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

[Michelle Rempel, Conservative, Parliamentary Secretary to the Minister of the Environment]

Mr. Speaker, I share my colleague's concerns for women's issues. We have actually participated in events encouraging women to run for politics. I appreciate her enthusiasm and keen interest to ensure there is equality for women across the country.

As some of my colleagues have pointed out this morning, aboriginal women lack a fundamental right that the rest of the women and my colleague in the House share today, which is if we are in a relationship that ends, we receive or have the right to receive 50% or more of the property that was part of that relationship. This is a fundamental right. If any of us stood in the House today to share a story where that was not the case, there would be shared outrage and concern for a lack of equality.

Why does my colleague, who I know shares these concerns with me, refuse aboriginals the same rights that we in the House today have to our property.

[Mylène Freeman, NDP, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, the government is ignoring the rights of aboriginals to have their own ability to control these things.

Ellen Gabriel is a member of Kanesatake, which is within my riding. She is a former Quebec Native Women's Association president. She said:

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

While no one will argue against the fact that solutions must be found on the issue of gender discrimination in regards to MRP or that we must work together to find ways to help First Nations communities to have access to safe drinking water. Sharing equal responsibility requires the means to effectively implement measures that do not create further burden upon communities; financial or otherwise.

The thing with this bill is that it will require more financial resources and actual consultation so we can implement rights for aboriginal peoples, not—

[The Acting Speaker, Barry Devolin]

Order, please. The hon. member for London—Fanshawe.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, as a former member of the Standing Committee on the Status of Women, my colleague most certainly has some insight into the situation.

Interestingly enough, as an MP in an area that contains a reserve, the member will also be very aware of the fact that the resources are quite limited in terms of land mass, educational opportunities and of federal investment.

Regarding the fact that there has, for a number of years, been a 2% cap on investments or financial resources given to first nations, despite the fact that is an exploding population and the fastest population growth in Canada, I am interested in her ideas and comments, as a member with a reservation in her area.

[Mylène Freeman, NDP, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, one thing that has recently happened in Kanesatake is having its NCBR funding cut, unexpectedly. It just did not come in and it normally comes in every year. After attempting to find out what was going on, finally there was a letter from AAND saying that it had cut the funding, it was over and Kanesatake was not getting any, final decision. This is extremely frustrating. It took about six or seven months to get the letter to understand what was happening.

NCBR funding went toward youth centres where children would go after school if they did not have anywhere else to go, and that had programming. The funding also provided lunch programs at the schools. There are so many kids who cannot afford to have lunch and will not have a meal that day unless the school provides it for them. We are talking about serious problems. Ignoring these problems and implementing bills unilaterally that would cause more financial problems is worse for aboriginal rights than supposedly solving MRP.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I will proudly be sharing my time with the member for Sudbury.

I am thankful for the opportunity to speak to this bill. I have been listening to the debate this morning, starting off with the Minister for Status of Women, who kicked it off. My analysis of what I have heard so far is that the minister and the Conservative members of the House, who stood to speak to the bill, are being paternalistic. Members may wonder how that can be as they are women. It is still possible for women to be paternalistic. That is what we are hearing in the House.

The minister made a comment in one of her answers about the opposition saying that we should consult, consult, consult, that we have had enough with consultation and it was time for action. What does it mean if the government consults when it actually does not take those recommendations? Is that actually consultation? I do not think it is. It is bogus consultation to gather everybody in a room together, nod thoughtfully, with the appropriate tasks and yeses, and then totally ignore everything that was said.

The Conservatives have put together a bill that is not based on consultation. They stand here all sanctimonious saying that the opposition will not stand up for women, aboriginal women and first nations people. We are standing up for women. That is what I am doing right now. I am standing up for human rights in Canada. What the Conservatives did is not consultation. It is disrespectful and paternalistic.

The intention of the bill is to give equal property rights to both spouses in the event of separation. We know that same sex marriages are legal in Canada, that is something I am really proud of, but in the majority of cases we are talking about on reserve and, in this case, historically that is generally a man and a woman. What the bill tries to do is effect equal property rights distribution. However, we do not believe it can be implemented for lots reasons, many of which have been enumerated by first nations stakeholders.

