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.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Madam Chair.

Thank you to both Minister Ambrose and Minister Valcourt for being here today and speaking on Bill S-2. I know that both of you feel very strongly about this particular piece of legislation, as I do.

This past weekend I spoke to my husband about this very bill. I spoke about the current situation facing aboriginal women on reserves and what this legislation will mean to every one of those women.

Minister Valcourt, I know that in your opening remarks, you talked about this day and age—and my husband said exactly the same thing. He looked at me as if I were speaking a foreign language. He could not believe that in this day and age, in Canada, aboriginal women on reserves do not have the same interest and access to matrimonial property as does every person in this room today. He was shocked. I have to be honest, and I apologize for getting emotional, but as a member of the Standing Committee on the Status of Women, this is a priority. We have to pass this legislation

Minister Ambrose, I know that one of the things you said in your opening remarks is that you considered the most important aspect of this bill to be the access to emergency protection orders and temporary exclusive occupation orders. I agree with you on that. I think it's paramount. I think we need to protect women and we need to make it happen now—not in another year, not in another two years. We need to pass this legislation now.

I'll be honest with you, before I became a member of Parliament, before I read this bill, and before I understood the breadth of what this would mean to aboriginal women, I had no idea there was an issue of such inequality on reserves and this legislative gap. I was shocked. I think most Canadian listening to this committee today would be shocked and surprised to hear of this legislative gap. I think they're standing behind this government to make sure this legislation goes through.

Minister Ambrose, this question has to do with the protection of a violent spouse in one's own home, which is currently not extended to aboriginal women on reserves.

If someone were to break into one's home right now—hopefully not in my riding of Scarborough Centre or in any riding across this country—and became violent or abusive, the police would be called and that person would be removed. That's a given, and no one would question that.

When a spouse becomes violent and abusive, they should be the ones removed from the family home, not the victim of violence. Yet on reserves, the opposite is true today. I think Canadians need to understand that, and know this bill is going to protect those women. In cases where the need for protection is extended and where children are involved, having extended access to the family home is crucial.

Bill S-2, in addition to providing access to emergency protection orders, also allows the courts to take these factors into consideration and provide extended, exclusive occupation access to the family home. This is paramount. We need this legislation.

Minister Ambrose, could you speak in more detail to the need for emergency protection orders on reserves and the need for access to temporary exclusive occupation orders? I know you did in your opening remarks.

Thank you.

[Niki Ashton, NDP, Churchill, MB]

Thank you, Ministers, for joining us today.

We recognize there is a legislative gap that is important to address—no question about that. But we have real problems with the lack of consultation, the lack of respect for first nations jurisdiction. We've worked closely with the Native Women's Association of Canada and the Assembly of First Nations, who have expressed real concern about this piece of legislation, and of course with first nations across the country, who also oppose this legislation.

To both Minister Valcourt and Minister Ambrose, did you consult with all first nations across Canada around Bill S-2?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

The Supreme Court is bound by the law of the land and the Constitution is clear as to the allocation of powers between the federal and provincial governments.

In terms of what this legislation does, and it is important that the committee consider this, there are two sides to it. The first is that there are provisional rules that will apply throughout first nation communities, but they are provisional until the first nation itself adopts its own laws, which they can. The reality of first nations in Canada is that they are different; they have different cultures and different customs. Now with this bill those who choose to do so will be able to draft and pass their own laws, which will be endorsed and approved by the community, and then be applicable on reserve.

This is why I said earlier that this is not at all paternalistic. This is giving the first nation communities the powers to adopt laws that will deal with the very issue at the heart of Bill S-2. For those who don't, then the federal rules will apply. We know that this will not happen overnight. That's why we have this one-year period from the day the bill receives royal assent. For one year nothing will happen. The first nations who want to adopt their own laws during that year will be able to do so. They will come into force one year after royal assent, just like the provisional federal rules will. At that time, either the federal law applies or the local community law applies.

I think it's a practical approach to a difficult problem in terms of implementation. What you also have to know is that the centre of excellence, which will be set up after royal assent is given to the bill, will help first nations in developing these laws for their own communities.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

As was alluded to earlier, since the Supreme Court of Canada rendered those decisions 25 years ago, the impact and the effect of those decisions was that the court made it clear that the provincial and territorial matrimonial property laws that aboriginal spouses living on reserve had attempted to use in the past, and had benefited from on occasion, did not apply to aboriginal people living on reserve. So first nation communities that are reserves under the Indian Act do not get the benefit, and that's the gap that Bill S-2 is trying to fill.

This government has been at it now for a number of years, and we believe it's time that the gap be filled.

[Rona Ambrose, Conservative, Minister for Status of Women]

Thank you, Madam Chair.

