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.

[Chief Betty Ann Lavallée, National Chief, Congress of Aboriginal Peoples]

Thank you, Mr. Chair.

Good morning to the members of the House of Commons Standing Committee on Aboriginal Affairs and Northern Development.

It's an honour to be here on the unceded territory of the Algonquin people to present you with some priority issues of the Congress of Aboriginal Peoples.

With me today is our new vice-chief, Dwight Dorey, who will be speaking to you concerning the Daniels case and subsection 91(24) of the Constitution Act of 1867. My presentation to you will focus on remaining discrimination in the Indian Act, matrimonial real property, band membership, along with aboriginal citizenship, education, and the long-gun registry. There are many more issues that will need to be discussed at a later date, including health, economic development, housing, homelessness, language, and culture.

Since 1971, the congress has been at the forefront of the aboriginal people's movement in Canada, advocating for our constituency of forgotten peoples. We advocate for the rights and interests of status and non-status Indians living off reserve and Métis. The year 2011 marks the 40th anniversary of the founding of our organization. Despite the successes that have occurred over the last 40 years, the Canadian public continues to associate aboriginal issues with Indians living on reserves. The reality is that 80% of the ancestral aboriginal population now live off reserve, with 60% living in urban areas. This is the most significant demographic factor for policy makers, yet it's the one where the least action takes place because of jurisdictional issues.

On May 18, we were pleased to learn that Prime Minister Harper had changed the name of Indian Affairs and Northern Development to Aboriginal Affairs and Northern Development Canada. This was an important step, better to reflect the scope of the minister's responsibilities for all aboriginal peoples. This type of straightforward thinking and inclusive decision-making is what we need to make progress.

The Indian Act remains the principal expression of the federal government's jurisdictional policy over Indians and lands reserved for Indians under subsection 91(24) of the Constitution Act of 1867. The political and social reality affecting aboriginal peoples is based by and large on this outdated legislation. The Indian Act status and membership rules have a long history of impacting the lives of aboriginal peoples. For example, of the almost $10 billion per year that the federal government invests in aboriginal-specific programming, almost 90% goes to assist on-reserve status Indians. This outdated policy framework needs to be reshaped and recast to reflect the fact that the federal government has the responsibility to act in a fiduciary capacity for all aboriginal peoples.

This was the central finding of the largest, most extensive inquiry undertaken in Canadian history, the Royal Commission on Aboriginal Peoples. In 1996, it reported that the relationship between aboriginal peoples and non-aboriginal peoples needed to be fundamentally restructured. The facts of aboriginal life have changed, and it's time for policies and frameworks to reflect the new reality.

CAP is pleased that the government has reintroduced Bill S-2 concerning matrimonial real property. This legislation will address a longstanding gap and will better protect the rights of aboriginal people, particularly women living on reserve. For many years, we've been calling for an effective MRP regime on reserve. Aboriginal women on reserve face unfair and unconstitutional discrimination in the exercise of their right to a fair share of matrimonial real property after the breakup of a marriage or common-law relationship. We view the bill as a positive step to ensure that aboriginal women and children receive equitable distribution of matrimonial real property assets in the event of divorce, separation, family violence, or death.

The congress has never bought into the Indian Act, and we have a long history of fighting this legislation. Back in 1974, with financial assistance from our organization, Jeannette Corbiere Lavell was the first non-status woman to bring a challenge to the Indian Act. Today, our women continue to be discriminated against through the Indian Act, but through the brave work of people like Sharon McIvor, Sandra Lovelace Nicholas, as well as many others, we are taking this legislation apart piece by piece.

I'm a registered subsection 6(2) Indian. Under the law, my son is not entitled to be registered as an Indian. We are graded like cattle or grades of beef. It is unadulterated discrimination, and fighting this is the central priority for the congress.