Parliament has heard these concerns time and time again, but the Conservatives keep ignoring them. Imposing provincial legislation on first nations without their consent is ethically and practically problematic. It ignores their inherent rights and sovereignty.

If I were drafting a bill about matrimonial property rights on reserve, who would I consult? I would probably consult widely, but put a lot of weight on any testimony or any opinion that the Native Women's Association had, as well as the Assembly of First Nations.

The Native Women's Association and the Assembly of First Nations both demand better legislation because the consequences of passing this legislation are so dire. Therefore, we oppose this bill, along with those two key groups and many experts across the country.

I mentioned that the Conservatives were ignoring that consultation. What exactly are they ignoring? The Assembly of First Nations facilitated a dialogue around matrimonial property rights and found the following three broad principles that would be key to addressing matrimonial property rights on reserve: first, recognition of first nations jurisdiction; second, access to justice, dispute resolution and remedies; and third, addressing underlying issues such as access to housing and economic security. That is what came out of the AFN-facilitated dialogue. Bill S-2 does not deal in a meaningful way with any of those issues.

What else do we know the Conservatives are ignoring? There is a 2004 Senate report called "Still Waiting”, which highlighted the need for action on matrimonial property rights. It also recommended that the issue be referred to the aboriginal affairs committee.

We have heard lots of folks in the House talk about the fact that this will go to the status of women committee and not the aboriginal affairs committee. There is another solid recommendation that has been ignored.

We also had an aboriginal affairs committee report in 2005 called “Walking Arm-in-Arm”. This was the first study to consult with the Native Women's Association and the AFN, along with other first nation stakeholders. That is a positive step.

These were their recommendations: first, that the Native Women's Association of Canada and Assembly of First Nations be consulted in order to draft legislation, or Indian Act amendments; second, provide funds to help first nations draft their own matrimonial property rights codes; third, legislation should not apply to first nations that draft their own codes; fourth, amend the Canadian Human Rights Act to apply on reserves; and fifth, stress that all recommendations be Canada's recognition of first nations' inherent right of self-governance.

Not all of these recommendations are being taken into account in Bill S-2. That is what is being ignored. The bill is an insincere and overly simplistic attempt to rectify what is really a complex problem that is brought about by the Indian Act.

I am not, contrary to the minister's accusation, saying to continue to consult and consult needlessly. I am saying that we should listen to the consultation, take the ideas that came from it and use them, because it would be impossible to implement Bill S-2. It looks nice on paper, but it would be impossible to implement because of a lack of financial resources to support first nations governments to actually implement the law. It would be impossible to implement because of a lack of funding for lawyers and legal advice. It would be impossible to implement because of a lack of funding to account for limited geographic access to provincial courts. It would be impossible to implement the bill because of a lack of on-reserve housing and land mass that would be necessary to give both spouses separate homes on the reserve.

What does it mean when it is printed on paper and is passed and enacted? What does it mean if we cannot realize these rights in first nations communities?

We have heard from a number of my colleagues, and I agree with them. The NDP will not support any changes to matrimonial property legislation that are not accompanied by non-legislative remedies to serious problems. That would include ending violence against aboriginal women, addressing the housing crisis on reserves and ending systematic funding discrimination against first nation children. Those are the key things that need to be present if we are to look at the issue of matrimonial property rights.

I have stood in the House and listened to the debate. I have listened to the heckles from the sideline. I have listened to the member from Portage—Lisgar saying that we should be hanging our heads in shame over here. I have listened to her heckle from the other side saying that it is really important to recognize aboriginal rights and that we should be ashamed of ourselves for standing in the way of that. Well, if she will not listen to opposition members, if she refuses to do that, maybe at the very least she will listen to Ellen Gabriel, former president of the Quebec Native Women's Association and AFN grand chief candidate. She said:

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

While no one will argue against the fact that solutions must be found on the issue of gender discrimination in regards to MRP or that we must work together to find ways to help First Nations communities to have access to safe drinking water. Sharing equal responsibility requires the means to effectively implement measures that do not create further burden upon communities; financial or otherwise.