Thank you to the committee for your work on this matter and the opportunity to participate in the committee's review of Bill S-2.

As Minister for Status of Women, I feel strongly that this 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 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.

As Minister Valcourt indicated, it's been over 25 years since the Supreme Court of Canada identified this shocking legal gap. This is now our government's fourth attempt to pass this legislation.

Our government is committed to ending violence against women and girls in communities across Canada, and this legislation is part of that process. We are taking action to protect those who are most vulnerable in Canadian society—women in immigrant communities, women living in poverty, and aboriginal women and girls—through essential women's projects, but also through legislation like Bill S-2.

Bill S-2, which you know as the family homes on reserves and matrimonial interests or rights act, will guarantee the matrimonial real property rights and interests of women who live on reserve, and will protect spouses from violent domestic situations.

Most Canadians do not know that aboriginal women on reserve do not share the same basic right to property as women who live off reserve. This legal gap has led to the suffering of countless aboriginal women. Their suffering makes it clear why we need this bill to be passed by Parliament this spring. These women have waited long enough. I urge all parties to vote in favour of this bill.

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. In 2009, close to two-thirds of aboriginal female victims were aged 15 to 34. This age group accounted for just under half of the total female aboriginal population over the age of 15 who were living in 10 provinces. Among victims of spousal violence, 6 in 10 aboriginal women reported being injured. For comparison, the proportion was 4 in 10 among non-aboriginal women.

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

Our government has taken several actions to eliminate violence against women and girls. Since 2007, we've invested over $11 million in funding for projects specifically to end violence against aboriginal women and girls, and $19 million in the same timeframe on projects to empower and protect aboriginal women and girls.

Our government proposes to close this rights gap in the matrimonial property rights law, once and for all, with the passing of this act. This legislation is about eliminating an injustice by giving on-reserve women, including the victims of violence, access to the options that are available to other Canadian women.

I'm particularly pleased, and I know all of you would be interested, that this bill will provide emergency protection orders to aboriginal women and children who are abused. Emergency protection orders save lives. They are recognized by child and family justice advocates as one of the most significant means for preventing family violence.

Sadly, as I mentioned, we know that aboriginal women are more likely to experience spousal violence when compared to non-aboriginal women. 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.

As it stands today, a woman living on a 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 children exclusive access to a family home. Again, I repeat, emergency protection orders 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 usually the male partner, 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 will address this dire situation. For women in the rest of Canada who are not living in this situation, when faced with family violence, the situation is much different.

When emergency protection orders are enforced, as you know very well, abusers can be removed, allowing the women and children to find safety in the comfort of their own family home. If aboriginal women are granted the ability to remain in the family home on reserve, they can escape situations of domestic violence while continuing to care for their children and maintaining vital access to the support of their community. Again, importantly, emergency protection orders save lives.

In addition to the protections provided by these orders, Bill S-2 also provides for the granting of temporary exclusive occupation of the family home. This protection is twofold. First, in situations of family violence, women can 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 is allowed to stay in the home for 180 days. During that time the surviving spouse may apply for exclusive occupation of the family home for a period of time to be determined by the courts.

There has been a need for this bill for a quarter of a century. Our government has brought this issue before Parliament four times now, debating this issue in both chambers and in committee now for over 50 hours. This includes more than 15 hours of debate on this particular bill alone. Yet, after spending $8 million on 103 consultation sessions, as Minister Valcourt spoke to, in 76 different communities across Canada, and after countless reports and studies going back a quarter of a century, the opposition is proposing more talk. But we say it is time to move forward.

We say it is time that aboriginal women living on reserve share the same rights as all other Canadian women, and this committee has the power to do exactly that. Members of this committee in particular have first-hand knowledge of the nature and extent of the problem, having recently studied the issue of violence against aboriginal women. You have heard the stories from aboriginal women and are aware of the factors that contribute to violence in their lives. This committee has a special understanding of what is at stake here.

As the Minister for Status of Women, I sought to address violence against aboriginal women by supporting many projects that address violence in a comprehensive manner and building economic security and developing the leadership skills that prepare women to successfully escape violent domestic situations.

As I mentioned earlier, since 2007, through the women's program, we have provided funding of more than $90 million in support of projects that help to empower and protect aboriginal women and girls. For instance, in the Yukon, the Liard Aboriginal Women's Society is helping aboriginal women transition to violence-free lives by building relationships between aboriginal women, law enforcement officials, and local service providers. These often-neglected relationships between aboriginal women and service providers can make the difference between service providers or law enforcement officers overlooking or recognizing a violent domestic situation.

Similar work is also being done to prepare law enforcement officers at the community level through the development of protocols, law enforcement orientation documents, and community safety action plans.