In January of this year, Canada proclaimed into force Bill C-3, Gender Equity in Indian Registration Act. This was a direct result of the McIvor decision, which took 20 years to move through the courts. Because this legislation is very narrow in scope, sex discrimination, unfortunately, remains in the status registration provisions. Not all descendants of the Indian women who lost status through marrying out have gained status back. The first generation was covered by Bill C-31 in 1985, the second generation through this year's Bill C-3, but further generations remain cut off from Indian status.

The only way to be sure that such discrimination is eliminated from the Indian Act is to place descendants of status Indian women on the same footing as descendants of Indian men. Today aboriginal women are not treated equally as transmitters of status. As a result of this discrimination, thousands of their descendants have been forgotten.

Another remaining problem relates to the post-1985 Indian Act registration rules and how they operate in cases of unstated paternity. In 1985 Canada went from a one-parent descendancy rule, which favoured Indian men, to a new system called the second generation cut-off rule. Now whether you were an Indian man or woman, mixed parenting is only allowed for one generation. After the second generation of mixed parenting, a person is no longer an Indian. Today, when a status mother does not disclose the father's identity, the child's registration can only be based on the mother's entitlement. From 1985 to 1999, this resulted in the downgrading or outright loss of Indian status to approximately 50,000 Indian children.

The new second-generation cut-off rule will result in a drastic reduction of the status Indian population over the course of a few generations. Status Indians, like many other Canadian citizens, fall in love and have children with people from other cultures. This common social occurrence, when paired with the second-generation cut-off rule, has the perverse result of depriving the children of these unions of either their Indian status or the ability to pass status to their own children.

It has been estimated that within 60 years only one-third of the descendants of the current status Indian population will be entitled to status. The number will continue to decline. Academics and demographers alike have argued that the Indian registration rules introduced in 1985 will lead to the legislative extinction of status Indians.

A clear solution to this problem would be for Canada to return to a one-parent descendancy rule for Indian status and apply it equally to men and women. However, everyone here can acknowledge that the capacity of courts to deal with these issues is very limited. CAP is seeking a political commitment to examine and address aboriginal citizenship, with all the associated broader questions.

Since the passage of Bill C-3 in December 2010, the federal government has launched the exploratory process. It is not a consultative process, which we like, and I'm pleased to say the government has not pre-determined or pre-defined the agenda or questions with regard to Indian registration, band membership, and aboriginal citizenship. CAP is currently engaged with the process and we're hosting dialogue sessions across Canada.

Section 74 of the Indian Act allows bands to elect chiefs and councils according to their own customs. Currently about 30% of bands have adopted their own custom codes. Under these rules a band can admit to membership people who do not have status. They can also deny membership to any status Indian except Indian women restored under paragraph 6(1)(c).

Despite this apparent opportunity to break away from the Indian Act, 30% of the bands have adopted membership rules that are more restrictive than the Indian Act itself. CAP was pleased when the Conservative government delivered on its promise to repeal section 67 of the Canadian Human Rights Act. Since 1977, section 67 has shielded bands from complaints of discrimination stemming from membership codes plus other issues.

In June of this year the transition period ended. We expect that many of the custom election codes will now be challenged under the Canadian Human Rights Act. My understanding is that Aboriginal Affairs and Northern Development has not provided any resources to the bands to review and update their membership codes or to ensure they are in compliance with the Canadian Human Rights Act or the Canadian Charter of Rights and Freedoms. That is really unfortunate, because there are some bands that are being very proactive in addressing this issue. I believe in giving credit where credit is due.

In regard to aboriginal citizenship, CAP takes the position that the right of aboriginal peoples to determine our own citizenship is an inherent right derived from the Creator and protected both under section 35 of the Constitution Act, 1982, and under the UN Declaration on the Rights of Indigenous Peoples. Our right to self-government was never distinguished.

We view the exploratory process as the beginning of a long process of questioning and thinking, and as we move towards self-determination and citizenship, we are being given the chance to come up with the solutions to long-lived problems we've had to face.

