Status of Women Committee on May 2nd, 2013

[The Chair, NDP, Lysane Blanchette-Lamothe]

Good morning everyone.

I call to order the 74th hearing of the Standing Committee on the Status of Women.

Before we begin, I want to see whether the members of the committee are in agreement to extend the meeting by 15 minutes, that is to say until 1:15 p.m., and share the time fifty-fifty between the two panels we will be hearing today.

I see that I have unanimous consent. Thank you very much.

I now turn to our first witnesses. First, on behalf of the committee, I want to apologize for having made you wait. The reality of the House being what it is, we were delayed because of votes. And so we are going to change our schedule a bit and grant 45 minutes to this panel we have with us today.

We welcome the Assembly of First Nations, represented by Ms. Jody Wilson-Raybould, who is the Regional Chief for British Columbia, and Ms. Karen Campbell, who is the Director of Research and Policy Coordination. We also welcome the First Nations Lands Advisory Board, represented by Mr. Robert Louie, who is the Chairman Chief of the Westbank First Nation, Mr. Austin Bear who is the Director for the Prairie region and Chair of the First Nations Resource Centre, and Ms. Leah Georges-Wilson, Director for British Columbia and Co-Chair of the British Columbia Summit.

Thank you for being here with us. Each group will have a maximum of 10 minutes for their presentation. We will then have a question period.

I now yield the floor to Ms. Wilson-Raybould, from the Assembly of First Nations.

[Jody Wilson-Raybould, Regional Chief, British Columbia, Assembly of First Nations]

Gilakasla. Good morning, members. Thank you for having me here.

My name is Jody Wilson-Raybould. I am the regional chief for British Columbia. I am appearing here today along with Karen Campbell from the Assembly of First Nations and as the portfolio holder for first nation governance.

I want to also acknowledge Chief Louie and my colleagues on the First Nations Lands Advisory Board who are here as well.

Let me turn to Bill S-2.

Canada's intention to enact legislation in the area of matrimonial property is of course not new. I have presented twice at the Senate's committee on human rights, once on Bill S-4 and now on Bill S-2. While Bill S-2 contains positive changes from previous iterations, the overriding concerns that I raised previously remain.

Before I discuss these concerns with the committee, let me first say that Bill S-2 should not be characterized as a bill dealing with women's issues and probably should not be before this committee, with all due respect to the members of this committee. This is because these matters are not simply women's issues. For my husband, who is in this room and who lives on our reserve, it is his issue as well.

It has also been suggested that some of those who have spoken out against the bill or are behind the opposition to it are somehow trying to prop up a system that is unfair and that benefits some at the expense of others. While there may be individuals who are content with the status quo, this is certainly not the case for me nor for the organizations nor for the chiefs I represent. We all appreciate that there is a legal gap in the Indian Act that needs to be filled. We all know that many citizens or their spouses may be left at a disadvantage when it comes to settling a divorce, when their spouse passes away, or when they seek access to the family home.

Our criticism of the federal government's approach in Bill S-2, as in other federal bills, is not of the intent to fix the problem but rather of the government's considering it acceptable to design our post-colonial governance for us. Our contention with Bill S-2 is not about the need to fill a gap in the law but rather about who is filling the gap and with what rules.

Family and divorce law, wills and estates, and land law generally are complex at the best of times. When applied on reserve and governed under the Indian Act, they become even more complex. When considered in the light of indigenous legal traditions and our challenges with decolonization, the issues become even more so. Ideally, matters such as matrimonial property rights and interests should not be considered in isolation from other areas of interrelated law but should rather be addressed comprehensively when our nations are rebuilding comprehensive governance reform and moving away from the Indian Act.

Having said this, I appreciate that the federal government wants to do something about filling the gap with respect to matrimonial property. This is not without risk, as the federal government is walking a legal tightrope by making laws in areas that many people, including legal scholars and our leadership, assume are a part of a nation's inherent right of self-government and are protected in Canada's Constitution. Also, it is doing so without our free, prior, and informed consent as articulated in section 19 of the UN declaration.

In the past, and despite its best intentions, I have called the government's current approach to legislation neo-colonial. I know others do not see it this way. There certainly seemed to be a number of conflicted senators, when I presented on this bill at Senate committee, who on the one hand wanted to fill the gap but on the other hand were concerned about being paternalistic. This work is not easy.