Our government is also supporting women who have been victims of violence through projects like that of the Creating Hope Society in Alberta. Their projects specifically support first nations women and girls living on reserves within the Edmonton city limits who have experienced violence by engaging first nations groups, service providers, and women and girls themselves.

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, funding over 600 projects now in Canada since 2007, and launching 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've also developed a five-year national strategy aimed at enhancing the response of law enforcement and the justice system to cases of missing and murdered aboriginal women and girls by supporting culturally appropriate victim services and, of course, Bill S-2, which will give aboriginal women equal rights and access to their matrimonial property rights and emergency protection orders in cases of domestic violence.

In conclusion, Madam Chair, let me reiterate that this legislation is about eliminating an injustice. It's about closing a legal gap that creates inequality and leaves aboriginal women vulnerable. It's about ensuring that all Canadians, whether they live on or off reserve, have similar protections and rights when it comes to family homes, matrimonial interests, safety, and security.

In the course of your committee's deliberations on this bill I urge members to consider the previous testimony—of which there has been quite a bit by aboriginal women and leaders across Canada—of Betty Ann Lavallée, in particular, national chief of the Congress of Aboriginal Peoples. She said about Bill S-2:

The bill 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 completely with her statement. Her words are informed by her knowledge of the often-harsh realities of day-to-day life faced by many female residents of first nation communities.

At the end of the day, Bill S-2 is about taking action also. It's been over 25 years since the Supreme Court of Canada identified this legal gap, and our government is closing this gap with this bill. Bill S-2 proposes an effective solution to this injustice and we hope that members on all sides of the House will support this initiative moving forward.

Thank you, Madam Chair.

[Bernard Valcourt, Conservative, Minister of Aboriginal Affairs and Northern Development]

Thank you very much, Madam Chair.

Thank you for the opportunity to address the committee during its review of 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.

I am proud to be here today, with my colleague the Honourable Rona Ambrose, Minister for the Status of Women, to talk about the steps our government is taking to improve the rights of families living on reserves.

I will start by asking all of my parliamentary colleagues and Madam Chair to allow me to first express my consternation and incredulity at the arguments I have heard in opposition to Bill S-2.

If I may also characterize this opposition, what I have heard from the opposition party's spokesperson in the House at second reading was a dressing up of the bill with a lot of the concerns that we all share about the situation of too many first nations in this country. Whether it be housing, water, access to roads, access to electricity, access to legal services, or the health of first nation community members, the suicide rate on reserves, or access to education and employment opportunities, these are all concerns that we share, but they have been raised in the course of the debate as reason to object to the enactment of Bill S-2 as law in this country.

Why oppose a bill about family homes on reserves and matrimonial interests and the bill's remedial provisions because this legislation does not address other concerns? Bill S-2 is not about housing, it's not about water, it's not about access to roads or access to electricity, water, or to legal services, or the specific health problems that first nation members suffer from.

This bill is about the rights of married or common-law couples living on reserve in the event of breakup of their relationship, or at their death. It's about an equitable division of the family assets and, in the case of violent and abusive relationships, protecting the spouse, the child and the children, if any, by allowing the court to grant an individual spouse exclusive occupation right to the family home.

After you undress the bill of the concerns expressed, which the bill is not aimed at, and address it for what it really is, you end up with the pure, simple question of the equality of the status of couples and families on reserve in case of conjugal relationships breaking down so their treatment will be comparable to that of other Canadian couples not living on reserve.

Many Canadians are not aware, for example, that in the absence of legislation like Bill S-2, a spouse who holds the interest in an on-reserve family home can, on his or her own, sell that home without the consent of the other spouse and can keep all the money. Or, that spouse who holds the interest in the family home can bar the other spouse from their home on reserve, without regard to the welfare of the spouse and the child or children, if any. Or, in the event of domestic violence or abuse, a court in this country cannot order the right of exclusive occupation of the family home to the spouse who holds the interest in the on-reserve family home, even on a temporary basis.

These rights are available to all other Canadians not living on reserve, whether they are aboriginal people or not. It is simply unacceptable, I submit to you with respect, that in this day and age, people living on reserve are not afforded the same rights and protections as those living off reserve. Individuals living on reserve should not be penalized simply because of where they live.

Yet for more than 25 years, since the 1986 Supreme Court decisions in two particular cases, Paul v. Paul and Derrickson v. Derrickson, aboriginal women and children living on reserve have had no rights to matrimonial real property. For them, the breakdown of a relationship or the death of a spouse or common-law partner can mean insecurity, financial difficulties, or homelessness.

When the members of the Standing Senate Committee on Human Rights studied Bill S-2, they heard first-hand from courageous individuals who came forward to tell their stories about how they have personally suffered the consequences of the lack of legislation governing matrimonial real property on reserves.

