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

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

moved 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.

Mr. Speaker, thank you for the opportunity to speak today in support of Bill S-2, the Family Homes on Reserves and Matrimonial Interests or Rights Act .

I am thankful for the opportunity to speak today in support of Bill S-2, the family homes on reserves and matrimonial interests or rights act, a very important piece of legislation for aboriginal women.

I want to focus today on a key element of the bill, namely the provision that allows for emergency protection orders in situations of family violence affecting aboriginal women on reserve.

Court order protection from domestic violence has long been available to Canadian women living off reserve. It has long been recognized, by law enforcement and those working to address violence against women and girls, as critical to the safety of women.

Simply put, access to emergency protection orders saves lives. Extending these same rights to aboriginal women living on reserve will save more of them.

I draw the attention of the House to what the latest edition of Statistics Canada's Women in Canada report states with respect to spousal violence against aboriginal women:

Previous studies have shown that higher proportions of Aboriginal women experience spousal violence compared to non-Aboriginal women....

In 2009...15% of Aboriginal women who had a spouse or common-law partner reported that they had experienced spousal violence in the previous five years. In the case of non-Aboriginal women the proportion was 6%....

The report goes on to state:

There is evidence that many Aboriginal women who are victims of spousal violence experience severe and potentially life threatening violence.

In fact, the Statistics Canada report stated that:

In 2009, 58% of Aboriginal women who experienced spousal violence reported that they had sustained an injury compared to 41% of non-Aboriginal women.

It goes on to state:

Almost half (48%) of Aboriginal women who had experienced spousal violence reported that they had been sexually assaulted, beaten, choked, or threatened with a gun or knife. A similar proportion...[just over 50%] of Aboriginal women who had been victims of spousal violence also reported that there were times when they feared for their life.

All of us have heard the statistic that aboriginal women are five times more likely to be murdered than non-aboriginal women. Those are the cold, hard, ugly facts about the situation aboriginal women face day in and day out with, at the very least, the same protection afforded to women who live off reserve.

It is no secret that many of these women are forced to flee their homes and communities to escape violence. Many end up homeless, alone and even more vulnerable than before. They become vulnerable to trafficking and further abuse and violence.

If it is possible to enforce emergency protection orders, abusers can be ordered to leave the home and women can stay in the home. The ability to remain in their home would ensure that aboriginal women on reserves could continue to care for their children, could access the support of the community around them, but most importantly, could escape violence.

Let me be clear. Today there are no protections for aboriginal women living on reserve. This means that, 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 man, to leave the home even on a temporary basis. The spouse who holds the interest in the on-reserve home, which is almost always the man, can sell an on-reserve family home and keep all of the money. As well, the spouse who holds the interest in the on-reserve home, which is almost always the man, can also bar the other from the on-reserve family home.

The proposed legislation in front of us would provide basic rights and protections with respect to the fair division of the family home to on-reserve aboriginal individuals facing the breakdown of a relationship or the death of a spouse. The legislation would also provide protection for women in the event of family violence. These rights and protections are available to all other Canadians through provincial and territorial laws, which of course cannot be applied on reserves.

It is unacceptable that first nations people, especially women, do not have access to the same protections simply because of where they live. This proposed legislation would offer protection to more than 100,000 individuals who are currently living without legal matrimonial real property protection. This is a very important change, but it is also a very big change, so it is planned that the implementation of this legislation would also include education and training for key officials, including police officers on reserve and judges. It is also planned that there would be a public education and awareness campaign.

I would like to take a moment to look at the history of women's property rights, because historically a woman's property was under the control of her father, or if she was married, it was under the control of her husband. This issue first began to be discussed in the 1850s in both England and France. In Europe, of course, the law sided with men, who provided women protection but not equality.

In the United States at the same time, women themselves began to speak out about the most important civil rights challenges that were facing women in that day. In Canada at the turn of the century, where marriage is a provincial matter, of course, most women still saw their property rights transferred to their husbands when they got married. However in 1911, the provinces began to examine the issue of a woman's right to property ownership after marriage dissolution. Married women in Manitoba, P.E.I. and Saskatchewan were finally permitted the same legal capacity as men with regard to their property.

I have to say that, in my role as Minister for Status of Women, I find it difficult to accept that 100 years later aboriginal women living on reserve have not yet achieved the same rights. More than 25 years have passed since the Supreme Court of Canada issued a landmark ruling on two cases that are very important to this issue: Derrickson v. Derrickson and Paul v. Paul.

