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.

Sitting Resumed

[Jim Hillyer, Conservative, Lethbridge, AB]

Mr. Speaker, there are differences between the Quebec Civil Code and the common law system used in the rest of Canada. However, this problem cannot be solved with a single bill, even if it has been introduced three times. This problem has been around since the beginning of Canada's history. We have tried to address the differences between the two systems, but that is not the issue here. The real problem is that women and their children are being left homeless and out in the cold. We need to focus on this problem before we deal with the one between Quebec and the rest of Canada.

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

Mr. Speaker, it has been 25 long years that on-reserve residents, particularly aboriginal women, have been deprived of basic rights and protections simply because of where they live. This is unacceptable.

The aboriginal women, international associations and even the Manitoba NDP agree that the current situation must change and change now.

Bill S-2, the family homes on reserves and matrimonial interests or rights act, is currently the fourth iteration of this bill to come before Parliament. The bill has appeared both in the House and the Senate in a number of different forms and has been the focus of extensive consultations. It addresses the issues that were raised with its predecessors, while providing aboriginal women on reserve with the same rights that other women in Canada have.

Would my colleague provide the House with information regarding the extensive consultation process that was undertaken for this bill?

[Jim Hillyer, Conservative, Lethbridge, AB]

Mr. Speaker, my colleague answered some of the question in posing it and I answered some of it in my speech, although I did skip over a lot of the consultation process because I wanted to focus on the results. However, the process of consultation has been included. Over 103 consultation sessions were held in 76 sites across Canada with many different associations.

Furthermore, the legislation does not put an end to the ability of any of the first nations to include their own matrimonial laws, as long as they are consistent with the Constitution and the Charter of Rights of Canada.

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, I find it strange to hear my colleague talk about consultations. A number of consultations were held, but they were not about Bill S-2, at least not this version of it. A number of consultations may have been held in the past, but the Native Women's Association of Canada and the Assembly of First Nations openly voiced their complaints and said in committee that the government did not take into account the problems they raised with the bill.

I would like to know what my colleague has to say to these associations with regard to the government's lack of interest in their opinions and demands.

[Jim Hillyer, Conservative, Lethbridge, AB]

Mr. Speaker, we talk about the consultations and our system of Parliament. Every time an election is called or Parliament is prorogued, we reset the clock on all legislation. However, it does not erase the consultations conducted in the past nor our ability to refer to, think about and make wise decisions based on those.

As I said in my speech, as important as this process is, ultimately something must be done. We cannot wait until every problem is resolved, while women and children wait in the cold. This bill does not stop problems that have not been addressed from being solved in the future, but it does address a problem that is long overdue from being resolved.

[Rona Ambrose, Conservative, Minister of Public Works and Government Services and Minister for Status of Women]

Mr. Speaker, I would like to begin my remarks with the words of Betty Ann Lavallée, the national chief of the Congress of Aboriginal Peoples. She has said that Bill S-2 is:

—addressing the real human issue of an Aboriginal person, sometimes often taken for granted by other Canadians. A spouse within an Aboriginal relationship should not be denied or put out on the street alone and without any recourse because of a family or marital breakdown.

I agree with her completely. Her words are truly informed by her knowledge of the often harsh realities of the day-to-day life faced by many women residents of first nation communities.

At the end of the day, this bill is about one very simple thing, and that is equal rights.

As members know, in 1921, women in Canada were first given the right to vote in the 1921 federal election. However, that did not mean all women in Canada. In fact, aboriginal women, covered by the Indian Act, could not vote for band councils until 1951 and could not vote in federal elections until 1960.

Today, we are seeking to eliminate another unacceptable human rights issue. Through Bill S-2, we will finally be extending the same basic rights and protections to aboriginal women that all other Canadians already enjoy. I urge the opposition to stop denying aboriginal women equal rights and vote in favour of Bill S-2.

As my colleague said already, it has been over 25 years since the Supreme Court of Canada identified this legal gap that exists today on reserve and our government would finally close it with this bill. Bill S-2 proposes an effective solution to this injustice and we are proud to be the government to bring an end to it by providing women and children on reserve with legal protection.