Bill S-2 responds to calls for action not only from aboriginal women, but also from international organizations and parliamentary committees. Even Manitoba's NDP government understands the urgency of the situation. At the Legislative Assembly of Manitoba's request, the assembly's clerk informed me that the they had unanimously adopted a motion urging Canada's government and Parliament to pass Bill S-2.

The bill—which I heard in the House—is neither paternalistic nor dictating to first nations. However, I submit that not passing it would be.

Under the proposed legislation, first nations can either choose to enact their own laws related to matrimonial real property rights and interests—laws designed to meet their particular needs and respect their particular customs and culture—or choose to follow federal rules.

By empowering first nations to develop their own laws in this area, Bill S-2 respects the diversity among first nations. They can adopt community-specific laws that may offer different and effective means—from the first nations' perspective—of addressing matrimonial real property issues on their respective reserve lands.

The proposed legislation would also ensure that, until such a time as a first nation is able to create its own laws, federal rules would provide families with the rights and protections they seek and deserve, just like all non-aboriginal citizens and aboriginals living off-reserve.

As a result, all men, women and children living on reserves will have equal rights related to the occupancy, transfer or sale of the family home that were not previously guaranteed to first nation members living on reserves.

More importantly, in situations of family violence, a spouse could now apply, with the benefit of this act, for an emergency order to stay in the family home at the exclusion of the other spouse, for a period of up to 90 days, with the possibility of extension. These provisions will allow victimized spouses or common-law partners in abusive relationships to ask for exclusive occupation of the family home for a specified period of time, providing victims and their dependants with a place to stay.

We have committed, as you all know, to the creation of an arm's length centre of excellence for matrimonial real property, which will assist first nations in the development of their own on-reserve matrimonial real property laws or in the application of the federal provisional rules.

Madam Chair, our government has undertaken an extensive two-year consultation process that included over 100 meetings at 76 sites across Canada. We have had ample opportunity to review, discuss, and debate the bill since it was introduced in 2008.

Time is flying, so I will allow my colleague Minister Ambrose to get in her 10 minutes also.

Thank you.

Opposition Motion--First Nations, Métis and Inuit

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, both today and yesterday we have heard a lot about Bill S-2, dealing with the issue of marriage breakdown and the rights of both partners. It is important to recognize that a big part of that has been the requirement of the government to work with first nations and leaders in terms of developing legislation. As opposed to doing that, it has taken a piece of legislation from a specific area and brought it into the House without doing its work. As a result, there is a great deal of resistance on an issue that I would argue there would be wonderful support for and very strong leadership on, even from the first nations.

What is upsetting a number of people is the way in which the government feels it can bring in legislation without working with first nations leaders. At the end of the day, if the government really wants to deal with many of the outstanding first nations issues, it has to recognize there is not only a legal obligation but many would argue a moral obligation to be working with first nations and aboriginal leaders in order to resolve these matters. If the government did that, we would be ahead in terms of making our communities a better place to live.

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

moved:

That this House call on the government to: (a) abandon its confrontational approach to First Nations, Métis and Inuit in favour of a nation-to-nation dialogue; (b) make treaty implementation, as well as the settlement and implementation of land claims, a priority, including in Labrador; and (c) begin negotiations in good faith with NunatuKavut Community Council on their comprehensive land claim that has been without a response since 1991.

Mr. Speaker, I am very pleased to rise on behalf of New Democrats on this important motion before the House. I will be sharing my time with the member for Manicouagan.

New Democrats have put forward this motion today because of what we have been seeing over the last many years, actually for decades, particularly under the current government, which is that first nations, Metis, and Inuit continue to have their rights overridden by the government in any number of ways.

We have seen unilateral impositions of legislation, evidenced most recently by the fact that debate was once against shut down on Bill S-2, matrimonial real property rights. For the 31st time, the government has invoked time allocation.

One of the reasons we are bringing this forward is the context in which we are operating, but I want to put it in the context of some international documents. The UN Declaration on the Rights of Indigenous Peoples, article 10 says:

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

That seems a very appropriate section of the UN declaration when we are talking about land claims. Treaties, comprehensive land claims, self-government agreements are now part of the Canadian landscape, and unfortunately, from coast to coast to coast, we have far too many examples where the government has simply refused to move forward in negotiating in good faith.

In case Canadians think that this is something new that the government should have some responsibility to take part in, I want to refer to the Royal Commission on Aboriginal Peoples where it refers to the 1763 Proclamation. The proclamation portrays aboriginal nations as autonomous political units. It goes on to say that aboriginal nations hold inherent authority over their internal affairs and the power to deal with the Crown by way of treaty and agreement. It also says that land concession is thus to be effected by mutual agreement or treaty.