In its 1986 landmark decision on Derrickson v. Derrickson, the Supreme Court of Canada stated that courts cannot rely on provincial law to order the division of matrimonial real property on reserves. In doing so, the court underlined a legislative gap that has since meant that women residing on reserves and facing the breakdown of a relationship have not been able to access the Canadian legal system to resolve matters concerning their real property.

In other words, aboriginal women who live on reserve do not have rights to property or protection on reserve. They are frankly being denied their very basic human rights, and we believe this must end. Without access to the same rights shared by other Canadian women, these women have been left vulnerable for far too long. Until on-reserve matrimonial real property laws are in place, aboriginal women who are living on reserve will continue to face the reality that in the event of spousal violence, separation, divorce or death, the law does not protect their property. It does not protect their interests. It does not protect their rights, but most fundamentally, it does not protect their safety.

The Supreme Court of Canada's ruling did spark a dialogue and a larger effort to identify, develop and implement an effective solution. Over the years there have been a number of respected institutions, both in Canada and abroad, that have completed studies and analysis of relevant issues in this subject matter. Since 1986, a host of both domestic and international human rights bodies have studied, referenced and called for action on this matter.

The United Nations Committee on the Elimination of Discrimination Against Women is one of them. The Standing Senate Committee on Human Rights, the House Standing Committee on Aboriginal Affairs and Northern Development, the House Standing Committee on the Status of Women, the Aboriginal Justice Inquiry of Manitoba and the Royal Commission on Aboriginal Peoples have all studied this issue. The overwhelming conclusion of these reports was that legislation is the only effective solution and the only course of action.

With this bill, the family homes on reserves and matrimonial interests or rights act, I am proud that our government is moving to tackle this critical issue. It is not just for aboriginal women and children on reserve but also as an important part of the continued fight for equal rights for all women. This legislation would finally eliminate the longstanding human rights gap and in doing so contribute to the end of the suffering of many women and families who live on reserve.

I do want to acknowledge that there have been some efforts to address the issue of matrimonial property rights already by first nations. The First Nations Land Management Act does require first nations to develop laws related to matrimonial property rights and interests as part of their own land codes that they are developing. However, while these solutions have helped a handful of first nations, Bill S-2 would ensure that all women and individuals living on first nations reserves would have access not only to emergency protection orders to ensure their safety and security but also to equal matrimonial real property.

In 2005, the Government of Canada initiated preliminary consultations on this issue. In 2006, we announced a national consultation process to find a solution to fill this legislative gap. This consultation process was conducted in collaboration with the Assembly of First Nations and the Native Women's Association of Canada, so that they could engage and consult with individual aboriginal communities across Canada.

Along with these sessions, Aboriginal Affairs and Northern Development Canada held consultations with and provided funding to a wide range of other aboriginal organizations. This is an important point because aboriginal women have waited for 25 years to see this type of protection, and it is a big change. The government has recognized this. There has been opposition to it by some parties. However, let us remember that, in total, to date, 103 consultation sessions have been held at 76 different sites across Canada. Hundreds of people have participated and expressed a wide range of opinions.

To prepare a report and make recommendations for a legislative solution, the government also engaged a ministerial representative, a respected entrepreneur and former first nation chief.

Due to the complexity of this issue and of course the diversity of views, consensus could not be reached on every aspect of what the legislation should entail. Consensus did emerge, though, on the key elements of a legislative solution. These elements, I am happy to say, are all part of the legislation that is being introduced to Parliament, which is Bill S-2.

One of these elements is a two-part solution that is both practical and sensible. First, the bill would allow for first nations to develop and implement their own laws to protect the matrimonial real property rights and interests of community residents. These laws could be based on the community's tradition. The content of the laws would be entirely between the members of the first nation government, and must be approved by a community ratification process. The second part of the solution is a provisional federal regime that would apply, once in force, until the time the first nations develop their own laws.

I want to emphasize the point that these provisional rules would apply to first nations unless or until they enact their own matrimonial real property laws under this legislation. This would ensure that laws exist to protect the rights and interests of all Canadians, regardless of where they live in Canada.

As well, parliamentary committees reviewing these bills have considered the testimonies of a long list of witnesses and proposed a series of improvements. All of these amendments are also in Bill S-2.