The possible self-government structures for urban aboriginal peoples are wide-ranging. CAP has been working on these challenging issues for many years and at the same time struggling with the reserve focus of federal government policies and programs. Federal and provincial wrangling has slowed progress for urban aboriginal populations.

With the resolution of the federal government's responsibility regarding Métis and non-status Indians, aboriginal and state relations will be very clear, and some of the on-reserve and off-reserve distinctions will be resolved.

My colleague Dwight will speak further to that.

The education of our children and youth is a priority of the first order for us. Aboriginal youth have the highest dropout rates, the lowest levels of literacy, and the lowest levels of skills development. The odds are better that our youth will end up in jail than that they will graduate from high school. It is education that will improve our economic situation and our lives. It is education that is integral to reducing poverty in our communities and eliminating our dependencies.

At the Summit on Aboriginal Education held in February, we were encouraged by the discussions about strengthening aboriginal success in education. The provincial and territorial ministers of education have recognized that in the next 15 years, aboriginal students will represent over 25% of the elementary student population in some provinces and territories. We encourage the Prime Minister to call a first ministers meeting on education at which an interjurisdictional commitment to improve school experiences for our students could be mobilized.

Last, I want to talk to you about the Canadian firearms registry. Currently, aboriginal firearms owners who are not compliant with the Firearms Act can incur criminal liability for unauthorized possession of non-restricted firearms under sections 91 and 92 of the Criminal Code. In the last couple of weeks, the government gave notice concerning the bill to abolish the long-gun registry.

CAP joins many other aboriginal organizations across Canada in calling for an end to the long-gun registry. We view the licensing and registration requirements imposed by the registry as an infringement on our right to hunt. Aboriginal hunters and harvesters are not part of the crime problem, and the registry is ineffective and wasteful. The infringement on aboriginal treaty rights to hunt, trap, or fish is not acceptable to our organization. CAP remains supportive of regulations requiring hunters and harvesters to secure an acquisition licence and to follow rules for the safe storage of firearms.

In conclusion, I wish to express our appreciation for the attention the Prime Minister has brought to aboriginal issues by meeting with national aboriginal leaders. In the days ahead, my colleague and I look forward to active engagement with various House of Commons standing committees that have an important role to play in moving the aboriginal agenda forward.

At this point I'll turn to my colleague, Vice-Chief Dwight Dorey, to speak on the issue of section 91.24.

[Michael Wernick]

Thank you for the question.

We actually deal with a fair number of private members' bills and private senators' bills. In terms of government legislation, I hasten to add that the government will decide whether to pursue legislation or not, and Parliament will decide whether to adopt it. There were a number of statements of intention in the Speech from the Throne and the budget to proceed with legislation in this Parliament—and there are others that were being discussed, which will need a cabinet decision as to when and whether they go forward.

To pick up on the question from Ms. Duncan, there are still some first nation consultations to be done before we would think about tabling a bill.

Not strictly speaking in the scope of this chapter, you'll know that Bill S-2 has already been tabled. That's the matrimonial property issue coming back for the fourth time. Hopefully, Parliament will find a way through that in the next little while.

You'll see a number of bills that are related to land claim settlements and treaties. There will probably be at least three or four of those in the next year where you have a specific agreement and you need implementation legislation.

There are probably two that are the most relevant to the chapter. One is water standards legislation. There was a bill on this in the previous Parliament, and we're now in discussions with first nations groups about whether we can make it more palatable. I think you'll see water standards legislation within a matter of months at the outside. That goes straight to one of the issues in the chapter.

The big, elusive one is probably first nations education. We're going through the exercise with a national panel, that is, as a joint project with the Assembly of First Nations—and not without controversy in first nation circles. Once we have that report around Christmas, the minister and the national chief will have to decide how to move forward. I think there's a very good chance of government legislation on first nations education in calendar year 2012.