Should Ms. Gabriel hang her head in shame? Should she be ashamed for refusing to acknowledge women's rights?

Maybe the Conservatives will listen to Dr. Pam Palmater, who is a practising lawyer and professor of aboriginal law at Ryerson and a member of the Mi'kmaq Nation on the east coast. She talked quite a bit in committee about why the legislation was bad, why it should not be brought forward and why it should not be passed. Should Dr. Palmater be hanging her head in shame for not standing up for first nation women's rights? I hardly think so.

If the Conservatives refuse to listen to the opposition on this, at the very least they should have the respect to listen to the men and women who testified at committee, who have spoken out loud and clear on this issue and who are the real experts about how this will play out in their communities.

[Wai Young, Conservative, Vancouver South, BC]

Mr. Speaker, I am shocked that the opposition has had this paternalistic stand, saying that aboriginal women do not deserve the same rights as all Canadian women across this great land of ours.

I am particularly surprised because, as a member who has worked in the downtown east side of Vancouver, I have seen the ramifications of the fact that women do not have these rights on reserve. I have seen the women and their children on the streets. I have seen the women and their children having no money. I have seen the women suffer because there is this legislative gap that our government wants to correct.

I have also worked on the other side, with the YWCA in Vancouver to create social housing, to put a roof over heads, to put breakfast programs in place so that those children and those women can have what is a basic right.

To sit here today and hear that the opposition is saying these women should not have the same rights as every other woman across Canada is shocking. That means the spouses will not be able to have a house; they will not be able to have access to financial supports. I find that shocking.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, it is interesting how shocked she is. I am shocked at how little this member actually knows about this legislation.

First of all, it applies to on-reserve housing and matrimonial property rights on reserve, not women in downtown Vancouver.

If the member is so concerned about women having access to housing on reserve, then she should stop for a second and look at this law, look at the fact that it is saying we would create a legal regime here that actually would leave people homeless. There are no resources on many reserves to be able to actually have the housing there for men and women who do separate. This law has been written in a vacuum with absolutely no eye to how it would actually play out on reserve.

Back to Dr. Palmater, she herself said that if the minister actually listened to the voices of aboriginal women, he would have heard that aboriginal people do not want this bill as it is currently drafted. He would have also heard that what they do want is gender equality addressed in all of Canada's legislative initiatives.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Mr. Speaker, first I would like to thank the member for Halifax for her excellent speech.

She also gave an interesting overview of the situation and of what is presented in Bill S-2. She pointed out that the government did not listen at the consultations and did not pay attention to the recommendations in some of the reports tabled in the House.

I also think she touched on a very interesting point, which is that the first nations currently receive inadequate funding.

I would like to hear my colleague speak more about the fact that we should have listened to aboriginal women's groups on this subject, and that we should have examined other important issues for the first nations, such as providing adequate funding but also scrapping the Indian Act.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I will paraphrase the Native Women's Association of Canada's testimony about this bill.

They talked about holes in the quilt that were going to happen because of the creation of this bill. There actually is not funding in place to enact this legislation. They talked about the fact that they needed more time. They talked about a long-term plan—two years, five years, ten years—and that this sort of twelve-month turnaround is not sufficient for their communities to react.

This legal regime would be created with absolutely no resources on the ground to implement it or to uphold it. The Native Women's Association actually said these are not the types of plans they need. They need plans that are developed in co-operation with first nations and not just have government design it and then have this patchwork input from first nations.

My hon. colleague is absolutely bang on in her analysis.

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, I would like to congratulate my colleague from Halifax for a speech that was well said, and as usual, she is bang on.