The simple fact is that the legislation now before us represents the culmination of decades of work to find an effective solution. Now is the time to implement this solution. Aboriginal women who have lived on reserve have waited too long.

Bill S-2 also includes additional improvements that were made to the bill prior to its introduction in September of 2011. These improvements respond directly to concerns that were raised by stakeholders.

Bill S-2 also features another improvement over previous versions, a significantly lower ratification threshold. Several witnesses who appeared before committee expressed serious concerns about the ability of some first nations to engage enough voters to secure a meaningful result under a double majority, which requires that a majority of eligible voters must vote and that a majority of those who vote must vote in favour. Now, with the changes that we have made, a first nations council would be responsible for informing its members of the content of its laws and secure the approval of a majority of voters. It must also inform the minister of the results and provide a copy of the approved law to the minister, any organization that may be designated by the minister and the respective attorney general.

More important, I think the changes we have made to Bill S-2 are consistent with the direction this government is taking in terms of diminishing the role of the federal government in the day-to-day administration of first nations and handing those responsibilities over to first nations, where it belongs.

Finally, when the Senate adopted Bill S-2, it did so with two additional changes that would allow judges to extend emergency protection orders beyond 90 days. This would allow judges to exercise discretion on the duration of the order upon the rehearing of the case or when changing or revoking emergency protection orders. This is very important for the safety and security of aboriginal women living on reserve.

The Senate passed Bill S-2, as amended, on December 1, 2011. Bill S-2 is informed by many years of study, consultation and debate. The proposed legislation builds on previous attempts to enact similar legislation. It incorporates a series of amendments adopted by parliamentary committees in response to stakeholder testimony, and was substantially altered before its introduction into this Parliament to further strengthen the bill and to facilitate the development of first nation laws in this area.

I believe it is our duty to adopt Bill S-2 and finally put in place a legislative solution, which is long overdue, to support aboriginal women on reserve.

I also want to point out that some of the criticisms raised of the bill are based on false information. For instance, some people believe that the proposed legislation could take away the property rights of first nations. The view that a non-member of a first nation could gain ownership of reserve lands is completely false.

The bill, in clause 5, explicitly states:

(a) title to reserve lands is not affected by this act; (b) reserve lands continue to be set apart for the use and benefit of the First Nation for which they were set apart; and (c) reserve lands continue to be lands reserved for the Indians within the meaning of Class 24 of section 91 of the Constitution Act, 1867.

The legislation is very clear. At no point would the collective ownership of first nation lands be jeopardized under Bill S-2.

Another criticism refers to what is actually not in the bill, namely that Bill S-2 does not include specific funding to improve access to the courts, to emergency family shelters and to on-reserve housing. Bill S-2 is not about policy or funding levels. It is about eliminating a cause of injustice and closing a legal loophole that creates inequality and leaves aboriginal women vulnerable. It is about ensuring all Canadians, whether they live on or off reserve, have similar protections and rights when it comes to family homes, matrimony interests, security and safety.

Consider the testimony provided by one aboriginal leader before committee during its review of Bill S-2. This is what Betty Ann Lavallée, national chief of the Congress of Aboriginal Peoples, had to say. She said:

[Bill S-2] is addressing the real human issue of an aboriginal person, something taken for granted by all 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.

That has been happening in Canada for far too long.

National Chief Lavallée recognizes that Bill S-2 is ultimately about preventing abuse and discrimination. Her words are informed by her knowledge of the often harsh realities of day-to-day life faced by many women residents of first nation communities.

I agree completely with Chief Lavallée's eloquent words and I believe that Bill S-2 strikes an appropriate balance between individual and collective rights.

Here again I must return to my role as the Minister for Status of Women. We also know that this issue is critical to future generations of aboriginal children. We are working hard to advance equality for women and to remove the barriers to women's participation in society and eliminate violence against women. This includes aboriginal women.

As the Minister for Status of Women I am very concerned with the pattern of violence against aboriginal women and the impact it has on the families and the communities who suffer from it. Today we have a chance to make a change. This issue is a responsibility that we all share and by working together we can better address it.

I call on my colleagues in the House to support the legislation. For more than 25 years women living on first nations communities have had to live with this human rights gap. For most Canadians that protection exists. For women on reserve, that protection does not exist.

I call on all of my colleagues in the House to move this forward and end this human rights gap once and for all for aboriginal women living on reserve.