For our part, dating back to 2006 the AFN has coordinated a number of dialogue sessions with our first nation citizens on how to approach the division of matrimonial property. There were three main issues that came forward: one, recognition of first nations' jurisdiction; two, access to justice and dispute resolution and remedies; and three, addressing underlying issues, such as housing shortages and the lack of access to temporary shelters. These have since been reiterated in resolutions from our chiefs in assembly.

With respect to jurisdiction, the promise of rights recognition and reconciliation in section 35(1) of the Constitution should require, for legal certainty, the explicit recognition of first nations' inherent right of self-government as part of any legislative solution in which such powers are not delegated. This should include recognition of the full range of powers necessary to effectively govern matrimonial property. Bill S-2 goes part of the way in this direction by recognizing the jurisdiction of first nations to make laws in the area of matrimonial property. However, the bill is not optional and until such time as first nations exercise their jurisdiction, provisional rules designed by Canada will apply.

Under Bill S-2, one of the most significant changes between Bill S-4 and Bill S-2, and something that we requested, is that the provisional rules will not come into force for one year, giving our nations a chance to develop their own laws before the provisional rules apply. I note we had asked for a longer period of time.

Assuming the bill becomes law, it is our intention to do whatever we can to assist those nations that want to enact their own laws before the provisional rules apply, and if not by then, as quickly as possible thereafter. Unfortunately, in the absence of comprehensive self-government options, our nations will have the same challenges as Canada had in developing the provisional rules when trying to figure out how to fit the round peg of a matrimonial property law into the square hole of the Indian Act. These challenges include reconciling the system of land tenure under the Indian Act with the extralegal, the informal rules for customary interests in land that exist outside of the Indian Act, the challenges of wills and estates, and trying to harmonize a nation's law with applicable provincial family law that may be at play at the same time.

With respect to recognition of broader jurisdiction and implementing the inherent right of self-government, we will continue to develop and advocate our own comprehensive governance solutions that support our nations in moving beyond the Indian Act, not simply the piecemeal or stovepipe approach the government is currently following. Where our nations have made matrimonial property laws, they have done so either under a land code made in accordance with the Framework Agreement on First Nation Land Management or under self-government arrangements, where the various aspects of the law can be considered in the broader context of self-government.

With respect to the second point, access to justice, dispute resolution, and remedies, there is no question that figuring out the provisional rules, seeking an order and then enforcing that order, will be a challenge for many of our citizens. Seeking a remedy in court under Bill S-2, will, we believe, be more expensive than for persons living off reserve. Due to significantly lower levels of income on reserves, it will, therefore, be more difficult for many couples to access the new remedies. Legal aid systems across Canada are chronically underfunded and are not meeting current needs, let alone the future demand created by the potential adoption of this legislation.

The remedies with respect to the provisional rules rely on access to provincial courts. The general assumption of access to provincial courts is unfortunately not practical or realistic in many parts of the country. Furthermore, with respect to enforcement, the preliminary research we have uncovered shows a correlation between increased harassment and threats of violence against women who file for protection orders in instances where there are issues with their enforcement. We question the capacity and ability of such orders to be effectively enforced, particularly in remote communities with limited access to police services. A law—any law—is only as good as the ability to enforce it.

The problem of access to courts, and appropriate dispute resolution and enforcement generally, has been one of the impetuses for first nations to develop their own justice systems. It is important to empower our nations in doing this work themselves, particularly given the opportunity for success in enforcing their own laws. While Bill S-2 is explicit on the authority of provincial courts to hear disputes in relation to the provisional rules, it is not as clear with respect to the access to justice for first nations under their own matrimonial property laws, both with respect to the extent of the first nation's jurisdiction and how a first nation could rely on the provincial or federal courts to enforce its laws if it so desires.

The bill would have been stronger had these concerns we raised previously been addressed as previously discussed. At some point, we must tackle this issue. Pushing forward this legislation in absence of a more comprehensive approach—

[The Chair, NDP, Lysane Blanchette-Lamothe]

Sorry, Chief Wilson-Raybould, can you conclude in ten seconds, please.

