pertained to Bill C-8, Bill S-2's predecessor. However, in the end, nothing has really changed. I would like to cite an excerpt from that statement:

NWAC and the AFN (including the AFN Women’s Council), all agree that [the bill] ...will do nothing to solve the problems associated with Matrimonial Real Property (MRP) on-reserve; that the federal government failed in its duty to consult and accommodate the views of first nations; and, as a result, the bill is fatally flawed and cannot be fixed. It should not proceed to committee.

I believe that their point of view is fairly clear. Even though this is the fourth version of this bill and many studies were conducted in this regard, aboriginal people and legal experts who are interested in this issue are concerned that the Conservative government is trying to ram this bill through.

Pam Palmater, who teaches aboriginal law at Ryerson University, has criticized the government's haste: [Aboriginal Affairs and Northern Development Canada] appears to be rushing this legislation through the process by introducing multiple bills in the House and the Senate at the same time. This does not allow sufficient time for most first nation communities to become informed or to determine how best to advocate on their own behalf. It is therefore critical that this committee see the issue in its broader context and why first nations are making their right to be consulted such a priority in their submissions before you.

I would also like to remind members that, according to the UN Declaration on the Rights of Indigenous Peoples, which Canada has agreed to honour, consultation implies the consent of the people consulted. This point is very important. Although Canada did undertake limited consultations, no consent was given by aboriginal representatives. I would like to emphasize this point. In our opinion, if Bill S-2 is passed without the consent of the principal parties, we will be violating article 32 of the UN Declaration on the Rights of Indigenous Peoples, which requires the free, prior and informed consent of the rights holders.

Aboriginal women in particular have spoken out against Bill S-2. They believe that it will only force families to resort to the provincial court. That is not a solution because it is too expensive for many families. Seeking remedies in provincial court, when accessible, can place another financial burden on members of first nations who divorce. The fact is that the bill could create additional obstacles for members of first nations who seek justice, and it will not provide effective recourse for people seeking compensation.

The Conservative members on the other side of the House may claim that they defend women's rights but, as we know, aboriginal women have already condemned this bill. I urge my Conservative colleagues to listen to those who are truly concerned and who will be affected by this bill.

The president of the Native Women's Association of Canada, Beverley Jacobs, is very worried. She believes that:

[The Conservatives' bill] will put women who are experiencing family violence at further risk by forcing them to wait long periods for justice without adequate social supports, services or shelters.

Need I remind the House that, according to Statistics Canada, 35% of aboriginal women have been victims of violence, and first nations women suffer three times as much violence as non-aboriginal women and are overrepresented among homicide victims? Those are very alarming statistics. I would note that the Native Women’s Association of Canada estimates that 510 aboriginal girls and women have disappeared or been murdered since 1980, and this is far too many.

I find the lack of political will on the part of the Liberals and Conservatives, when it comes to the housing problem facing the first nations, particularly egregious. We have to understand that the shortage of decent, affordable housing on reserves is closely tied to the division of property on divorce.

At present, because of a legal vacuum, women have no rights when their marriage breaks down. That means they have no choice but to leave their home. There is no vacant, healthy housing on the reserves. As a result, some women are forced to leave their reserve.

Like the first nations, we will again be opposing this bill. In fact, we will not support any legislation concerning matrimonial real property unless it is accompanied by non-legislative solutions to put an end to violence against aboriginal women, addresses the housing crisis on reserves and ends the systematic discrimination in funding for first nations children.

In closing, I would like to tell the House about recommendations made by the Native Women’s Association of Canada and the Assembly of First Nations. I hope my Conservative colleagues will listen to these recommendations.

A report entitled “Walking Arm-In-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property” was published in 2005.

It made five recommendations. It recommended that the NWAC and the AFN be consulted on developing new legislation or amending the Indian Act; that financial aid be provided to first nations to develop their own matrimonial real property codes; that any new legislation not apply to first nations that had developed their own code; that the Canadian Human Rights Act be amended to apply to individuals living on reserves; and that Canada recognize the first nations’ inherent right of self-government.

Clearly, the Conservatives did not listen to those recommendations and their consultations were a mere passing fancy. That is how the Conservatives do things: they introduce bills on which there has been no consultation whatsoever of the people affected by the measures in the bill.

I will be very happy to take questions from my hon. colleagues.