As Minister for Status of Women, I feel strongly that the proposed legislation will provide options to women and children living on reserve who are experiencing family violence. Wives, spouses or common law partners who are living on reserve today face the reality that in the event of separation, divorce or death, the law currently does not protect their matrimonial real property interests or rights.

This is now our government's fourth attempt to pass this legislation. Clearly, as my colleague said before me, it is time to move forward with the bill.

Bill S-2, as proposed, will guarantee the matrimonial real property rights and interests of women who live on reserve and will protect spouses from violent domestic situations.

Statistics show that aboriginal women are almost three times more likely than non-aboriginal women to report being a victim of a violent crime, including spousal violence. Among victims of spousal violence, six to ten aboriginal women reported being injured. For comparison, the proportion was four in ten among non-aboriginal women.

According to the 2009 Statistics Canada “Women in Canada” report, 15% of all aboriginal women who were married or in a common law relationship had experienced spousal violence in the previous five years. In that same report, the rate among non-aboriginal women was 6%.

Nearly half of all aboriginal women who experienced spousal violence reported that they had been sexually assaulted, beaten, choked or threatened with a gun or a knife. A similar proportion reported that there were many times they feared for their lives.

This legislation is about eliminating an injustice by giving on-reserve women access to the options that are available to all other Canadian women to date. However, most important, the bill would provide emergency protection orders to aboriginal women and children who are experiencing violence in the home.

Emergency protection orders clearly save lives. They are recognized by child and family justice advocates as one, if not the most significant, means for preventing family violence.

Several witnesses before the Standing Committee on the Status of Women acknowledged the need for matrimonial real property legislation.

A member of a first nation in Ontario, Rolanda Manitowabi, described how she and her common law partner had built a home together. She invested her life savings into that home and to protect here interests, she got the band to issue her a document naming her as the owner of the property. However, when she and her partner split up, she was evicted from her home. It was at that time she found out that the document in fact had absolutely no legal foundation. Bill S-2 would change that. About the bill, she stated, “I hope it's available to help other women and children on reserves”.

Jennifer Courchene, a member of a first nation in Manitoba, also appeared before the Standing Committee on the Status of Women. Jennifer and her children became homeless after her abusive partner forced them out of their home. She said, “if there had been something [like this] to help us, we would have taken it, rather than be homeless, that's for sure”.

Aboriginal women on reserve who are not able to stay in the family home are forced to flee the reserve with their children, sometimes with nothing more than the clothes on their back, to a shelter or, even worse, somewhere homeless. Currently, a woman living on reserve who is a victim of violence has no legal protection other than pressing criminal charges. There is no mechanism to allow a parent and her children exclusive access to a family home.

I repeat the importance of using emergency protection orders to save lives. In the case of domestic violence and physical abuse, a court cannot order the spouse who holds the interest in the reserve home, which is almost always the male, to leave the home, even on a temporary basis. When a woman and her children are evicted from a family home on reserve, no judge currently has the power to intervene.

Extending the same rights that women off reserve have to aboriginal women living on reserve would address this dire situation. If emergency protection orders were enforced, abusers could be removed, allowing the women and children to find safety in the comfort of their own homes.

If aboriginal women were granted the ability to remain in the family home on reserve, they could escape situations of domestic violence, while the perpetrator was taken from the home, and they could stay to continue to care for their children and also maintain that vital access to the support in their own communities.

In addition to the protections provided by these orders, Bill S-2 would also provide for the granting of temporary exclusive occupation of the family home. This protection is important for two reasons. First, in situations of family violence, women could be granted temporary exclusive occupation of the home for a period of time extending past the emergency occupation.

Second, in the case of the death of a spouse or common law partner, the surviving spouse would be allowed to stay in the home for 180 days. During that time, the surviving spouse could apply for exclusive occupation of the family home for a period of time to be determined by the courts.

As my colleagues have said in the House many times, there has been a need for the bill for more than a quarter century. Our government has brought this issue before Parliament four times now, debating this issue in both chambers and in committee for more than 60 hours, and this includes more than 25 hours of debate on this particular iteration of the bill alone.

Yet after spending $8 million on 103 consultation sessions in 76 different communities across Canada, even after the Supreme Court of Canada has identified this legal gap and the United Nations Human Rights Council has identified this as a gap for aboriginal women in Canada, after countless reports and studies going back a quarter of a century, the opposition continues to propose that we need more talk. We have said clearly that we have had enough talk and it is time to act.

