Thank you, Madam Chair and members of the committee. We appreciate the opportunity to provide you with a briefing on matrimonial real property issues today.
My name is Debra Hanuse. As indicated by Madam Chair, I'm the acting director of law and legislation at the Assembly of First Nations, and with me today is Bob Watts, chief of staff. We're here on behalf of the Assembly of First Nations and the national chief.
The Assembly of First Nations is a national organization representing first nations citizens throughout Canada regardless of residence or gender. Today we'll provide you with a brief overview of the current legislative gap that exists in regard to matrimonial real property on reserves and we'll also provide an overview of some of the obstacles that have impeded a search for solutions to this issue. We'll conclude with some of the Assembly of First Nations thoughts on solutions that are required to address this very significant problem.
I'm taking the approach of assuming nothing, and I'm not going to assume that everyone knows the whole legal context that gave rise to this issue. So I'll try to capture it in a nutshell, if possible.
As indicated by the previous speaker, Ms. Jacobs from NWAC, the issue first arose in 1986 with the decisions in Paul and Derrickson. Essentially what those cases established was that provincial matrimonial real property law does not apply to reserve lands because that's a matter that's within the exclusive jurisdiction of the federal government under section 91.24. So that's a very important point to note, because it means that when we're considering solutions there are significant challenges and problems that would flow with any attempt to apply provincial matrimonial law to reserve lands, because that essentially results in interference with the constitutional division of powers, which I'll address later in the presentation.
There are numerous challenges that would flow from trying to apply a system of property law for the disposition of matrimonial real property upon marital breakdown to the kinds of landholdings on reserves, which are not fee simple interests. So that's essentially the main context.
So what is the current gap that exists? There is no gap in regard to the disposition of personal property interests on a reserve, so if we're talking about cash and furniture and all those sorts of personal property interests, provincial law clearly applies in that context. However, in the context of real property and disposing of real property interests on reserve upon marital breakdown, provincial law clearly doesn't apply.
What are the practical consequences of that? That means there are certain remedies and relief available under provincial matrimonial law that are not available to first nations citizens. Those laws include orders for the partition and sale of the matrimonial property and permanent orders for possession of the matrimonial home and orders prohibiting the sale of the matrimonial home.
So those are the types of provisions that aren't available to first nations citizens right now as a result of this legislative gap. I'll now try to run very quickly through some of the obstacles that have impeded a search for solutions on these questions.
First of all, the constitutional division of powers has obviously been an obstacle to finding solutions, and I would refer you to and will provide you with a copy of our speaking notes, where we provide a bit more of an elaboration of the decisions in Derrickson and Paul and the various doctrines they refer to, the ultra vires doctrine and the paramountcy doctrine, which are all constitutional provisions and rules that really make it difficult to apply provincial laws regarding real property to disposition of matrimonial property on reserves.
A second matter that has impeded the search for a solution is the nature of a lot of the provisions in the Indian Act that are directed towards protecting reserve lands from alienation. There are numerous provisions in the Indian Act, and I'll refer to very few of them. For example, subsection 89(1) of the Indian Act prohibits the giving or taking of mortgaging reserve lands. So under subsection 89(1) of the Indian Act, reserve lands can't be mortgaged. The objective of that provision is obviously to protect lands from alienation.
Section 24 of the Indian Act.... Another way of preserving the aboriginal interest in reserve lands is to prohibit the transfer of any interest in reserve lands except to other members of the band or to the band. Again, all these provisions, section 29 and subsection 89(1), protect reserve lands from seizure under legal process. All these provisions are directed toward protecting reserve lands from alienation.
While there are numerous offensive and paternalistic provisions in the Indian Act, first nations generally support the objective of preserving reserve lands from alienation and see the value in having some of these provisions there, although there's a need for modernizing that particular land regime in the Indian Act.
One of the very difficult challenges is if you try to take the provincial matrimonial law regime and apply it to reserve lands, you run the risk of undermining the very protections in there to protect Indian reserve lands from alienation. As an example, under provincial matrimonial laws, courts can order partition and sale of matrimonial real property. If you take that example and you apply it to reserve lands, there's a risk of alienating that particular land.
How would you reconcile that provincial regime with the nature of reserve landholdings, which are very much governed and prescribed by the Indian Act? There's a huge challenge that has really stood in the way of finding effective solutions to this very serious problem we all face today.
The next area I would like to touch on, which has served as an obstacle to progress, is the nature of reserve land tenures that I alluded to earlier. Namely, you have provincial matrimonial property law that is directed towards fee-simple interests in land, and there are no simple fee-simple interests in land on a reserve. The nature of reserve lands is very different. Legal title to reserve lands is vested in Her Majesty in right of Canada. First nations have what's called a beneficial interest in reserve lands, and individual members of first nations have even lesser interests in reserve lands.
There are limited rights of possession and occupancy that first nations individuals can acquire to reserve lands. One such legal interest is called the certificate of possession. It's an interest in land, which, like a fee-simple interest, is transferable, but as I indicated earlier it's only transferable to the band or another band member, not generally transferable like a fee-simple interest. That's pretty much the point at which any comparisons between a fee-simple interest and a certificate of possession end.
Another type of interest in reserve land is an even less secure form of tenure known as a custom allotment. A custom allotment has no legal significance whatsoever; it's an interest in land or a privilege to occupy land that is sometimes granted by a band council to band members. That right of occupancy is entirely at the pleasure of the band council, and it's certainly not an interest in land that would be transferable.
There's an interesting legal principle, nemo dat quod non habet, which means you can't give any interest greater than what you have. If you have a custom allotment, which is not a legal interest in land, it would be interesting to see how a court would then try to order interim or permanent possession of an interest in a custom allotment when the individual band members and spouses who would have an interest in that type of holding would have no interest legally recognized at law. The courts would be very challenged to find a way to address the particular needs of spouses who have custom allotments to reserve lands.
I'd now like to turn to my colleague, who will address some of the additional obstacles to progress in finding solutions to this very serious problem.
Thank you.