[Jody Wilson-Raybould]

Certainly.

The third concern that was raised, a fundamental concern, looks to addressing the issues that lead to the situations in the first place, the underlying issues, which I can speak more about in questions.

In closing, I wanted to make note of the work that has been done by the Canadian Bar Association. It has made a number of recommendations with respect to this piece of legislation as it was then, Bill S-4. I would recommend that the committee consider looking at these and other recommendations.

Further, Bill S-2 can and should only be viewed as an interim step, which unfortunately may prove to have more limited benefits than its strongest advocates would suggest.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Chief Wilson-Raybould. I'm sorry I have to stop you here.

I'm turning now to the First Nations Lands Advisory Board. You have a maximum of 10 minutes, sir.

[Chief Robert Louie, Chairman, First Nations Lands Advisory Board, and Chief, Westbank First Nation]

Thank you, Madam Chair.

Honourable members of the committee, thank you for providing me, as chairman of the First Nations Lands Advisory Board, this opportunity to respond to Bill S-2.

The Lands Advisory Board is very supportive of aboriginal communities addressing the topic of matrimonial real property on their reserve lands. This topic has been a critical component of the Framework Agreement on First Nation Land Management from the beginning. In fact, to ensure that everyone would be aware of this opportunity for law-making with respect to matrimonial real property rights, we added clauses 5.4(a) to 5.4(f) in our framework agreement.

The Lands Advisory Board has more than 10 years of experience actively dealing with law-making for matrimonial real property rights on reserve. For example, since 2001, the board assisted 23 operational first nations in completing their matrimonial real property laws, 14 other operational first nations with drafting their matrimonial real property laws, and 30 developmental first nations with planning for their matrimonial real property laws once they have ratified their land codes.

The framework agreement signatories include the only first nations in Canada who presently have laws dealing with matrimonial real property on reserve that are enforceable in the courts. Furthermore, the framework agreement is the only existing mechanism that provides the signatory first nations with the opportunity to address matrimonial real property rights in unique ways, consistent with their own community policies and traditions. I can use as an example communities that choose not use the certificate of possession system as set out in the Indian Act. They must accommodate their own traditions and not someone else's view of what their traditions and customs ought to be.

I anticipate that the framework agreement signatories will be unaffected by the proposed legislation since most, and hopefully all, of our first nations will have their matrimonial real property laws in effect within three years after royal assent is given to Bill S-2.

The Lands Advisory Board is, nevertheless, concerned about the potential impact of the proposed legislation on the 68 first nations that are presently waiting to become signatories to the framework agreement, and the other communities across Canada. They are very likely to be caught up by Bill S-2 before they have the opportunity to sign the framework agreement.

Based on the Lands Advisory Board's experience and success with matrimonial real property laws under the framework agreement, we would make the following observations concerning Bill S-2.

With respect, the provisional federal laws will apply, by default, to most first nations, due to the challenges entailed in developing their matrimonial real property laws. Successful enactment of these laws by framework agreement signatories has invariably been the culmination of a multi-year, community-driven, consensus-building process addressing values, principles, practices, and procedures related to the governance and management of rights and interests in reserve lands.

Successful enactment of these laws by framework agreement first nations has always been a community-led priority and has required significant external legal and technical advisory support. It is unrealistic to assume that those first nations for whom land governance and management has not been given a priority will be able to expedite development of their own custom matrimonial real property laws in time to be exempt from the provisional federal rules. Community leadership will be sorely challenged in attempting to build a consensus reconciling their matrimonial real property laws and community customs with provincial laws of general application that also come into play in the event of separation and divorce. We know this can be done, but it takes time.

The complexities of these laws on reserves include the need to address and resolve a host of other local governance issues related, for example, to the appropriate balance between individual and collective rights, claims of rights to reside on reserve, housing policy, and distinctions between individual, common, and estate lands. Bill S-2 makes no provision to compensate first nations for the extensive and unavoidable legal and administrative costs entailed in development, enactment, and administration of their own, unique first nation matrimonial real property laws. This lack of resourcing will be fatal to the efforts of many communities to enact their own matrimonial real property laws. Essentially, Bill S-2 is not about community governance at all, because of this forced imposition.