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

Mr. Speaker, perhaps to correct the record, aboriginal women in Canada have actually been living with discriminatory practices since colonization. This is not just in the last 25 years. I think that is an important note.

Where we would agree with the minister, of course, is that discriminatory practices around how matrimonial real property is divided need to be addressed. The question is around how that gets addressed.

The minister mentioned this in her speech but I would ask the minister specifically about it, since the government has been well aware of the problem over a number of years and since there have been consistent calls for non-legislative measures to help address some of this. Could the minister tell us specifically how much money has been invested in the land and housing situation to help with property division?

How much money has been invested in legal remedies and alternative dispute resolution mechanisms? How much money has been invested in community legal aid and mediation services? If the minister is truly concerned about violence against aboriginal women, when will she initiate an inquiry on murdered and missing aboriginal women?

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

Mr. Speaker, I hope the hon. member's comments mean that she will support an end to this human rights gap and she will support Bill S-2 to ensure that aboriginal women living on reserve will finally have protection under the law, as do other women who live off reserve.

I know the hon. member is a woman who believes in women's rights, as I do, so I cannot imagine that she does not share my concern that, for this many years, since the Supreme Court ruled 25 years ago, this legislative gap has existed. I cannot imagine that she will not support Bill S-2.

There have been attempts to go the non-legislative route. The hon. member knows that. There have been attempts to encourage and in many ways to work with first nations to ensure that matrimonial property rights are addressed on reserve. Unfortunately, there are very few first nations that have achieved that.

We are now at a place where I think we have to act. There are women, as the hon. member well knows, who encounter severe violence on reserves every day. These aboriginal women need us to act.

This is a legislative gap that has been identified by not only domestic but international human rights bodies as something we have to address. As a woman who believes in equality for women, it is unacceptable to me that aboriginal women do not have the same protections on reserve as women who live off reserve. It is time that ends.

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

Mr. Speaker, in view of the status of women committee's appalling record of going in camera and that in the last study on violence against women it refused to put anything to do with aboriginal women in the recommendations because it said its mandate was restricted to just those things directly under the responsibility of the minister's department, will the minister agree that the bill be referred instead to the aboriginal affairs committee, where it can be studied properly by people who understand aboriginal rights, understand legislation and will do the proper thing in calling the appropriate witnesses?

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

Mr. Speaker, I do not think I heard the hon. member correctly. I hope I did not. She suggested the members of the status of women committee, who have an interest in seeing equality rights for women across this country, will not do an appropriate job studying the bill.

I disagree with the hon. member. The bill has been studied by many committees over the years. I think the members of the status of women committee are very well positioned, considering this is inherently an issue of discrimination and equality. This is inherently an issue of discrimination against aboriginal women living on reserve.

I think the status of women committee is perfectly positioned to study the bill.

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

Mr. Speaker, I am honoured to be able to ask the Minister for Status of Women a question that would help vulnerable women on reserves, not only in the London area but all across Canada. I have heard from women in my riding and they have told me that the bill is needed now more than ever. I am proud of the many women's groups in my city of London that work tirelessly to promote and strengthen women's rights. This bill would accomplish both.

Can the Minister for Status of Women please explain to the House why it is so important that we move ahead with Bill S-2?

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

Mr. Speaker, I want to thank my colleague, the Parliamentary Secretary for Status of Women, who has done an incredible job championing the rights of women. I know that she will do an excellent job working with her committee colleagues on all sides of the House on this issue.

The legislative gap that Bill S-2 will close has hurt families and entire communities, but most specifically it has hurt aboriginal women living on reserve. It is our position, as a government, that it is unacceptable that on-reserve residents, particularly women who are the most affected by this legislative gap, are deprived of their rights and protections because of where they live. That is unacceptable. For most Canadians undergoing the breakdown of their conjugal relationships or marriages, or in the event of the death of a spouse, there is legal protection to ensure that their rights, including property rights, are protected. In this situation, there are no laws that protect the rights of aboriginal women living on reserve. Their interests are not protected and, in the case of emergency protection orders due to family violence, their safety and security are not protected.