One would think that a document from 1763 would actually continue to help shape and inform government policy, but sadly, in this country, nations have been forced to the courts to try to get the government to come to the table in good faith. We have any number of court decisions that continue to reaffirm indigenous rights and title. I cannot go through them all, because apparently there are about 180 of them, but there are some very key ones.

In the Calder decision in 1973, this was the first time that courts acknowledged that aboriginal title to the land had existed, and that this significant case would pave the way for addressing aboriginal title in Canada.

In Guerin, 1984, it established that aboriginal title was a sui generis right and the Crown had a fiduciary duty to protect it for aboriginal peoples.

In Van der Peet, 1996, there was established a set of criteria to determine whether an aboriginal right was protected as an existing aboriginal right under the Canadian Constitution, and just recently we had the Daniels decision that said all aboriginal peoples in Canada, including Metis and non-status Indians, are included in federal jurisdiction under 91(24) of the Constitution.

We have also had some provincial court decisions that continue to reaffirm rights and title and the duty to consult. We had the decision in December 12, 2007, where the Newfoundland and Labrador Court of Appeal delivered its decision in Newfoundland and Labrador v. the Labrador Metis Nation, and the Labrador Metis Nation is now known as NunatuKavut.

This was a unanimous decision and the court upheld that the province has a duty to consult the respondents in respect of their asserted aboriginal rights.

Why is this important? We have first peoples in this country who have been here for millennia. They are the people who lived on this land when the settlers came. I will talk a little bit about who the people of NunatuKavut are. NunatuKavut, from their website, says:

Our Aboriginal ancestors lived in Labrador long before Europeans set foot on North American soil. The land was part of them, and they were part of the land.

For Canadians who are listening, these communities line the southern coastal interior waterways of Labrador. They go on to say:

We are the more than 6,000 southern Inuit of Labrador. We are proud of who we are and what we've accomplished. Our rights are protected and enshrined in the Constitution of Canada. No one can take them from us. Our traditions resonate with the ways of our elders. Our respect for the environment, the sharing of our harvest, our knowledge of traditional medicines and practices, and our care for each other can be traced directly to our Aboriginal heritage.

It is very important that what we have here is, from coast to coast to coast, government refusal to respect the honour of the Crown and its judiciary responsibilities, and to respect Section 35 of the Constitution, which protects aboriginal rights and title. This series of court decisions continues to reinforce that duty for Canada to come to the table and negotiate in good faith.

Here is the reality. From coast to coast to coast, aboriginal peoples are being forced to take action to enforce their rights and title as the government refuses to negotiate or honour its duty to consult and accommodate.

On the east coast, we have seen hunger strikes, blockades, and arrests. The NunatuKavut submitted a land claim for consideration back in 1991. To date, this claim has not been accepted for negotiation. I would like to say that this is an isolated case. However, again, what we see from coast to coast to coast is that there are nations that have been in negotiations with the government for decades. The government simply refuses to act in good faith.

I had one elder who said to me that 70 years ago, when he was only nine years old, he sat at the knee of his grandfather. Here we are, 70 years later and his nation still does not have a treaty or a comprehensive land claim. It is shameful that we continue to have to have this conversation when we have such deep roots in our Constitution, in court decisions, in the royal proclamation that say that rights and title were reaffirmed and that the government does have a responsibility to protect and to negotiate.

We do not only have the NunatuKavut, who submitted their land claim in 1991. We heard just yesterday that the Innu will be shutting down Muskrat Falls because of the fact that racism continues in this country and their rights and title are not being recognized. Meanwhile, development continues and the NunatuKavummiut are watching it happen. They have not been consulted and accommodated. As I mentioned earlier, these are people with a very long history in what is now known as Labrador.

On the east coast, we have had this situation since 1991 where the government refuses to go ahead and negotiate the claim that was submitted in good faith by the NunatuKavummiut. On the west coast, we also have the Hul'qumi'num Treaty Group being forced to take its case to the human rights commission of the Organization of American States. We have domestic court decisions that continue to reaffirm rights and title, but now we also have to go internationally because we cannot get the government to the table.

The Hul'qumi'num Treaty Group has a case before the Inter-American Commission on Human Rights concerning the 1884 expropriation of over 237 hectares of resource-rich land from the traditional territories of the Hul'qumi'num peoples on Vancouver Island. The Hul'qumi'num Treaty Group alleges that Canada has violated international human rights norms by refusing to negotiate for any form of redress for the expropriated lands, which are now mostly in the hands of large forestry companies, and by failing to protect Hul'qumi'num interests while the dispute remains unresolved. They go on to say that in agreeing to hear the complaint, the Inter-American Commission on Human Rights ruled that the available mechanisms to resolve this dispute in Canada, whether through the negotiation or the B.C. treaty process, are too onerous and too constrained in their protection of human rights to live up to the standards of international justice.

