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

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I am wondering if the member would provide some comment on the Government of Canada's obligation to meet with the leadership of first nations communities in developing legislation. It is not for the government, on its own, to go to the House of Commons or the Senate and say what it wants and to then impose it. There is an obligation to work with first nations to come up with legislation that makes sense and that has wide support among first nations leaders. Would she not agree with that statement?

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

Mr. Speaker, there have been numerous Supreme Court decisions that have reaffirmed the duty to consult, but the duty to consult does not stop at the duty to consult. It is the duty to consult and accommodate.

Government members will say that they have spoken to people. That is great, except that what they then did was disregard what they heard. The ministerial representative, who was hired by the former aboriginal affairs minister, Jim Prentice, a number of years ago, did a thorough analysis of what was required in the legislation and the process for it. The government has largely disregarded what its own ministerial representative recommended.

Then there is article 19 of the UN Declaration on the Rights of Indigenous Peoples, which talks about free, prior and informed consent. The government, after much pressure, became a signatory to the UN Declaration on the Rights of Indigenous Peoples and then promptly disregarded its obligations under it.

The member is absolutely correct. The government has not only the duty to consult but a duty to accommodate. It also has a fiduciary responsibility such that when it puts forward legislation like this, first nations actually have the tools and resources they need to implement the legislation.

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

Mr. Speaker, we heard from the member for Miramichi, the parliamentary secretary and now the Minister of Health, both in committee and here in the House.

In terms of the legislation itself, this bill has a huge flaw, specifically concerning common-law spouses in some provinces such as Quebec and Saskatchewan, if I am not mistaken. In fact, the law is unenforceable in cases where spouses do not have access to property rights under provincial legislation. That is a serious problem. It means that this bill can hardly be described as equal or fair.

Another important point is the fact that first nations have spoken out against this bill. Perhaps we should listen to them. Furthermore, two votes were already held, when first nations representatives were here. I could quote Michel Audet, among others. We could look at the record. Two votes were called in the House to prevent these people from speaking out. All they said was that they did not have enough time and that we should wait to pass the bill.

What are the member's thoughts on that?

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

Mr. Speaker, the member is absolutely right. First, there are some serious concerns about whether provincial court judges currently have the background to deal with some of the issues related to the complex property codes. Also, the member rightly pointed out the issues related to common law status in provinces such as Quebec and its recognition by provincial governments.

What we would actually be doing is setting up a regime that would have different rules applying to different first nations across the country. There would not be any confidence that if one lived in one province, one would have access to the same property rights one would have in another province. That is certainly one problem, and it is a problem a number of witnesses identified in terms of both the current provincial court rules on matrimonial real property division and a judge's ability, currently, to interpret those complex land codes.

The second matter the member raised in her question was, of course, the whole process of how the bill came forward and how we were able to hear from witnesses. Witnesses were limited in their ability to testify. Certainly we were limited in our ability to pose questions. It is our responsibility as parliamentarians to do that due diligence when we have legislation before us to make sure that we understand the legislation and its implications.

[Joan Crockatt, Conservative, Calgary Centre, AB]

Mr. Speaker, it is actually the Liberals and the NDP who are attempting to stall the protections for aboriginal women. One of the NDP's convoluted arguments is that our government did not pass the legislation fast enough. Then it complains that the government wants to get the bill through. All the while, the NDP is opposing the legislation.

The public needs to know that the NDP has complained that the government has not consulted with every single aboriginal community in Canada, when, in fact, we have spent $8 million and have consulted with 103 communities. Bill S-2 would save lives. It would help 100,000 people gain protections.

I would like the NDP to address the issue of how it can vote against this bill that would help save lives.

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

Mr. Speaker, in case the government has failed to notice, it has been in government since 2006, and it finally introduced this bill in the Senate, back in 2011. Then it delayed bringing it forward in the House. Somehow or other, it is the New Democrats' fault, because the government failed to bring a bill forward for debate. When it finally did bring it forward for debate, it wanted to eliminate debate.

It does not actually want people to stand up and speak about it. It does not want to call witnesses and hear from them. It does not want to have the ability to question the witnesses.

Part of our job as parliamentarians is to hear from witnesses, on all sides of the House, to consider the legislation before us and talk about whether the legislation is feasible and whether it can be implemented.

The members claim that the legislation is going to save lives, yet they are not putting any resources into these communities to deal with it. What about extra policing costs? What about access to the court system? What about access to alternative dispute resolution? What about access to legal aid? What about transition shelters? Not one dime is going into those measures.

