Status of Women Committee on May 1st, 2013

[The Chair, NDP, Lysane Blanchette-Lamothe]

I'd like to welcome you to the 73^rd meeting of the Standing Committee on the Status of Women. Today, the committee is continuing its review of 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.

We will hear from Canadian Human Rights Commission representatives: Mr. David Langtry, Mr. Michael Smith and Ms. Valerie Phillips.

Thank you very much for being with us. You will have 10 minutes to make your opening remarks, and then we'll go to questions from members of Parliament.

We will then pause to allow the other witnesses to take their seats, following which the meeting will resume.

Mr. Langtry, you have the floor.

[David Langtry, Acting Chief Commissioner, Canadian Human Rights Commission]

Madam Chair and honourable committee members, thank you for inviting the Canadian Human Rights Commission to speak to you today on the traditional territory of the Algonquin people.

I have three main points.

First, the need for fair, available and accessible systems to deal with matrimonial real property on reserves is an urgent human rights matter.

Second, many first nations do not have the resources to develop an effective matrimonial real property system.

Third, challenges to the commission's jurisdiction could affect our ability to deal with complaints that involve matrimonial real property systems in first nations communities.

Both international and domestic human rights standards call for the equal treatment of women under the law. These same standards also call for the protection of women and their children against violence. For women living on reserve when a marriage ends, they are more likely to suffer disadvantage. The absence of fair systems to deal with matrimonial and real property puts them at an even greater disadvantage. This brings me to my second point.

It would appear that the intention of this bill is to provide a mechanism for dealing with matrimonial and real property on reserves, while first nations develop their own systems. Although the measure is meant to be temporary, many first nations lack the financial and human resources to develop effective dispute resolution systems. This is part of a larger issue.

There are also limited resources for other on-reserve measures associated with matrimonial and real property, such as housing, emergency shelters, counselling, and legal assistance. The commission has learned this reality in its work with first nations organizations.

In working with several first nations stakeholders, the commission developed a tool kit to help first nations increase their capacity to resolve human rights disputes as close to their source as possible. In many communities we were told that implementing such a system would not be possible with the resources they had at their disposal. This brings me to my third point.

Current challenges to the commission's jurisdiction could affect our ability to deal with complaints related to matrimonial and real property systems in first nations communities. In administering the Canadian Human Rights Act, the commission receives discrimination complaints regarding employment and services provided by organizations under federal jurisdiction; this includes first nations governments.

In 2008 Parliament amended the Canadian Human Rights Act to include the Indian Act. This meant that people living on reserve could challenge both the federal government and their own first nations government when they believed they were being discriminated against. Although the commission's mandate is clear, our jurisdiction is being challenged.

Under section 5 of the act, most government activities have been considered to be a service. However, many of the complaints the commission has received against the federal government dealing with aboriginal issues have been challenged by some parties, including the Attorney General. These challenges include what constitutes a service. If these challenges are successful, all funding for services that the Government of Canada provides could fall outside the jurisdiction of the Canadian Human Rights Act.

It is unclear whether a first nations matrimonial and real property system would be considered a service under the act.

In conclusion, this committee has heard, or will hear, from a number of witnesses who will be directly impacted by this legislation. I believe, as you do, of course, that their input is critical.

I encourage you to consider the following three questions during your deliberations. First, will the proposed legislation provide women with fair access to justice? Second, will the proposed legislation ensure that women will be able to access their rights in a safe way? And third, do first nations communities have the capacity they need to develop and implement their own matrimonial real property systems, and if not, what can be done to correct this problem?

I thank you for your attention, and we welcome your questions.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Mr. Langtry.

We'll now move on to the first round of questions.

Ms. Truppe, you have seven minutes.

[Susan Truppe, Conservative, London North Centre, ON]

Thank you, Madam Chair.

Thank you, Mr. Langtry, for being here today. The purpose of Bill S-2 is to address the inequity in matrimonial real property protections and rights on reserves, especially regarding the matrimonial home and protections for primary caregivers, the majority of whom are women. It also seeks to protect individuals in situations of family violence, separation, divorce, or death.

Do you believe that aboriginal men and women on reserves should have the same access to matrimonial property protections as other Canadians do?

[David Langtry]

Certainly. In a like manner with our advocating for the repeal of section 67, it has always been the position of the Canadian Human Rights Commission that all Canadians ought to have the same access to human rights protection. Certainly that was the argument advanced then, that for 35 years first nations people—over 700,000 people in this country—were not afforded the same opportunity as every other Canadian. So the answer is yes.