Opposition Motion--National Suicide Prevention Strategy

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Madam Speaker, I know the member has spent a lot of time on the health committee and has a number of things that she has already spoken of today.

I will go back to one part of my presentation that I did not get to develop as much as I would have liked. It is in relation to Bill S-2 and what we would be implementing in relation to matrimonial property rights. I think this would be a fundamental improvement to the lives of first nations people where women, in particular, when a marriage breaks up, would be able to have access to the family home via this new legal vehicle. I believe it is perhaps the first time in our history as a country that aboriginal people on reserve would be able to remedy situations that they find themselves in with this legal device so that they could actually retain a family home instead of perhaps having it simply taken from them in a marriage breakdown, even though they have young children and would prefer to live there.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Madam Speaker, it is a pleasure to rise and speak on this topic today as it reminds me of one of those occasional days in the House when we do have meaningful debate that sets aside a lot of partisan-charged rhetoric. These kinds of debates allow us to have really good discussions and allow us to bring good ideas forward. That has happened today, and I want to commend the mover for bringing forward this motion.

Coming from an aboriginal family and living in an aboriginal community for much of my life, I have seen this issue unfortunately occur in many families. Others in the House have talked about that because we have all experienced the effect of suicide in our lives.

I do recall hearing a simple statement over the years and it is a simple statement that bears repeating, and that is that no one ever wants to commit suicide, he or she just wants the pain to end. So that is where I will start.

I would like to also extend my sympathies to all of the families that have been affected by suicide throughout the years. This tragedy exacts a terrible toll in grief and heartbreak, and leaves no one unaffected.

My hon. colleagues today have spoken about initiatives undertaken by the Public Health Agency of Canada regarding this issue. I want to speak a bit about how, through its initiatives and investments, our government is working with its partners to break the cycle of hopelessness and despair that still exists in some aboriginal communities.

Our government has invested in many programs and initiatives that are playing a critical role in improving the quality of life for aboriginal people, building safer, healthier and stronger communities. In the time I have today, I will only talk about a few of them.

We recognize that it takes more than bricks and mortar to build and sustain a healthy community. That is why our government is working with its partners to strengthen what is the cornerstone of any community, the family.

I would like to point out that we introduced just last week Bill S-2, family homes on reserves and matrimonial interests or rights act. This bill offers a balanced and effective solution to long-standing injustice that affects people living on reserves, particularly women and children.

In the event of a relationship breakdown, death of a spouse or common law partner or family violence, many of the legal rights and remedies relating to matrimonial interests in the family home that are available off reserve are not available to individuals who live on reserve, with potentially very serious consequences. I am looking forward to the passage of this important legislation because I truly believe all parties in this place would prefer to see women and children protected rather than being left vulnerable by this legal void.

In order to further support the family our government initiated and continues to be engaged in an ongoing reform of the first nations child and family services program with a focus on results. We are working with our partners in the provinces and first nations themselves to implement what is called an enhanced prevention focused approach aimed at providing better outcomes for children and their families.

This is a new model designed to ensure the best practices in prevention-based services are brought to first nations communities. It broadens the tool kit of culturally appropriate services, which will help first nations family and child services work with families during breakups and keep children in their homes.

We launched this model in 2007 with a signing of a tripartite agreement with the province of Alberta and Alberta first nations. Today, tripartite agreements are also in place with our first nation partners in Saskatchewan, Manitoba, Quebec, Nova Scotia and Prince Edward Island. With these six agreements in place, enhanced prevention services are reaching close to 70% of first nations children who live on reserves in Canada.

Aboriginal Affairs and Northern Development Canada also works with a broad range of stakeholders on the co-ordination of family violence programming to better protect the interests of first nations women, children and families.

Partners in this effort include the National Aboriginal Circle Against Family Violence, the Native Women's Association of Canada, the Assembly of First Nations and of course the provinces and territories as well as many of the departments within our federal government.