If the government is serious, I would call on it to move forward on a national action plan to address violence against aboriginal women and children. Where is its action on that?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, as we have made clear throughout the process for Bill S-2, the Liberal Party does not question the need to address the legal gaps and other problems surrounding the family breakdown for first nations living on reserve.

However, the political rhetoric of the government members regarding this bill has been absolutely shameful. It is reprehensible for the minister to stand in the House and say “I know opposition members do not care about aboriginal women and children, but we do.”

This partisan approach, this simplistic approach is completely against what the members on this side are objecting to. This problem will only be solved in a holistic way and if it is in keeping with the advice of first nations leaders and organizations and first nations women themselves.

The truth is that this bill will not effectively deal with the problem of matrimonial breakdown on reserves and fails to provide first nations with the tools to implement appropriate measures for families to resolve disputes safely in a culturally appropriate way.

Furthermore, the assertion of the government that the bill is the answer to the disproportionate levels of domestic and other violence against aboriginal women is appalling. It is patently dishonest for the Minister for Status of Women to stand in the House and claim emergency protection orders alone will save lives.

The fact is the government's decision to move forward with this legislation, without dealing with the issues of access to justice and gaps in enforcement capacity, could actually make matters worse.

When Mr. David Langtry, acting chief commissioner, Canadian Human Rights Commission, testified before the Status of Women committee, he asked parliamentarians to consider three fundamental questions. First, would the proposed legislation provide women with fair access to justice? Second, would the proposed legislation ensure that women would be able to access their rights in a safe way? Third, would first nations communities have the capacity they needed to develop and implement their own matrimonial real property systems?

Although I would broaden the questions to include first nations men, I believe answering these three questions provides an ideal framework to analyze Bill S-2 in both its scope and effectiveness. As one reviews the limited evidence the House of Commons committee was willing to hear, experts who testified before the Senate and the many stakeholders who had provided comments outside the committee process, the answer to all three of these questions was a resounding “no”.

The government's own ministerial representative on matrimonial real property on reserve, Wendy Grant-John, noted in her report:

The viability and effectiveness of any legislative framework will also depend on necessary financial resources being made available for implementation of non-legislative measures such as programs to address land registry issues, mediation and other court related programs, local dispute resolution mechanisms, prevention of family violence programs, a spousal loan compensation fund and increased funding to support First Nation communities to manage their own lands.

She went on to say:

Without these kinds of supports from the federal government, matrimonial real property protections will simply not be accessible to the vast majority of First Nation people.

The Liberal Party is very concerned that the government disregarded her advice and that of first nations from across the country and brought forward legislation without these non-legislative supports.

The potential solutions under the interim rules imposed by this legislation rely heavily on access to provincial courts.

As we have heard from many witnesses, many first nations communities are in areas with limited access to courts or lawyers and provincial courts may not be financially or even physically accessible for many first nations individuals.

Michéle Audette, president, Native Women's Association of Canada, put this issue into context when she told the committee:

Canadian women find it difficult to access justice because of the high costs involved, or, in the case of those who live in remote areas, because of the long distances to be travelled.

Therefore, imagine what it is like for women in our aboriginal communities. It is even worse.

She went on to say:

—it would be difficult for a woman who lives in a remote community such as Attawapiskat or in other communities in other provinces, such as in Quebec, to find a lawyer who knows family law and the Indian Act.

The persistent underfunding of legal aid systems across Canada have left them ill-equipped to deal with current demand. It is clear that they will be unable to deal with the additional burden of the unique legal and cultural realities of property division on reserve.

Another fundamental challenge facing the provincial court systems relates to a lack of experience with and understanding of these matters.

To mitigate these issues of access and cultural sensitivity, we heard time and again about the importance of the availability to alternate dispute resolution mechanisms in first nations communities to deal with matrimonial breakdown if there was no commitment to provide funding for alternatives to the court system, which would be more cost effective and culturally appropriate.

The government does not have a comprehensive plan to deal with these realities, which will deprive first nations individuals of practical access to the legal rights the law claims to provide.

The government has tried to frame this legislation in terms of responding to violence against aboriginal women. As noted earlier, it has emphasized that this legislation provides for emergency protection orders for women living on reserve and claims this will save lives.

Unfortunately, the government's decision to move forward with legislation, without non-legislative support, maybe the opposite for many first nations women.

Regional Chief Jody Wilson-Raybould addressed this in her testimony when she said:

—preliminary research we have uncovered shows a correlation between increased harassment and threats of violence against women who file for protection orders in instances where there are issues with their enforcement. We question the capacity and ability of such orders to be effectively enforced, particularly in remote communities with limited access to police services.