This has been a long time coming. I hope that all members of the House, especially women, see fit to see the bill finally through so that aboriginal women would have the protections they deserve.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I would like to pursue the matter with the hon. minister of the route the bill has taken. First, it is odd that it started in the Senate. Second, it is odd it is going to the Standing Committee on the Status of Women instead of the committee on aboriginal affairs, which would have the expertise. Third, I am troubled by the lack of consultation with first nations before having the bill come before this place.

Will the members of the parliamentary Standing Committee on the Status of Women insist that everything that goes on in that committee be restricted to the mandate of the Minister for Status of Women, as it has done in the past, or will that committee expand its mandate to include aboriginal issues? I think it is going to the wrong committee. I will be blunt about that.

I ask for the hon. minister's comments and perhaps her assurance that the committee will not restrict its mandate solely to the matters within the minister's portfolio.

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

Mr. Speaker, the member will be happy to find out that we are working very closely with the Department of Aboriginal Affairs. We understand the member's concerns but again it is very important that she recognize that this issue affects women living on reserves more than anyone else. The status of women committee is perfectly positioned. This is an issue about equality for aboriginal women living on reserve. It is about safety and security and by all means it is about addressing a legislative gap that affects violence against women, especially women living on reserve.

This is an issue that all women should champion. This is a legislative human rights gap that has existed for far too long. We will work and are working closely with the Department of Aboriginal Affairs. As I said, over 100 consultations have been held with first nations in 76 locations across this country. We will be open to any witnesses who would like to appear before committee. That is, of course, the purview of the committee to decide. However, at the end of the day this is inherently about discrimination against women living on reserve.

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

Mr. Speaker, the minister mentioned consultations, particularly with aboriginal organizations. It is obvious that these consultations were not productive because groups such as the Assembly of First Nations and the Native Women's Association of Canada have very serious reservations about the implications of this bill. She talked about sending the bill to the Standing Committee on the Status of Women and not the Standing Committee on Aboriginal Affairs and Northern Development.

How can the government introduce this bill knowing that the main aboriginal groups have very serious reservations about it and do not want it to move forward?

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

Mr. Speaker, I have to say that I have been disturbed over the years about this issue. This has been an issue that has mattered to me for many years. I know that there are some male chiefs who have not supported this and have exerted all kinds of pressure behind the scene to see this bill not go forward, and that is not appropriate. I hope the member is not insinuating that he in any way sides with that kind of pressure.

We are not going to set the bill aside or set aside the interests of women living on reserve to consult and consult again. We have consulted for 25 years. This is the fourth time that this House has tried to pass this legislation. There are all kinds of people who would like to see it undermined, but we are not going to allow that. We are going to be on the side of aboriginal women.

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

Mr. Speaker, we have before the House 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. The minister who just spoke talked about this being an act to address inherent discriminatory practices against women. However, it is interesting that the title of the bill does not mention that.

The bill deals with matrimonial breakdown, which generally speaking is between a man and a woman, although same sex relations are legal in this country, so it could be between a same sex couple. One of the challenges we have before the House in dealing with the bill is the need to balance the rights of women and men who are involved in a marital breakdown against inherent rights within first nations. It is a very difficult balancing act, and I want to lay out some context on how we got to this place today.

Others in the House have noted that the bill was introduced in the Senate and is now referred to the status of women committee. Although this is a very competent committee with very capable members, there are questions arising, first of all, about why the bill was introduced in the Senate rather than the House of Commons, where one would think it legitimately should have been introduced. The second is why the bill was not referred to the aboriginal affairs committee, which is the committee that has the mandate to deal with matters within the Indian Act and other matters facing first nations, Métis and Inuit in this country

We hear the member opposite positioning the act to deal with discriminatory practices against women. However, arguably it is an act that deals with a much broader matter facing first nations communities.

In terms of context, I want to turn briefly to the “Report of the Ministerial Representative Matrimonial Real Property Issues on Reserves” by Wendy Grant-John and her colleagues, who did this report for then minister of aboriginal affairs, Jim Prentice. She included a lengthy laying out of the history. I will not start with the pre-colonial period and work through to the modern day, but she included a quick summary of 1990 to present.

In her summary, she indicated there have been several commissions of inquiry in Canada drawing attention to the issue and that eight UN human rights bodies have expressed concern. There has been litigation. There have been Senate and House of Commons committees, and there have been various pieces of legislation. However, here we are today, in 2012, still dealing with this matter.