Bill S-2 is an act concerning matrimonial real property on first nations reserve land. It makes changes to the Indian Act to allow for provincial family law to apply on reserves in the event of matrimonial breakdown or on the death of a spouse or common-law partner. While the intention of this act is to give equal property rights to both spouses in the event of separation, the bill cannot be implemented for many important reasons enumerated by first nations stakeholders. Parliament has heard these serious concerns again and again. The Conservatives have ignored these concerns in the drafting of Bill S-2. Imposing provincial legislation on first nations without their consent is ethically and practically problematic and ignores their inherent rights and sovereignty.

The federal Conservatives went to the trouble of consulting with first nations and the Native Women's Association on matrimonial real property, but ignored the results of the consultation when preparing the original legislation. While this iteration of the bill removes some of the most onerous parts of previous legislative attempts, it still refuses to recognize first nations' inherent rights and jurisdictions in this matter.

The Native Women's Association and the Assembly of First Nations both demand better legislation because the consequence of passing inadequate legislation is so dire. New Democrats oppose this bill along with the Assembly of First Nations, the Native Women's Association of Canada and many nations and experts across the country. Bill S-2 is the fourth iteration of similar legislation that the Conservatives have tried to pass since 2008. The NDP has opposed these every time they come up for debate.

The Assembly of First Nations facilitated dialogue and found three broad principles are key to addressing matrimonial rights and interests on reserves. One is the recognition of first nation jurisdiction; two is the access to justice, dispute resolution and remedies; and three is addressing underlying issues such as access to housing and economic security. Bill S-2 does not deal in a meaningful way with these three key principles.

There are two kinds of property: real and personal. Real property includes lands and things permanently attached to the land, such as a house. Personal property includes things that can be moved, such as furniture and money. Bill S-2 deals with matrimonial real property on reserves, property shared between spouses in a conjugal relationship or between common-law partners. There is a legal vacuum concerning real property on reserve due to a jurisdictional divide between provinces and territories, which have jurisdiction over property and civil rights within the provinces, and the federal government, which has jurisdiction to legislate Indians and lands reserved for Indians.

The Indian Act does not provide for the division of MRP upon marriage breakdown, and first nations jurisdiction is not explicitly recognized by Canada. This has led to major legal cases, which were dismissed by provincial courts because the provincial law cannot apply to lands on Indian reserves. Thus, a legislative gap was identified. Five different parliamentary studies have been conducted on MRP.

In 2003, “A Hard Bed to Lie In” identified the legislative gap and the fact that women have no rights in marriage breakdowns and that resulted in the fact that they have no choice but to leave their homes. It recommended that provincial civil law be applied on reserve.

In 2004, “Still Waiting” highlighted the need for precipitous action on MRP and recommended that issues be referred to Aboriginal Affairs and that consultation be conducted in a timely manner. It identified the lack of clarity for the rights of women on reserves as a human rights issue that was incurring reprimand from the UN.

“Walking Arm in Arm”, in 2005, was the first study to consult the Native Women's Association and the Assembly of First Nations, among other first nation stakeholders. Among its recommendations were, one, that the Native Women's Association of Canada and the Assembly of First Nations be consulted in order to draft legislation or amendments; two, that funds be provided to help first nations draft their own MPR codes; three, that legislation should not apply to first nations that draft their own codes; four, that the Canadian Human Rights Act be amended to apply on reserves; and five, it stressed that all recommendations be Canada's recognition of first nations inherent right of self-governance.

The Status of Women report, 2006, identified the barriers to the solutions proposed by MPR legislation, including insufficient funding to implement it, chronic housing shortages on reserves and lack of high-level consultation. Again, the need for consultation and funding was a recommendation.

In her ministerial representative report in 2006, Wendy Grant-John stated that no consensus had been found regarding legislation that could apply to MPR. The report recommended, among other things, that the current jurisdictional model be used where first nations law was paramount and that the government needed to identify the real costs of implementing provincial legislation on reserves.

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

In this version of the bill, a first nations own matrimonial real property law would have a lower ratification threshold. In the past bill, a majority of band members had to vote in favour of the law, 50% plus one. Now the law must be approved by a simple majority of those who have voted, with set participation of at least 25% of eligible voters.