Grand Chief Matthew Coon Come from the Grand Council of the Crees said:

Fair and timely resolution of land and resource disputes is essential for reconciliation of Indigenous and non-Indigenous peoples in Canada and for closing the unacceptable gap in standard of living facing so many Indigenous communities.

We can see that indigenous peoples in Canada are being failed consistently by the government, despite the fact that we have numerous court decisions that reaffirm the right to their lands and their right to the sharing of resources that are being developed on these lands.

I encourage all members to support this very important motion.

Business of the House

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

Mr. Speaker, the opposition House leader expressed concern that the scheduling of several opposition days, on which the opposition gets to determine the subject matter of debate in the House of Commons, showed a complete absence of a plan and a complete absence of any ideas for policy innovation. Having heard the debate and the resolutions coming from the opposition for debate on those days, I am inclined to agree with him.

Sadly, they have shown that when the opposition has the agenda, there are no new ideas and there is nothing of value spoken. However, the Standing Orders do require us to have those opposition days scheduled as part of our procedure, and that is what we are doing.

I would like, however, to respond a little bit to his comments on the time allocation on the bill yesterday. Yesterday's bill was Bill S-2, a bill to give aboriginal women and their children on reserve the same matrimonial rights that other people have. It is a bill that has been in Parliament for five years, through a series of Parliaments, in fact, and it has not yet come to a vote. To paraphrase the President of the United States in the recent State of the Union address, the aboriginal women and children of Canada deserve the right to a vote. That is why we did what we had to do, after five years of obstruction from the opposition preventing the bill from coming forward.

The bill would provide the protection they have been denied for decades. It is truly shameful that, starting with the Leader of the Opposition, every single opposition member stood up against this bill at second reading. They voted against the principle of protecting aboriginal women and children and providing them with rights equal to those of all Canadian women off reserve. They voted against giving them protection from violence in the situation of a domestic family breakdown and giving them the same rights to matrimonial homes that other women have had for decades in this country.

It is another example of how the NDP approaches things. It claims that it is for women's rights and aboriginal rights, but when it comes time to actually take action, it does not. It is “do as I say, not as I do”.

This afternoon we will continue the New Democrats' opposition day. Tomorrow is the fourth allotted day, when the New Democrats will again propose our topic for debate. Monday shall be the fifth allotted day, which will see a Liberal motion debated. Tuesday shall be the sixth allotted day, with a further New Democratic motion being considered.

Next week is victims week in Canada, so on Wednesday, the House will continue the second reading debate on Bill C-54, the not criminally responsible reform act, which aims to put the protection of society and of victims front and centre.

On Thursday morning we will consider Bill C-48, the technical tax amendments act, 2012, at report stage. After question period on Thursday, we will start report stage for Bill C-52, the fair rail freight service act, which was reported back from the transport committee this morning.

Finally, next Friday, Bill C-15, the strengthening military justice in the defence of Canada act, will be again considered at report stage.

[Jody Wilson-Raybould]

Thank you for the question.

This is a fairly complicated area of law which first nations have considered over years and decades. The complication arises in imposing the transfer of jurisdiction or authority from the federal government to the provincial government. While that may be a decision that a first nation makes, imposing it creates tremendous challenges, in that to isolate a specific jurisdiction, such as wills and estates, does exactly that: it isolates it from the important matters that first nations have also considered and that must be considered together, involving their laws over land and how they deal with non-members on their reserve lands and how land is held and transferred. Issues such as matrimonial real property which is contained in Bill S-2, come into play here as well and certainly can't be considered in isolation.

The impact of transferring this jurisdiction to the provinces creates a challenge for enforcement of provincial jurisdiction or of a provision that does not address the reality of how the land is still held on reserve under federal jurisdiction. It brings up the interjurisdictional wrangling that will have to be resolved, on top of the challenge we have that there isn't any clearly defined way for first nations to do this under the Indian Act right now and the challenges that this creates.

There are additional challenges in terms of access to appropriate persons, whether they be lawyers or others, to assist in wills and estate areas. There is an added challenge of getting access to adjudication around those challenges as well.

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Gordon O'Connor, Conservative, Carleton—Mississippi Mills, ON]

Mr. Speaker, for Bill S-2, the previous question, I believe that the member for Bruce—Grey—Owen Sound arrived after the question had been read. I do not think his vote should have been recorded.

Second Reading

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Mr. Speaker, I was talking about the consultations in 2010. The Standing Senate Committee on Human Rights studied an earlier version of the bill. The committee heard from more than 30 witnesses and adopted 12 amendments to improve the bill and reflect the input and comments received from stakeholders, including first nations and provinces. That version of the bill died on the order paper with the dissolution of Parliament, it but serves as an example of how previous studies and testimony have strengthened the legislation now before us.