In terms of the broader context, there have been many reports, but I will refer to the “Discussion Paper: Matrimonial Real Property on Reserve”, which is an excellent report. It lays out both the context as well as many of the challenges facing any government in terms of coming up with a legislative approach to this matter. I mentioned a couple of the reports, studies and conventions that have been cited, but this particular report cites:

The lack of remedies under federal law for married women on reserve that are typically available to married women off reserve under provincial law has been characterized...as a violation of Article 26 of the International Covenant on Civil and Political Rights....

It has also been cited in a 1998 report from the United Nations Committee on Economic, Social and Cultural Rights, which noted concern with:

...Canada's failure to ensure equal protection of the law as between Aboriginal and non-Aboriginal women in respect to matrimonial real property:

It also notes the final report of the Aboriginal Justice Inquiry of Manitoba, AJIM, which recommended that:

The Indian Act be amended to provide for the equal division of property on marriage breakdown.

I will not read the various statutes in the study, but the report indicates that:

A few words must be said about the larger historical and policy context in which the issues of matrimonial rights on reserve is situated.

Prior to European colonization efforts, many First Nation societies were matriarchal in nature. Missionaries and other Church officials discouraged matriarchal aspects of First Nation societies and encouraged the adoption of European norms of male dominance and control of women. According to the customary law of the Mohawk nation for example, the matrimonial home and things in it belong to the wife and women traditionally have exercised prominent roles in decision-making within the community.

It is interesting, as I noted earlier in a question to the minister, that these discriminatory practices are long-standing in this country.

The minister also noted the Royal Commission on Aboriginal Peoples in her speech. First of all, I want to note:

Section 91(24) [of The Constitution Act] therefore would appear to allow federal legislation applicable on reserve to provide remedies on separation or divorce such as interim possession of the matrimonial home or forced sale of the right to occupy. While rights of ownership to reserve land cannot be created under the Indian Act...individual rights of possession in relation to parts of reserve land can be transferred or sold among band members. Individual band members can own homes or other buildings on reserve.

This is an important context. When we are talking about division of property, we are dealing with a different land regime than we are dealing with off reserve. It is important to note that in this context. When we are talking about division of matrimonial property, often the occupants of that home will not have title to the land. There are some anomalies there with certificates of possession and other matters, but it is an important note. This is noted in the Constitution.

The royal commission also noted this:

The Report of the Royal Commission on Aboriginal Peoples (RCAP) recognizes existing inherent powers of Aboriginal peoples as an aspect of a right to self-determination within Canada, and as a constitutional right protected by section 35 of the Constitution Act, 1982. The (RCAP) analysis includes jurisdiction over marriage and property rights in respect to First Nations lands (such as Indian Act reserve lands) as part of the core area of First Nation inherent jurisdiction that can be exercised without negotiation of agreements or other forms of recognition by federal or provincial governments.

This is an important point. At the outset, when I talked about the very difficult challenge of balancing discriminatory practices against women and the need for remedies—again, I believe all members in this House would agree there is a need for remedies—there is also this other jurisdictional aspect that first nations have. It has been cited in many court decisions.

The royal commission continued:

In the context of matrimonial real property issues on reserve, such an analysis would recognize how First Nation women historically have experienced racism and sexism and other forms of discrimination as a result of the Indian Act. For example the imposition of non-Aboriginal concepts of private or individual property rights combined with numerous forms of patriarchal bias have led to First Nation men being the primary holders of Certificates of Possession on reserve. This in turn contributed to the displacement of many First Nation women from their traditional roles as women, negatively affected their gender relations with men and the relationship of First Nation women to First Nation land. With respect to matrimonial real property, the collective impacts of colonialism...have resulted in many women finding themselves in a disadvantageous legal position when their marriage or common law relationship breaks down.

The royal commission report went on to say:

In addition, many women in submissions to the RCAP and other processes have drawn attention to the problem of women being affiliated automatically with the bands that Indian Affairs records show they were connected to in the past through their fathers or husbands. Many women now apply for membership in their husband's band. On breakdown of the marriage, women can encounter difficulties resuming their affiliation with the band they were born into, and asserting residency rights there. In this regard, Indian Affairs has acknowledged that “[r]egistrants would much prefer to be affiliated with a band closer to their domicile or to a band with which the mother or wife in a marriage is affiliated”.

The Royal Commission on Aboriginal Peoples report did make a number of recommendations, and I want to touch on a couple of them. They summarize it as follows:

Family law falls within the core of (inherent) Aboriginal self-government jurisdiction and as such, does not require negotiation of a self-government agreement to be exercised.

