It's not all obstacles that we have; we have some ideas on solutions too. But it is a difficult situation.
On band membership and citizenship, under the Indian Act, a band member who marries a person from another band can retain membership in his or her own band. Furthermore, after the enactment of Bill C-31, non-Indians can no longer acquire Indian status or band membership upon marrying an Indian. As section 24 of the Indian Act limits the transferability of certificates of possession to members of a band—which Debra spoke to—extending remedies currently available under provincial matrimonial property law to reserve lands may inadvertently result in discrimination against non-Indian spouses and spouses who are members of other bands.
For example, section 24 and the foregoing band membership provisions in the act may preclude a court from making orders for permanent possession of matrimonial homes on reserve to non-members and non-Indian spouses. Thus further consequential amendments to the membership provisions of the Indian Act may be required to fully address the current legislative gap that exists on reserve lands and avoid further discrimination against other classes of individuals. This unquestionably complicates the search for solutions.
Bev Jacobs talked about chronic housing shortages. I'm just going to talk a bit about it because I think she expressed it really well.
While the lack of a legal regime to govern the disposition of matrimonial real property on reserve is a serious human rights issue that must be addressed, this legislative gap merely represents the tip of a much greater iceberg. The legislative gap in matrimonial real property rights on reserve lands is exacerbated by chronic housing shortages that exist on most reserves and difficulties in securing financing to purchase or construct alternative housing on reserve upon marital breakdown, in part due to the restrictions in the Indian Act against mortgaging reserve lands. These factors play an equal if not greater role in imposing hardship on first nation families, and in particular on women and children, who are often forced to relocate to off-reserve locations upon marital breakdown, particularly if domestic violence was a factor contributing to the breakdown in marriage.
Due to the chronic housing shortages on most reserves, the solution will not simply lie in extending remedies available under provincial matrimonial real property law to reserve lands. For example, under provincial matrimonial real property law, partition and sale of the matrimonial home is a remedy that is available to divorcing spouses. If provincial matrimonial laws were extended to reserve lands, this remedy would not have much practical benefit for first nation spouses, due to chronic housing shortages that exist on most reserves and difficulty in securing financing from conventional lenders.
Therefore, due to the chronic housing shortages on most reserves, the solution does not lie solely in filling the legislative void that currently exists. The chronic housing shortages on most reserves, which underscore the gap and poverty between first nations and other Canadians, must also be addressed in order to ameliorate the hardship typically imposed on first nations women and children upon marital breakdown.
What solutions are required to address the legislative void that currently exists in matrimonial property rights on reserve? The solution does not lie in imposing provincial matrimonial real property law on reserves. Apart from questions regarding the constitutional validity of this option, we have highlighted numerous practical problems with this option throughout our presentation.
The solution also does not lie in tinkering with the Indian Act. The act is a source of many of the problems that first nations and the federal government are grappling with today. We will not solve these problems by wallpapering more amendments over a flawed and crumbling piece of colonial legislation like the Indian Act.