Provinces may be reluctant to participate in adjudication under the provisional federal rules. Through experience with the Lands Advisory Board and the framework agreement, first nations have found provincial governments to be uninterested in assuming any roles with respect to monitoring, dispute resolution, and/or enforcement with respect to first nation land laws generally. Provincial governments cite concerns related to lack of capacity to accommodate the current workload of their judicial systems, uncompensated costs they would incur, and the risk of attracting liability. Bill S-2 does not address, much less resolve, these issues.

The impact of Bill S-2 may be much more extensive than has been anticipated. Canada appears to be working on the assumption that the primary focus of cases subject to the legislation will be a small subset of the 100,000 dwelling units on reserve for which formal land tenure arrangements are in place, pursuant to sections 20, 28(2), 53, or 58 of the Indian Act.

However, the provisional federal rules proposed in Bill S-2 open the door for provincial judges to interpret the definition of a family home, and for the subsequent accumulation of a body of case law that may interpret these laws very differently and more expansively than intended. The definition of a right or interest in a family home on reserve could well be extended through case law to include the right to occupy band-owned housing, which would have implications for housing policies and perhaps financial costs to first nations.

If this were to happen, many more cases could be anticipated. A provincial court could attach a monetary value to the right to occupy band-owned housing, free of rent or other charges, for the rest of the life expectancy of the occupants. The net present value of this stream of housing benefits, calculated like the net present value of an annuity, could amount to several hundred thousand dollars per family home, which would have to be paid to the departing spouse. In many cases, the alternatives of sale or sublease of the property would not generate the funds necessary to meet the award. Such precedents would create significant liabilities to be borne by either the first nation member spouse who retains the family home, or more likely in practical terms, by the first nation.

Based on the Lands Advisory Board's experience and success with the framework agreement, we respectfully suggest that the committee consider the following recommendations regarding Bill S-2.

I have six recommendations. Given the timeframe I will list the headings, and I'm certainly prepared during the answer period to go into more detail, Madam Chair, if that's proper.

The first recommendation, remove the mandatory timeframe and make Bill S-2 optional. The second recommendation, address first nations' jurisdictional concerns. The third recommendation, identify resources for first nations. The fourth recommendation, provide for a transitional first nations mandated agency to support communities. The fifth recommendation, apply the principles of proportionality and reasonableness. The sixth recommendation, respect freedom of contract.

Madam Chair, thank you very much. I wish I had more time to elaborate further, but perhaps I can during question period. I'm certainly going to be assisted by my very experienced colleagues here.

[The Chair, NDP, Lysane Blanchette-Lamothe]

I thank all of you for your testimony. We would certainly have liked to have more time at our disposal to hear more from you.

We will now move on to our question period.

Ms. Truppe, you have seven minutes.

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

Thank you, Madam Chair.

I'd like to thank you for coming today. It's important that we hear from you. I'm sorry we were late, but we had a vote.

I want to ask Chief Wilson-Raybould and Chief Louie for the record, have you read Bill S-2 in its current form?

[Jody Wilson-Raybould]

Yes.

[Chief Robert Louie]

Yes.

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

Thank you.

Chief Wilson-Raybould, I want to ask you this question too. Bill S-2 is about fairness, equity, and providing protections and rights for residents on reserves. We acknowledge that the bill is not going to, nor is it intended to address the broad issues of poverty or housing shortages on reserves.

We heard stories a couple of meetings ago from women who have lost their homes because the men were able to retain ownership, despite the fact that the woman had financed the entire building of the home and renovations. What would you say to these women who have gone to court to obtain ownership of a home they built, only to find it's not possible because the rules didn't apply on the reserve?

[Jody Wilson-Raybould]

Well, again, I would reiterate my earlier comments about the reality that this isn't simply a woman's issue. In my testimony, I did recognize that the intent is to fill that gap of which you speak. The reality is that it's one instance that you're speaking about, and the situations and the conditions on our reserves are very different.

Looking at the imposition of a law on our first nation communities is challenging at best. Certainly, in terms of moving forward and addressing and making social progress, it's fundamental for our nations to have an understanding of what those laws are, but most importantly, to be able to see those laws as legitimate.