The recommendations of the RCAP clearly favour a recognition of Aboriginal inherent jurisdiction to adopt laws addressing family law issues generally, and see the exercise of this jurisdiction as the most immediate way of ensuring culturally appropriate legal responses are developed as quickly as possible. The exercise of this jurisdiction is seen as the best way to take the immediate action required to address the serious areas of legal vacuum respecting matrimonial real property on reserves. This exercise of inherent jurisdiction would take place pending the negotiation of broader self-government arrangements...

One of the RCAP recommendations was:

working out appropriate mechanisms of transition to Aboriginal control under self-government;

In 1996 there was a clear road map laid out for how to deal with the issue of matrimonial real property on reserve. Here we are, in 2012, continuing to have this conversation. Most of the recommendations from the Royal Commission on Aboriginal Peoples were never implemented. In fact, a couple of years ago there was a report from the Royal Commission on Aboriginal Peoples which gave, not just the current government, but any government since 1996, a failing grade on moving forward on what was seen with many first nations, Métis and Inuit as a good faith exercise. We continue, I would say, to talk out of both sides of our mouths. On one hand in the House, we commission very important reports, and on the other hand we simply do not act on them.

With regard to case law, what happened previously was that there was an application of provincial laws to reserve lands on matrimonial breakdown. There is a well-known case, Derrickson v. Derrickson, in which the Supreme Court of Canada held that provincial family law could not apply to the right of possession of Indian lands. More specifically, the court determined that provincial laws entitling each spouse to an undivided half interest in all family assets could not be applied to land allotments on reserve. The court stated:

The right to possession of lands on an Indian reserve is of the very essence of the federal exclusive legislative power under s. 91(24) of the Constitution Act, 1867. It follows that provincial legislation cannot apply to the right of possession of Indian reserve lands.

The court was able to make an order for compensation, taking into account the value of the land allotment for the purpose of adjusting the division of family assets between the spouses under the relevant provincial family law.

In the case of Paul v. Paul, the court said that even if this were the case, the provincial legislation being relied on was in conflict with the Indian Act provisions and, applying the doctrine of federal paramountcy, the federal provisions would prevail.

There were a number of other court decisions. The summary stated:

The overall result of the case law is that provincial and territorial family law legislation does not apply to reserve land in any way that can affect individual interests in unsurrendered reserve land. Such legislation is considered to be in conflict with the provisions of the Indian Act....

A number of court decisions have said that provincial law does not apply. Now we have a piece of legislation that is supposed to be an interim measure that will allow provincial provisions to apply on first nations lands where the first nation does not have a code in place to deal with matrimonial real property. I want to talk about ability to look at some of those codes in one moment.

Some questions have arisen out of this. Of course, we know that the provinces and territories all have different provisions around division of assets for people living within the province off reserve. It then becomes that we have a federal government that in some ways is abdicating its responsibility in developing legislation that would apply across the country from coast to coast to coast and abdicating its responsibility to the provincial governments in the matter in which, previous cases state, provincial legislation does not apply. It is an interesting question in terms of what the federal responsibility is versus provincial jurisdiction. We have seen the government rely increasingly on provincial jurisdiction in matters facing first nations, Métis and Inuit.

Currently there are first nations that have custom codes in place and there is a provision under the First Nations Land Management Act where first nations can develop their own codes. I will go back to the report that was commissioned a number of years ago on matrimonial property. It outlined the following:

In order to clarify the intentions of the First Nations and Canada in relation to the breakdown of a marriage as it affects First Nation land:

(a) First Nation will establish a community process in its land code to develop rules and procedures, applicable on the breakdown of a marriage, to the use, occupancy and possession of First Nation land and the division of interests in that land;

for greater certainty, the rules and procedures referred to in clause (a) shall not discriminate on the basis of sex;

The reason I am raising that is because there are mechanisms right now where first nations can develop these codes.

The First Nations Land Management Act has a waiting list of nations that actually want to participate in this process. Therefore, one of the doors that could be opened to first nations to develop their own marital property relations codes is closed due to a lack of resources. If the government were serious and committed to a respectful nation-to-nation relationship with first nations, it would put additional resources into the FNLMA to assist first nations in taking part in that regime and developing those codes.