In 2011, Bill S-2, the current iteration of the legislation, was introduced. It included not only the 12 amendments but also three additional changes that were suggested and made to the bill.

Therefore, I would say that we have spent enough time on it. This is the time for action. Let us pass this bill.

[Bernard Valcourt, Conservative, Minister of Aboriginal Affairs and Northern Development]

Mr. Speaker, I am indeed pleased to speak today in support of Bill S-2, the family homes on reserves and matrimonial interests or rights act.

Let me start by affirming and stating quite clearly that it is completely unacceptable that men, women and children living on reserve have for decades been deprived of the same basic rights and protections afforded Canadians living off reserve simply because of where they live.

Through this legislation, our government is addressing a long-standing legislative gap and ensuring that women, children and families on reserve can live in safe, stable home environments. I believe that the bill offers a practical, balanced and much needed solution that I wish to insist has been informed by national consultations with stakeholders, numerous reports, in-depth analysis and reasoned debate. I say now is the time for action.

I cannot emphasize enough the urgency of the issues that Bill S-2 proposes to resolve. Every day that passes until a solution is in place is one more day that women and children living on reserve do not have access to the same protections offered those living off reserve. Without the rights to matrimonial real property that other Canadians enjoy, more and more individuals and families, primarily aboriginal women and children living on reserve, are left defenceless, and in many cases, homeless and destitute. They are ostracized from the only community they have ever known and are forced to start life all over again elsewhere.

Bill S-2 offers an effective solution that would provide individuals with the rights and protections they need to ensure that they have access to the family home no matter which spouse is listed as the owner. The effect that the absence of legislation has on the lives on many individuals and families is a compelling reason for the members of the House to acknowledge the urgency of the situation and to pass Bill S-2.

Currently, and no one can dispute that, there is no law in place addressing matters related to on-reserve matrimonial real property and interests.

More than 25 years ago, two Supreme Court of Canada rulings clarified that provincial laws pertaining to matrimonial real property rights and interests do not apply in first nation communities. Given that no equivalent federal law exists, these interests and rights are not protected for individuals living on reserve in the event of a breakdown of a conjugal relationship or the death of a spouse or a common-law partner. This situation is unacceptable and should make endorsing Bill S-2 a top priority for the House.

Individuals who live off reserve have access to the protections and legal recourse set out in the provincial or territorial laws. However, individuals living in first nations communities, with few exceptions, do not benefit from such protections. No judge, police officer or court representative is authorized to intervene if someone throws his or her spouse out of the house or sells the family home and keeps all the proceeds from that sale. In other words, our justice system is not currently in a position to be able to end the harmful discrimination faced by an identifiable group of Canadians.

Canadians should not tolerate this fundamental injustice. The fact that this has been going on for 25 years is shameful.

It is true that a small number of first nations have developed laws pertaining to matrimonial rights and interests under the First Nations Land Management Act or self-government agreements. However, these options are not currently available to most first nations. As a result, over 100,000 Canadians do not have any legal protection in this regard. This has been harmful to many people, families and communities. These injustices have a negative impact on the lives of all Canadians, without exception. The only way to move forward is to enact an effective legislative solution, which is what Bill S-2 seeks to do.

Earlier, I heard the member opposite going on about consultations. Bill S-2 is based on extensive national consultations and Parliament's study of this issue. This work produced a wealth of high-quality information in the form of reports, studies, testimony and analyses. Bill S-2 is the result of all these contributions and analyses. The facts show that previous attempts strengthened the bill—

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Speaker, today I rise to speak to the piece of legislation before us, Bill S-2. This bill marks the fourth attempt by the government to address a serious problem in the first nations community, a problem created by the Indian Act itself. Sadly, like the first three attempts taken by the government, it simply misses the mark.

Bill S-2 is a very simplistic attempt to rectify a very complex problem that stems from the Indian Act.

On reserves, gender discrimination clearly exists when it comes to matrimonial real property. However, Bill S-2 will be impossible to implement for the following reasons: a lack of financial resources to support first nations governments to actually implement the law; a lack of funding for lawyers and legal advice; a lack of funding to account for limited geographic access to provincial courts; a lack of on-reserve housing; and a lack of land mass that would be necessary to give both spouses separate homes on reserves.

There are no measures in the legislation to address the systemic problem of violence that faces so many women and that leads to divorce. According to Statistics Canada, first nations women are 3.5 times more likely to be victims of violence than non-aboriginal women, and 35% of aboriginal women have already been victims of violence.

Overcrowded housing has been linked to a number of health and social problems, including higher rates of respiratory infections as well as mental health and domestic violence problems.

In 2006, 14% of aboriginal women and girls were living in overcrowded housing—a proportion three times higher than among non-aboriginal women. On reserves, 26% of women and girls were living in overcrowded conditions, compared to 6% of those living off-reserve.