Some first nations have established matrimonial property rights, and I applaud them. However, similar legal regimes are not yet in place in hundreds of on-reserve communities across Canada. It is time that aboriginal women living on reserve shared the same rights as all other Canadian women.

As the Minister for Status of Women, I work very closely with my colleagues to address violence against aboriginal women, and we do this by supporting many projects that address this issue in a very comprehensive manner, the projects that build economic security and develop the leadership skills that prepare women to successfully escape violent domestic situations.

Since 2009, through the women's program, we have provided a great deal of funding in support of projects that helped to empower and protect aboriginal women and girls. For instance, the La Loche Friendship Centre Corporation is addressing violence against aboriginal women and girls living in northern Saskatchewan. With the support of community stakeholders—men, women, youth and elders—they will be able to better address violence faced by aboriginal women.

Actions taken by this government to end violence against women and girls include increasing funding to the women's program to its highest level in Canadian history. We have now funded more than 600 projects in Canada from coast to coast to coast since 2007.

We have also launched a comprehensive national action plan to combat human trafficking to ensure the safety and security of women and girls across Canada who are being targeted for sexual exploitation by violent traffickers.

We are moving ahead with Bill S-2, which would give aboriginal women equal rights and access to their matrimonial property rights and, most important, emergency protection orders to protect them in cases of domestic violence.

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

Mr. Speaker, I would like to thank the hon. member for her speech. She mentioned that consultations were held. It is therefore surprising that the government then introduced a bill that does not have the unanimous support of aboriginal communities.

The Native Women's Association of Canada severely criticized the bill for a number of reasons, including the lack of funding to support first nations governments and the additional obstacles this could create for first nations members who are seeking justice. The association also criticized the 12-month transition period.

The Assembly of First Nations and the national aboriginal women's summit also expressed a number of criticisms of this bill.

If the government really held consultations, why are members of aboriginal communities who truly understand the situation criticizing the bill? Why did the government not listen to them and why were these criticisms not taken into account when the current bill was drafted?

[Rona Ambrose, Conservative, Edmonton—Spruce Grove, AB]

Mr. Speaker, in fact, the proposed legislation would actually meet 30 of the 33 recommendations of the groups we work with and the ministerial representative who did a lot of the consultations across the country with aboriginal women and with a number of first nations. There are challenges with enacting a new right, if they want to look at it that way. However, that is definitely not a reason to not move forward with giving aboriginal women equal rights.

We put in place funding associated with this bill. We would provide training for all of those front-line workers, like prosecutors and others who deal with this issue, to support them. We understand the challenges of transitioning to a whole new legal framework, and we have all the means in place to ensure the training happens and those support mechanisms are in place.

Again, that is the responsible way to do this, but any challenges that face us should never be a reason not to move forward with giving aboriginal women the protection they deserve and the equal rights that all of us in Canada have and that aboriginal women are denied today.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is important that we recognize that there are numerous pieces of legislation, and this is but one of those pieces, which the government has brought in with the idea of passing through the House. On the other side, there has not been the type of consultation that has led to consensus building to try to resolve a number of issues that are there within first nations communities. It is in good part an issue of respect also, and the government has not clearly had the support of the majority of the people whom this would affect.

I wonder if the minister can provide comment. Can she incorporate Bill S-2 into this in terms of the obligation she feels to work with first nations leadership in trying to build toward consensus in bringing legislation that would ultimately pass with the support of all political entities inside the chamber, and have wider support outside the House of Commons?

[Rona Ambrose, Conservative, Edmonton—Spruce Grove, AB]

Mr. Speaker, the member knows this is the fourth iteration of the bill and that close to $10 million has been spent on consultations in 67 different communities. I could go on, and the member knows that, but as I said, those challenges should never stop us from giving aboriginal women the protection they deserve on reserve, the same protection that all of us in this room are afforded.

The member talks about respect, and I ask him to think about the respect these women deserve from Parliament. It has been more than 25 years since the Supreme Court identified a legal gap that needs to be closed. This framework would at least be, I hope, the beginning of what needs to be addressed on reserve. It is one piece of a larger issue, but it is a piece that has to be addressed. For the member to suggest we should go on and continue to deny aboriginal women this legal protection on reserve, to me, is just unconscionable.