The bill would introduce a 12-month transition period. This period would be too short to deal with many issues that need to be addressed, such as lack of housing and lack of funding to access provincial courts and lawyers.

This version of the bill would eliminate the requirements for a verification officer to approve first nations own laws on matrimonial real property.

First nations with pre-existing processes would have to re-ratify those processes, if this legislation passes, and notify the minister and the provincial attorney.

Laws based on consensus or other traditional processes would not be accepted. This goes against the treaty and inherent rights.

After hearings in the Senate, the bill was amended to extend the period of time for which an exclusive occupancy order could be made to over 90 days.

Bill S-2 is an insincere and overly simplistic attempt to rectify a complex problem brought about by the Indian Act. While there are obvious gender discrimination problems, the MPR on reserves bill, Bill S-2, would not be possible to implement because of lack of financial resources to support first nations government to actually implement the law, lack of funding for lawyers, lack of funding to account for limited geographic access to provincial courts and lack of on-reserve housing and land mass, which would be necessary to give both spouses separate homes on reserves.

According to a 2001 press release from the Native Women's Association of Canada, the problem requires a comprehensive response led by first nations and the federal government. 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 resolving of matters relating to citizenship, residency and Indian status.

According to the UN Declaration of 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 enforced Bill S-2, we would be violating article 32 of the UN declaration, which ensures free, prior and informed consent on any matter relating to the lands and the welfare of rights holders.

Finally, New Democrats will not support any MRP legislation that is not accompanied by non-legislative remedies to serious problems, including ending violence against aboriginal women, addressing the housing crisis on reserves and ending the systematic funding discrimination against first nation children.

[Michelle Rempel, Conservative, Parliamentary Secretary to the Minister of the Environment]

Mr. Speaker, earlier today we heard someone in the opposition party talk about our party being paternalistic. However, the definition of paternalistic is: behaviour by a person, organization or state that limits some persons' or groups' liberty or autonomy for their own good.

Aboriginal women do not have the right to access their marital property. That is a right that we should all be standing up for in the House. That truly is what it means to fight against paternalism in the House.

I listened to my colleague's speech and other speeches this morning about how there is a lack of support for aboriginal funding. In fact, in 2009, our government allocated over half a billion dollars for infrastructure on aboriginal reserves as well as funding in excess, I believe, of $200 million on top of annual funding.

Do we always have to be talking about what more can be done? Yes, but I simply ask my colleague this. Will he support the right of aboriginal women to have the same rights that I do standing here in the House?

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, I think that paternalistic is a perfect description of the Conservative Party.

We will support native women by not supporting the bill because it would harm them. It would not help them, but it would harm them. The bill certainly would not help native women accomplish what white women have accomplished in Canada. We have to do more for native women and if that includes more funding, then so be it.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I asked the same question when my colleague from Churchill gave her speech earlier. I think this question warrants another look.

She talked about the fact that consultations were held with aboriginal groups, or at least that is what this government claims. In a situation that should involve a nation-to-nation relationship and the right to self-determination, those consultations were completely ignored. They did not lead to any recommendations, and the Conservatives did not take any of the priorities set by aboriginal groups themselves into account.

The Assembly of First Nations, the Aboriginal Women's Summit, the Native Women's Association of Canada and aboriginal women like Ellen Gabriel, a former Quebec Native Women's Association president, have all said they do not agree with the government's approach, which involves shoving inadequate legislative measures down their throats—measures that will not help the overall situation.

I wonder if my colleague from Nickel Belt would agree that the government's consultations absolutely must culminate in the unanimous consent of first nations in order to move forward?

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, I thank the hon. member for this excellent question.

Consultation is exactly what the Supreme Court said the government must do. It must consult with first nations and reach a consensus.

The government can consult all it wants, but if it does not listen to what first nations are saying, then what is the point? A consensus cannot be reached if one merely consults, but does not listen. Both of those things need to happen. Clearly, the Conservative Party, and therefore the Government of Canada, did not do this.