This very telling quotation must be viewed in light of the lack of funding available to first nations police forces and the fact that some first nations communities have far greater police presence than others.

While we are happy that the government is finally listening to first nations and Inuit police forces and the communities they serve by providing a longer-term funding agreement, it is clear that the government is still not providing these essential services with the resources they need to do their job.

In other communities serviced by the RCMP or other police services, there is often an inadequate police presence and the enforcement of existing laws is an ongoing challenge for these overstretched offices.

Beyond issues around adequate enforcement, the bill also fails to address the root causes of family breakdown and domestic violence, mainly the lack of housing, inadequate funding for child welfare and inadequate access to legal aid and other services for aboriginal women. For example, only 41 shelters serve more than 630 first nations communities in Canada.

Even Betty Ann Lavallée, the national chief of the Congress of Aboriginal Peoples, told the Senate that this bill should address the issue of emergency housing for victims of domestic violence, a recommendation that the government clearly chose to ignore.

We are concerned that many first nations do not currently have the capacity to develop their own rules around matrimonial property and will be left with the provisional rules for an extended period of time. That means communities will have provisional rules that do not reflect their traditional laws, culture or reality imposed upon them without the time or the capacity to move beyond them.

The government cuts to the National Centre for First Nations Governance, tribal councils and other institutions focused on building first nations governance capacity is further undermining the ability of first nations to develop and implement such a review.

The government talks about a promised centre of excellence which would help first nations develop rules of their own, but this will not be up and running until after the passage of the bill and likely after the time frame allocated to most first nations to develop their own rules.

There will only be a 12-month window for the first nations to develop and adopt their own regulations regarding matrimonial real property on reserves, before the provisional rules are imposed.

All the testimony we heard on the issue suggested this was a completely unrealistic time frame. The legislation that brought first nations communities under the jurisdiction of the Canadian Human Rights Act provided a three-year transition period.

We heard from the Canadian Human Rights Commission officials that in their experience that period may not even be enough, but would be more realistic.

Officials from the first nations Lands Advisory Board had more than 10 years of experience facilitating first nations law-making for matrimonial real property rights on reserve and they made it clear that they were:

—concerned about the potential impact of the proposed legislation on the 68 first nations that are presently waiting to become signatories to the framework agreement, and the other communities across Canada.

They went on to say:

Successful enactment of these laws by framework agreement signatories has invariably been the culmination of a multi-year, community-driven, consensus-building process...

The AFN has also suggested 36 months would be a more appropriate transition period and that is the time provided in this very bill to first nations in the First Nations Land Management Act process. Given current capacity issues and the fact that the centre of excellence would take time to develop, it was clear that all first nations should have the benefit of a consistent 36-month transition period to develop their own culturally sensitive matrimonial property regime, but the government refused even that common-sense amendment.

Although general public discussions were held on first nations matrimonial real property in 2006-07, it is important to note that both AFN and NWAC, the two first nations organizations the government engaged to facilitate those meetings, oppose this bill. Consultation requires both a substantive dialogue and the government members to listen and, when appropriate, incorporate what they hear into the approach. The Native Women's Association of Canada and the AFN have been clear that they are not confident the legislation will resolve the problems associated with matrimonial real property on reserve and have pointed out that the current bill will fail to address many of the recommendations repeatedly raised each time this legislation has been brought forward.

Further, given the recommendations of the government's own representatives and first nations about the need to deal with capacity and resourcing issues before, or at least in concert with, legislation, it is curious why the Conservatives decided to introduce the bill in the Senate where it was subject to increased restrictions on incorporating resources.

Since this bill was initiated in the Senate, it cannot generate any spending.

Then, despite the fact that the legislation was introduced in the House of Commons on behalf of the Minister of Aboriginal Affairs and Northern Development, the bill was sent to the status of women committee to be pushed through with only two weeks of witnesses.

This legislation deals with legal and cultural issues in the first nations, for both men and women.

It was completely inappropriate to, for reasons of expediency, have the study of these complex matters done by a committee with no prior experience with aboriginal issues. The fact that the committee did not allocate reasonable time to hear from organizations with the expertise and experience to highlight some of the challenges was particularly disappointing. The AFN and the first nations Lands Advisory Board had less than 20 minutes of committee time and NWAC was allocated 8 minutes. The Conservative majority then pushed this flawed bill through the committee without accepting a single amendment. This is not the way to produce effective and well thought out legislation.

The Liberal Party will not be supporting this legislation because the government has decided to move forward in a way that not only ignores many of the fundamental issues at stake, but actually may make things worse.