I agree with the member that there are some chiefs who have moved forward to give women on reserve this legal protection, and I applaud them. However, there are many chiefs who are fighting this because they do not want to share property, and that is unacceptable. I, for one, will continue to advocate to ensure aboriginal women have access to the support they need to use this legislation.

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, before beginning my speech I would like to mention that I will share my time with my colleague, the member for Chambly—Borduas.

I am pleased to rise today to speak on 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.

This concerns matrimonial real property, which is the subject of this bill. At least there is some effort to resolve some problems, a certain form of discrimination against women that currently exists on reserves. This is the issue that Bill S-2 seeks to address. “Matrimonial real property” means lands and structures affixed to those lands. In this case, it would apply equally to couples in a conjugal relationship and those living common-law.

As has been mentioned, there is now a certain legal vacuum on reserves concerning matrimonial real property. This legal vacuum exists as a result of the current Constitution and the division of powers it provides for. The provinces and territories are responsible for property rights and civil rights in their respective territory. The federal government is constitutionally responsible for legislation regarding Indians and lands reserved for Indians.

Bill S-2 seeks to grant equal property rights to both spouses in a relationship. Regrettably, unlike what the government continues to say in the House, it is impossible to implement Bill S-2 as it stands. There are several reasons for this, and they have been repeatedly raised by various stakeholders who work either directly in aboriginal communities or closely with them.

Many members stood in the House and bragged about the large number of government consultations that took place before this document was produced. What they forget to mention is that there was no consultation on Bill S-2 specifically, on the most recently introduced version. There were a number of consultations that, in one way or another, broached the topic that we are discussing today—that of matrimonial real property—but aboriginal communities were not directly consulted on the content of the updated version of the bill. Off the top of my head, I believe this is the fourth or fifth version of a flawed bill that the Conservatives have been trying to pass in the House since 2008.

Certain groups and organizations were consulted in the past, and they were called before the committee to study Bill S-2. They raised the same concerns and issues that they had years before. Take a look at the testimony from the Standing Committee on the Status of Women and it becomes clear that the problems previously brought to light were not taken into consideration by the government when it wrote this bill. I am thinking, for example, about testimony from the Assembly of First Nations.

Again today I am giving a speech within the context of another time allocation motion imposed by the government.

A number of people have complained that the government did not listen to them and did not take their opinions into consideration. The government is trying to restrict our ability as members to represent the people who want their views expressed in the House and to try, once again, to amend the bill or at least ensure that it is not passed now, without the necessary consultations.

If the proposed measures in the bill are imposed, we will completely overrule the rights of first nations communities. I feel that is disrespectful.

In addition to the work of the committee and the various stakeholders who have spoken out publicly and who appeared before the committee on this matter, a number of reports drafted over the years raise the same problems that have been raised from the outset, whether it be issues with funding to implement the measures that would be set out in a bill of this nature or issues with a lack of funding to enable aboriginal women to take advantage of any new measures that may be put in place to help them.

All of these issues have already been raised many times. Unfortunately, once again, they cannot be found in the document before us today and on which we will soon have to vote. This government is staying true to the new tradition for which it is so well known and it is doing whatever it can to restrict the right of opposition members to reflect the views of the citizens they represent.

Ever since the beginning of this debate, I have heard a number of members say that it is the opposition parties that are being undemocratic and are trying their best to limit debate. I find this absolutely ridiculous. I do not know if they have had an opportunity to listen to what they are saying or to read their speeches before they give them, but when I hear comments like these, I am appalled. Every day, I am surprised at what we can hear in the House from the party in power. It is just amazing.

Earlier I was talking about the very important problems and issues raised by the Assembly of First Nations. It has determined that three main principles are key to addressing matrimonial interests or rights on reserves.

The first of these three principles is the recognition of first nations jurisdiction. The government did not consult or even ask for their opinion or their support for Bill S-2, which is currently before us, so I find it rather odd to even think that we might be able to recognize their jurisdiction and respect their fundamental rights. In any case, when the government asks for their support or their opinion, it is not taken into consideration at all. I think this is one of the major problems we have with recognizing the first principle identified by the Assembly of First Nations.