[Susan Truppe, Conservative, London North Centre, ON]

Thank you.

Do you agree that Bill S-2 would provide first nations women with matrimonial property protections and rights similar to those that other women off reserve have?

[David Langtry]

It would be our view, and certainly my personal view during my 15 years as a family law practitioner, that the system being proposed in S-2 would be similar, as it affords the same rights for off-reserve people, which is access, in the absence of development of their own matrimonial real property regime in a first nations community, to provincial and territorial courts after the one-year transition period, which would be similar to others seeking recourse. The problem still is, do first nations women living on reserve have access to provincial and territorial courts?

[Susan Truppe, Conservative, London North Centre, ON]

When you were speaking for women living on reserve when a marriage ends, you mentioned that they are more likely to suffer disadvantage. The absence of fair systems to deal with matrimonial real property puts them at an even greater disadvantage. Why is this, and what are some of the disadvantages they would be experiencing?

[David Langtry]

I certainly do not mean to speak on behalf of and for first nations women, aboriginal women, living on reserve. I would invite Valerie Phillips, who is legal counsel with our legal advisory service and has been engaged in...we're conducting aboriginal women round tables as part of our access to justice, meaning access to the Canadian Human Rights Commission, the complaint process, and the provisions of those services. It's through the course of that process that we hear of the conditions and the challenges facing first nations or aboriginal women living on reserve, and these would include lack of awareness, the fear of reprisal for speaking out, general safety and security, issues of trust with leadership, and of course many first nations women, aboriginal women, following a marriage breakdown, may be, together with children, required or forced in many circumstances to leave the community, whether because of lack of adequate housing or for other reasons.

Many aboriginal women face issues of lack of education and job skills, and they find themselves alone in a community without the necessary resources and no support services. Again, I would address the issue of the lack of domestic shelters in first nations communities and the lack of counselling and support services.

[Susan Truppe, Conservative, London North Centre, ON]

Bill S-2 enables a peace officer to seek emergency protection orders on someone else's behalf. This means that in situations of family violence, another individual can make the application, rather than requiring the victim of violence to leave the home and confront the violent spouse or common-law partner.

Do you agree that enabling a peace officer to seek emergency protection orders will support individuals on reserves who are experiencing family violence by providing them with more flexible options?

[David Langtry]

From the Canadian Human Rights Commission's point of view, and not being in a position to necessarily address what issues might face residents of a reserve, and again, not wanting to speak on their behalf...having said that, let me say that having as many options to protect and having greater access to justice would be something that would always be supported, if somebody truly has the choice and the option and the access and are aware of their rights, since if they're not aware of their rights, they can't exercise them.

[Susan Truppe, Conservative, London North Centre, ON]

One of the options that was discussed in the context of the centre of excellence was to consider options for making applications for emergency protection orders online. Do you think this would help to make emergency protection orders more accessible to individuals living in more remote reserve locations?

[David Langtry]

I suppose the question we've been addressing—not directly answering that, but certainly in terms of access to our system of complaints—is that as much as we say let's go online and have online complaint forms, especially for remote communities, first nations communities, there may not always be Internet access, and there may not always be the ability to access. Even if there is Internet access, there may not be the infrastructure or the equipment and so on to access it. We've gone to an online complaint form assessments process. But being mindful that there's a large segment of the population, particularly the most vulnerable, who most need the services we provide, we always allow both the in-person contact and the assistance and do not say that it can all be found online.

[Susan Truppe, Conservative, London North Centre, ON]

Thank you.

How much time do I have?

[The Chair, NDP, Lysane Blanchette-Lamothe]

You still have five seconds.

[Susan Truppe, Conservative, London North Centre, ON]

Five seconds? I'll pass, then.

Thank you very much.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madame Truppe.

I'll now turn to Madame Crowder for her seven minutes.

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

Thank you, Madam Chair.

Thank you, Commissioner Langtry. I think the three questions you posed at the end of your presentation are very good questions, in terms of fair access to justice, being able to access their rights in a safe way, and of course the capacity to develop and implement their own matrimonial real property.

I want to just touch.... Of course, I was on the aboriginal affairs committee when we were dealing with the repeal of section 67. In that piece of legislation there was a three-year transition period to allow communities to get up to speed with their new obligations. In this particular piece of legislation, there's only a one-year transition period.

Can you say something about the importance of having an adequate transition period in order to bring communities up to speed?

[David Langtry]

Yes, and thank you for the question.