[Dean Del Mastro, Conservative, Parliamentary Secretary to the Prime Minister and to the Minister of Intergovernmental Affairs]

Mr. Speaker, I have a bit of a history lesson for the member because this is a consistent position for the Liberal Party.

When Conservative Party Prime Minister Borden extended the right for women to vote in Canada in time for the 1918 election, that was a Conservative prime minister extending rights. When Prime Minister Diefenbaker extended the right to aboriginals in Canada to vote for the first time in 1960, that was a Conservative prime minister extending rights to Canadians. When this party and this government stood up to extend the Canadian Human Rights Act on reserve and that party stood against it, that was our Conservative Prime Minister extending rights. Our Prime Minister is extending rights and protections again to aboriginal women in our country.

What is shameful is that member and that party are once again standing up against fundamental rights in our country for people who woefully and rightfully deserve them. When will she join with this party and our Conservative Prime Minister and do the right thing for women in our country?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, it is shameful that the member does not understand the basic duty to consult and the need for free, prior and informed consent on any legislation, any policies or programs that affect first nations, Inuit and Metis people in Canada. The bill continues the paternalism of the government thinking “father knows best” and refuses to listen to what native women in Canada are saying. They do not want this bill until it can actually do the job it is intended to do.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, I appreciate my colleague's comments even though the Liberal government put a 2% funding cap that has been problematic for first nations communities with respect to their resources, but while there are obvious gender discrimination problems with MRP on reserves, Bill S-2 will not be possible to implement because of lack of financial resources to support first nations governments to actually implement the law, lack of funding for lawyers, lack of funding to account for limited geographic access to provincial courts, lack of on-reserve housing and land mass that would be necessary to give both spouses separate homes on reserve, no ability to enforce this legislation, particularly in very remote areas, no equipping provincial courts to deal with complexities of land codes on reserves and no dollars to assist women who have to buy out a partner if they are awarded homes.

On that note, I want to reiterate that the first nations are basically seeing this as another assimilation bill. Could my colleague comment on some of the issues that I brought forward, and whether we would see the success of the bill if it were to go forward?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, I want to remind my colleague that had the Kelowna accord been implemented seven years ago, the $5.1 billion would have dealt with a number of these issues, particularly around housing, education and the kinds of things that we know are a root cause of violence.

The kinds of resources that native women in Canada are asking for are really important, as the member asked about. They include shelter space, housing and mediation. Women do not have the resources to be able to buy out the partner and the bands have told us time and time again they do not have the capacity to help the woman buy out the partner. This is a piece of paper that cannot and will not work unless the resources and the root causes are dealt with.

[The Acting Speaker, Barry Devolin]

Order, the time for government orders has expired. The hon. member for St. Paul's will have six minutes remaining in questions and comments when this matter returns before the House.

Statements by members, the hon. member for Lanark—Frontenac—Lennox and Addington.

Bill S-2—Time Allocation Motion

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

moved:

That, in relation to 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, not more than five further hours shall be allotted to the consideration of the third reading stage of the bill; and

that, at the expiry of the five hours provided for the consideration of the third reading stage of the said bill, any proceedings before the House shall be interrupted, if required for the purpose of this order, and, in turn, every question necessary for the disposal of the said stage of the bill shall be put forthwith and successively, without further debate or amendment.

[The Speaker, Andrew Scheer]

Under Standing Order 67.1, there will now be a 30-minute question period.

Questions, the hon. member for Skeena—Bulkley Valley.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, I was commenting to my friend across the way that the government might need a more efficient system for signing all of these orders into the House because it does it so often. It must just change the name of the bill, photocopy it, change whatever stage it is at and ram it through.

My question is very simple. We have heard from first nations groups who have said this legislation is wrong and it will not help the situation. It is not what they need.

Further to that, the government at some point in time is going to have to learn how to do sincere consultation. Consultation does not mean ramming things down throats. Consultation does not mean imposing time limits on every debate. Consultation does not mean eroding the very foundations of our democratic institutions, which is what the government is doing here today.

We have a process question. The government is invoking the power it has as a majority government to shut down debate on a bill that is opposed by the very people it would affect. The government is somehow saying Big Brother knows best. The Conservatives are just going to tell first nations how things are going to be done, as if that is going to help the situation that has been bad for so many years.

The minister has been on his feet a number of times on this very same issue. Has he better talking points today as to why his government is so perfect when it writes these bills that it does not need to listen to the opposition or to the very first nations groups upon whom it is going to impose this legislation?