The second principle is access to justice, dispute resolution and remedies. Here again, there is a chronic lack of funding for certain communities. I am thinking of the northern communities that are far from major centres, which will now have to appeal to the provincial courts more regularly, without necessarily having the financial resources to get there and exercise their rights.

Finally, the third principle identified is to address underlying issues, such as access to housing and economic security. I am also thinking of access to safe drinking water, another major issue that the House will soon have to deal with and take concrete action to resolve.

Coming back to this principle, we see that on reserves there are still many issues that prevent the full implementation of the measures in Bill S-2. These measures would make it possible to protect women on reserves who are unfortunately experiencing family violence.

Other problems noted by the NDP prevent it from supporting this bill. First, the bill includes a one-year transitional period to allow first nation communities to enact new laws. This one-year period is too short for many communities that want to resolve a number of outstanding issues that are not being addressed here.

Quebec is a prime example of some of the problems this bill will create. According to lawyer David Schulze, Bill S-2 overlooks the specificities of Quebec. Under the Civil Code, common-law partners do not have property rights, but they would under Bill S-2. For example, a first nations member would have rights to his Innu spouse's home on the Uashat reserve, but she would have no rights to his home across the street in Sept-Îles.

Clearly the bill does not exactly resolve the problems of discrimination that the women are experiencing when it comes to matrimonial real property.

We still have a lot of work to do to ensure that their rights are respected. That is why the NDP will continue to oppose Bill S-2, which does nothing tangible to give first nations women the help they really need.

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

Mr. Speaker, I would like to thank the hon. member for Portneuf—Jacques-Cartier for her excellent speech. I wanted to ask her more or less the same question that I just asked the Minister for Status of Women, who did not provide a specific answer to my question regarding the consultations.

Many aboriginal groups, such as the Assembly of First Nations, the Native Women's Association of Canada and the national aboriginal women's summit, have been very critical of the Conservative government's consultation process and the manner in which it passes bills.

Had the government held serious and effective consultations and had it listened to and respected what aboriginal stakeholders had to say, would we still be dealing with the bill in its current form?

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, I thank my colleague for his excellent question.

In my opinion, the bill would be altogether different. Quebec Native Women is another group that opposes the current version of the bill. This group, which the government is trying to protect, clearly said:

...Bill S-2 in its current form does not meet all the concerns expressed repeatedly to the government by FAQ, particularly with respect to access to justice and capacity building of our governments and communities.

It is very clear: women who should usually feel that the government provides them with the means to stand up for themselves are telling us, their representatives, that this is not the case. Bill S-2 does not meet their needs and does not really give them access to all the legal avenues that they should have. Unfortunately, this bill does not contain any measures to address the systemic violence experienced by women in their communities.

Had the government truly considered their proposals, briefs and testimony, it would have introduced a completely different and much more effective bill.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, given the fact that many first nations across Canada are watching how this debate is evolving, there is a great deal of frustration and a sense that the government did not go out of its way whatsoever to have legitimate, genuine consultation even though court rulings have directed the government to work with first nations.

My question is related to what the member started to talk about: the idea of the government bringing in time allocation on the bill, which is adding insult to injury. Could the member provide a perspective as to how that will be received by our first nations communities?

[Élaine Michaud, NDP, Portneuf—Jacques-Cartier, QC]

Mr. Speaker, I thank my colleague for his question, which is similar to that of my colleague from Sherbrooke and which will allow me to speak more about the lack of respect for democracy that this government shows on a daily basis.

This is even more obvious now that we are approaching the end of the session. There are two or even three time allocation motions every day. Every time, we have to fight for our right to speak, a right stemming from our mandate.

I sincerely believe that first nations communities will be very disappointed with the government's attitude, which is once again reflected in the way in which the Minister of Aboriginal Affairs and Northern Development manages his file and speaks with first nations groups.

How he manages the file is symptomatic of how this government manages all issues that affect first nations. It does not consult very much, it does not really focus on coming up with real solutions to first nations' problems and it does not even address systemic problems. I have the feeling that the communities will be very disappointed with the results of the study of today's bill.