I do not have a lot of time left, but I want to quote from the UN Declaration on the Rights of Indigenous Peoples. Article 19 states:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that affect them.

Article 44 states:

All rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.

After enormous pressure, the government finally did endorse the UN Declaration on the Rights of Indigenous Peoples and indicated that it would take the next steps to move forward on it. Of course, we have seen no action since that happened.

However, this declaration that speaks of free, prior and informed consent is at the heart of much of the opposition to Bill S-2, because although the minister claims there were all kinds of consultations, the reality is that appearances at committee do not constitute consultation.

The Hon. Jim Prentice, the then minister of the day, did set up a process wherein there was a ministerial representative who developed an extensive report. A lot of the recommendations in the report were simply ignored in developing the legislation, and I want to touch on a couple of them.

In one of the recommendations, Wendy Grant-John outlined a preamble and what the sections of the act should include. She included things like acknowledging the importance of the principle of reconciliation in respect to existing aboriginal and treaty rights and the sovereignty of the Crown; the need for co-operation and reconciliation between first nations and the Crown on matters relating to matrimonial property on reserves; the importance of including women at all levels of decision-making as equals; and the need to take into account the interests of other family members and first nations' cultural interests.

In part, the legislation does talk about the interests of other family members, but does not specifically address the other cultural interests.

There was a case regarding the convention on the elimination of all forms of discrimination. It issued a report back in February or March 2012 with regard to the division of property on a marital breakdown and made some very specific recommendations. It is interesting what those recommendations included.

The recommendations to the state were to provide housing commensurate in quality, location and size to the one the applicant was deprived of; provide appropriate monetary compensation for material and moral damages commensurate with the gravity of the violations of her rights; recruit and train more aboriginal women to provide legal aid to women from their communities, including on domestic violence and property rights; and review its legal aid system to ensure that aboriginal women who are victims of domestic violence have effective access to justice.

Despite the long-standing recognition that there are serious problems facing aboriginal women in this country, we have not seen the kinds of measures put in place that would help women and their communities deal with the violence against aboriginal women, and their lack of adequate housing and access to remedial measures and conflict resolution.

It is one thing to put a piece of legislation in place and another to not then put the resources in place to help women, their communities and families deal with this very serious problem.

Based on the concerns that we have, the New Democrats will not be supporting this legislation.

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

Mr. Speaker, this bill is based on a careful balance between individual rights, specifically the need for spouses and common-law partners on reserve to have access to rights and protections similar to those existing off reserve, and the collective interests of first nation members in the reserve lands.

The bill clearly states that it is not intended to affect the title to the lands or change the status of the collective reserve lands. It also includes provisions to ensure that first nation councils may make court representations.

Under the bill, notice of applications for orders, except emergency protection and confidentiality orders, must be sent to the first nation council so that they can make representations to the court on the cultural, social and legal aspects of collective rights regarding the land. The bill states that first nations must have an opportunity to provide evidence on their collective rights and lands during court hearings. In response to the testimony of witnesses, government amendments were made to extend this opportunity, for example, to court hearings to change or revoke an emergency protection order.

Why does the member opposite not want to support women on reserves and help them get the emergency protection they deserve?

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

Mr. Speaker, I will respond to the member with another question. Why does the member and her government not put mechanisms in place to help aboriginal women, first nation, Métis and Inuit, when they are facing domestic violence and a lack of adequate housing? There are no resources around things like dispute resolution mechanisms.

In a report on matrimonial real property on reserve by the Scow Institute, it concluded with something that is very important for all of us in the House to take to heart. It says:

The lasting solution is one that comes from the community and builds on Aboriginal traditions. These traditional values of caring, nurturing, supporting, and respect are the proper way forward, not just for Aboriginal women but for everyone, young, old, male and female. The community is the solution.

When will the government put the resources into the community to help it develop appropriate codes and the non-legislative measures required to help families in crisis?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the Liberal Party critic has mentioned the importance of ensuring that all of the different stakeholders feel welcome in participating at the committee level. Would she want to comment on how important it is that all of the stakeholders feel they are empowered to participate in public hearings? In fact, some might even suggest that the committee go beyond the Ottawa bubble. It might be an appropriate issue for us to go into the communities on. Would the member support the Liberal Party's idea of maybe expanding these hearings outside of Ottawa so that we can ensure that different stakeholders are able to participate in the dialogue?