By providing family violence prevention and protection services, we can enhance the safety and security of first nation women and children, and achieve a more secure family environment for children on reserve.

We recognize, however, that even with the best efforts at prevention, crises can befall families, first nations families, all families in Canada. This is partly why Aboriginal Affairs and Northern Development provides operational funding of some $18 million a year to support a network of 41 shelters, serving approximately 300 first nations communities.

Every year, approximately 1,900 women and 2,300 children access these services. We would prefer they were not needed, but it is a reality throughout society that we must face.

These are just a few examples of what our government is doing to protect the welfare of first nation children and families, to keep those children safe, to keep families together and build stronger, healthier communities.

This group of government programs I have described do not work in isolation. They are part of a much broader, co-ordinated effort by our government, developed in partnership with aboriginal people and organizations.

We continue to listen to aboriginal people and we have heard their concerns. We are taking action, and will continue to do so. For example, in June, the hon. Minister of Aboriginal Affairs and Northern Development and the National Chief of the Assembly of First Nations announced a Canada-First Nations joint action plan. The goal of the action plan is simple: to improve the lives of first nations people across Canada, and in doing so, contribute to a stronger and more prosperous country.

The action plan is based on common goals and shared principles. It states our commitment to work together to achieve concrete and practical progress, to build effective, appropriate and fully accountable governance structures, which is important, and empower the success of individuals through access to education, opportunity and property. It reflects our commitment to implementing the programs and investments that enable strong, sustainable and self-sufficient communities, and to creating conditions to accelerate economic development opportunities for all Canadians.

Of equal importance, this action plan reflects our shared commitment to respect the role of first nations culture and language in our history and in our future. The plan also specifically has important goals in relation to four areas, education, accountability, transparency, economic development and negotiation, and implementation.

I would like to speak a bit more, though, about education, as I see it as a key and important area which will help alleviate much of the hopelessness that we see in first nations communities. This engagement process that I spoke of recommends a framework for providing modifications to the way we deliver K to 12 education in first nations communities.

The national panel is holding a series of round tables and other activities across the country to engage parents, students, teachers, elders, educators and anyone, in fact, who has an interest in improving first nations education. These round tables are enjoying strong participation.

The panel will make recommendations to the minister and to the national chief on options for positive change for first nations students. This could include the possibility of new legislation to improve the governance framework and clarify accountability for first nations elementary and secondary education. We look forward to receiving this panel's report and recommendations by the end of the year.

The action plan commits Canada and the Assembly of First Nations to pursue initiatives that increase the transparency and accountability of first nations government through their respective constituents. This would include initiatives to improve first nations electoral processes, such as those advanced at regional first nations organizations, such as, the Manitoba Assembly of Chiefs, which has called for a common election day as well as a four year cycle. Changes such as this will greatly improve the transparency process of their electoral practices.

In many remote locations, first nations communities can be especially vulnerable to fire, flood and other natural disasters. The action plan also includes a joint commitment to continued development and implementation of emergency management frameworks.

Perhaps the most vivid illustration of our action and real improvement in the aboriginal quality of life is Canada's economic action plan. When the government unveiled the first action plan two years ago, we made sure that this comprehensive blueprint for economic renewal focused on priorities that were and remain foremost in the minds of Canadians: the construction of more reserve housing; improving on-reserve health; developing training and skills development opportunities for young people taking part in these construction activities; and accelerating ready to go projects in first nations communities in three key areas: schools, water and critical community services.

By means of the economic action plan, we invested $1.4 billion over the past two fiscal years on things that matter most to all Canadian families, aboriginal and non-aboriginal alike. I believe all of these investments have made a difference in supporting our first nations communities and I look forward to the opportunity to see the fruits of all of this investment in the years to come. Unfortunately, though, it does take time.

I believe that our efforts as a government will continue to put aboriginal people's interests first and I look forward to being a part of that plan.