You may recall we had spoken to the transition period during the repeal of section 67, and it was changed to the three years by agreement. Our experience was...in the three years we had done modelling after constitutional amendments that occurred as well. The reality at that time—and I would draw the analogy to this legislation—was that when the Canadian Human Rights Act was passed in 1977, the section 67 restriction was intended as a temporary exemption, which of course lasted for 31 years before it was ultimately repealed. The point we were making was that a one-year transition period would be insufficient for first nations governments who have never been under the operation of the Canadian Human Rights Act, whereas the federal government and federally regulated employers had 30 years of working under the act.

We welcomed and acknowledged publicly that we supported the three years that was ultimately agreed to. I can say in our experience that even the three years may not have been sufficient, but thankfully there were three years, because we continued to work with first nations governments in a number of ways, particularly in developing not only the awareness but also the tool kit I referenced about alternative dispute mechanisms. Some communities have them, many don't, and many have asked us for assistance on how they should develop those. That work is ongoing, even though we've had now since June 2008. Of course, we're approaching the fifth anniversary since the change.

So in welcoming a sufficient period of time, even for engagement within the community, for first nations to ensure that if they want to develop their own legislation, their own matrimonial real property legislation, even apart from an alternative mechanism, one year may not be sufficient for engaging the community.

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

I want to touch on your tool kit. I didn't have time to read the whole piece, but you talk about fair access to justice and accessing their rights in a safe way. We've heard some testimony that would indicate that just because people were able to access the provincial court system and have a division of property, it may well be that the community still potentially may not be a safe place. It's possible. There could be reprisals; there could be some very bad feelings.

When I looked at your community-based dispute resolution, one of the things I noticed was that this included the entire community throughout the stages of its development of the dispute resolution process. I think in other places there is evidence that this is an education process for the community as well, so that the whole community can be brought up to speed with a different way of handling things. For example, people could use examples on matrimonial real property.

Do you see value in having this dispute resolution process funded, for communities to develop as a tool, to help deal with some of the repercussions of the new matrimonial real property law?

[David Langtry]

Absolutely, I do. I would view the alternative dispute mechanism, depending on what each community chooses for itself to have...it could have a very broad application covering all disputes. The model we're promoting isn't restrictive only to those issues that could arise under the Canadian Human Rights Act as a complaint. This would be community-based or regional-based or what have you—again, whatever the community.

The tool kit does use examples of some successful and developing first nations dispute mechanisms. We've engaged those communities in helping us develop this tool kit and I would see it as being possible to address some of the issues that would arise under the matrimonial property as well.

I want to hasten to add—because you've referenced safety—that under the Canadian Human Rights Act there is provision where if a complaint comes to us, we can require the complainant to access the alternate dispute mechanism. That, however, is a discretionary provision. They are not required. So the mere existence of a good system in place does not mean we would turn it away.

I raise that because in our round tables we have heard from aboriginal women that they may not feel safe in accessing the community-based alternate dispute mechanism if one were established. We are assuring them that they're not required to if a complainant says here are the reasons why I don't want to access that and we want to come to the Canadian Human Rights Commission. Then certainly we can do that.

The general principle is, the closer to the source of the dispute and the sooner it can be resolved, the better it is for all parties.

[The Chair, NDP, Lysane Blanchette-Lamothe]

You have 30 seconds.

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

Just a quick comment on the online process, it's not just rural and remote communities. I live on Vancouver Island, in Nanaimo—Cowichan, an hour north of Victoria, and one kilometre off the highway people do not have access to high-speed Internet. So that's not a panacea in terms of dealing with these matters.

Thank you very much, Commissioner Langtry.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madam Crowder.

We will turn now to Madame O'Neill Gordon for your seven minutes.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

Thank you, and thank you, Mr. Langtry. It's nice to have you here and to listen to your presentation.

I want to assure you that our government has always sent a clear message that violence against women, wherever it occurs, should not be tolerated. But women on reserves are being abused and victimized without the protections they need, and especially without the rights and protections that all other women across Canada have.

Certainly we've had lots of consultations for Bill S-2. There have been 103 consultations across 76 communities and our government has spent over $8 million in this study. We see the need to go forward and make this happen.

It's been 25 years since this legal gap has been identified. Everyone, including our witnesses, agree that Bill S-2 is not meant to be a catch-all piece of legislation and that it has been drafted to address a specific legal loophole.

Do you agree that the first nations men and women living on reserves should not have to wait another 25 years for this legal gap to be closed? We need action on this now to protect the lives of women.