All the statistics I have just read into the record show that we have a serious problem before us. Those problems require a serious, well-thought-out solution. That is not what the Conservatives have brought before us today. They are once again fast-tracking legislation without addressing all of the relevant non-legislative problems first nations women and families have identified. They are showing that they are not interested in a fulsome discussion of this bill or any other issue affecting the indigenous peoples of this land. I am left with the strong impression that all they want is to quickly enact a bad law, just to say that they have done something.

The problems we are facing require a comprehensive response that is led by first nations communities first and foremost. The Conservatives did do some consulting with first nations and the Native Women's Association of Canada, but then in typical Conservative style, they ignored the results of the consultation when preparing the original legislation. As a result, both the Native Women's Association of Canada and the Assembly of First Nations are demanding better legislation, because the consequences of passing inadequate legislation are so dire.

One of the basic problems with this bill is that while it removes some of the most onerous parts of previous legislative attempts, it still refuses to recognize first nations' inherent right and jurisdiction in this matter. As a result, we again have the government telling first nations how they should run their lives, their communities and their systems rather than respecting their laws, their traditions and their inherent right to self-government.

This is the ultimate “daddy knows best” approach taken by the government, and it does nothing to make life better for women who live on reserve.

The Assembly of First Nations determined that three broad principles were key to addressing matrimonial rights and interests on reserves: recognition of first nation jurisdiction; access to justice, dispute resolution and remedies; and addressing underlying issues, such as access to housing and economic security.

Bill S-2 does not take any of these three principles into account in any meaningful way.

My province, Quebec, is a good example of the problems this bill will create. According to lawyer David Schulze, the particularities of my province have been overlooked in Bill S-2. Under the Civil Code, common-law partners do not hold any rights to property, but they would under Bill S-2. For example, a first nations member would have rights to his spouse's home on the Uashat reserve, but she would not have any rights to his home in Sept-Îles, across the street.

The lands covered by the most recent treaties, such as the Cree-Naskapi (of Quebec) Act, which applies to large portions of my riding, are excluded.

Under this bill, a Naskapi would have rights to his Innu spouse's home in Schefferville, but she would have no rights to his home 80 km away in Kawawachikamach, which is part of the Category I-N lands under the CN Commercialization Act and the Northeastern Quebec Agreement.

These examples show the new problems this legislation would cause in my home province alone, and they highlight another glaring problem with the bill: the imposition of provincial law on reserve. Imposing provincial legislation on first nations without their consent is ethically lacking and practically problematic and ignores the inherent rights of first nations citizens. By taking this avenue, the Conservatives are trying to make a quick fix, the equivalent of slapping a band-aid on an injury that requires major surgery. This approach is lazy and disrespectful toward those women who they claim to seek to help.

This proposed bill also runs afoul of the UN Declaration on the Rights of Indigenous Peoples, which the Conservatives finally endorsed in 2010. According to the declaration, consultation requires consent as well. While Canada has conducted some limited consultations, no consent was given by the rights holders to have provincial laws applied in their communities. Therefore, if the House passes and moves to enforce Bill S-2, we will be in violation of article 32 of the UN declaration, which ensures free, prior and informed consent on any matter relating to the lands or welfare of the rights holders.

Given the government's view of the UN declaration, I doubt that it sees that as a problem. Maybe that is why, after 14 months, we are still waiting for the Minister of Foreign Affairs to reply to the request of the UN Special Rapporteur on Indigenous Rights to study Canada. This approach shows why a bill like Bill C-469 is so important and needed today.

We have a big problem before us. It will require a comprehensive approach to arrive at a solution, one that must be led by first nations communities and be respectful of their own laws and traditions. Simply forcing provincial laws that were not written with those traditions and laws in mind will only make matters worse.

Part of the reason many first nations find themselves in this legal position today is that past governments took the “daddy knows best” approach, telling first nations how they should act, behave and govern themselves without giving any thought to their wishes, their needs, their desires or their rights. Today we know that this approach was wrong and a mistake, yet the Conservative government is determined to force us down the same failed path.

We cannot have true reconciliation and build that better tomorrow for all Canadians until we throw that failed approach into the trash can of history, where it belongs. We must renew a nation to nation relationship that begins with working with first nations communities, not dictating to them.

The Conservatives obviously have a great deal to learn about this. They seem more interested in being seen to do something while doing nothing, which is something they do with great skill. Now is not the time for pretending. It is the time to act and do this correctly right now. I hope that the government will take my words to heart, agree, and start to work with us to get this right, right now.

The House resumed from November 22, 2012, consideration of the motion that Bill S-2, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves, be read the second time and referred to a committee, and of the motion that this question be now put.