The major concern here, as my friend Chief Louie articulated, is that there is an imposition on our first nations' governments in terms of this particular law when the provisional rules apply. The challenge here is to balance the intent—or what some have called the paternalism—against the empowerment of our own communities to address these issues themselves, based upon the reality that they know best in their communities how to do most appropriately.

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

Thanks.

Do you think that ensuring men and women have equal legal rights to the family home is the right thing to do?

[Jody Wilson-Raybould]

I think we all agree on equality. I will submit that certainly the provisional rules within this legislation don't address the issue in the comprehensive way in which it needs to be addressed.

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

Thank you.

Chief Louie, thank you for your comments on the bill. Our government understands that first nations are best placed to develop their own matrimonial real property laws that reflect the uniqueness of each first nation's tradition and that require only an agreement between the members of the first nation and the first nation's government.

Correct me if I'm wrong. I think you said that 23 had completed matrimonial rights, 14 were in process, and 30 were just starting. Refresh my memory about the 30.

[Chief Robert Louie]

Yes, you're correct on the first two. The 30 that we have are in the developmental phase and are having those discussions right now. We're assisting in that planning to be incorporated into their land codes, either now or within a one-year period.

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

That's great. Can you outline for us how some of your communities have addressed the issue of matrimonial real property in their own codes?

[Chief Robert Louie]

Yes, and I think we have some very good experience here at the table.

Again, each of the first nations is unique. There are no identical land codes, nor are there identical matrimonial real property laws, and each of the communities has a different situation. Some are band lands only. Some are a combination of band lands and certificate of possession lands. There is a mixture. Some have many non-native spouses or partners who reside in the community. Some do not.

There is quite a divergence in the occupation of homes on reserves and in the communities themselves, so each of the laws reflects that sort of difference. It's important that the community do that, because if a community is not considered in its diversity and you have one overall regime that covers everything, you could encounter problems. That's what we would fully suspect would happen.

Ideally, the situation is to have the first nation develop its own matrimonial real property laws, have it dealt with in the community, take into account all of the contingencies involved, and I think you're going to have a much better form of dealing with this issue.

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

Thank you.

What would you say has been the greatest challenge in supporting the FNLMA first nations in the development of their own matrimonial rights legislation?

[Chief Robert Louie]

I think the most significant thing is probably the timeframe. In our rules, when we adopted this and agreed to it, we felt initially that one year would be sufficient to develop these matrimonial laws. Through experience, we found that for many communities it simply wasn't possible. It takes a lot of community input and a lot of community meetings.

If anything, I would suggest that there be a longer timeframe, because you have elections that come into place with governing councils. Sometimes you have two years, sometimes three years, and for larger communities especially, there's a lot more communication involved. Even a one-year timeframe for us is a very short time, and some of our communities have not yet been able to finalize their matrimonial real property laws.

[The Chair, NDP, Lysane Blanchette-Lamothe]

You have 40 seconds.

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

Forty seconds, okay.

What has been the response from the first nations that have begun to be involved in this process? Have they begun to inquire, as a result of the experience, with other first nations? How are they determining what they're doing, or are you walking them through everything?

[Chief Robert Louie]

Well, we're finding that the first nations that developed matrimonial and real property laws have been very successful at the implementation. We've had very good results.

My colleague here, Chief Austin Bear, could certainly elaborate on that, if the committee wishes, because I think there have been some specific examples that might at least benefit the understanding.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Unfortunately, I must interrupt you.

Thank you, Ms. Truppe.

I will now give the floor to Ms. Ashton. You have seven minutes.

[Niki Ashton, NDP, Churchill, MB]

Thank you very much, Chief Wilson-Raybould and Chief Louie, for joining us.

Not only is it unfortunate that we had the votes, it's even more unfortunate that you don't each have an hour to present to us—and not just an hour but beyond an hour—because we realize that the concerns you're raising are not just key but that you also represent, certainly, in the case of the AFN, the stakeholders who are most impacted by Bill S-2. I'm very proud of the fact that our side expressed real opposition to the fact that there hasn't been enough time to hear from the key stakeholders.

I have a quick question. Will Bill S-2 save lives? Maybe we can start with Chief Wilson-Raybould.