Status of Women Committee on May 7th, 2013

[Chief R. Donald Maracle]

We've made the federal government aware of the need to create some options for first nations to go into debt and pay the other partner off. Nobody is disputing that one party is not entitled to a financial settlement.

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

I'm glad to hear you say that.

Mr. Fiddler, how often have you consulted with your membership on this issue?

[Deputy Grand Chief Alvin Fiddler]

Thank you for asking that question.

You mentioned that 30 people attended a session a number of years ago. I think what you need to recognize is that there are 40,000 people right across the Nishnawbe Aski Nation, covering two-thirds of the province of Ontario.

I guess my point is that with the little bit of funding that the NAN Women's Council received a number of years ago, they tried their best to do it justice. But 30 people and one session is not nearly enough to do what we need to do here. I think we need real true consultations with our leadership, with our communities, and with the families, right across NAN.

As Jackie has mentioned, in order for us to do this, we need adequate time and adequate resources to do it right.

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

I have to say that our government has made many consultations in the last years. We have had 103 consultations, at a cost of $8 million, so we have met with your people. I was just wondering how well consulted your own members were and whether they are truly aware of the factors in Bill S-2.

When I talk about the facts of Bill S-2, I point to the bill, which says, “the best interests of any children who habitually reside in the family home, including the interest of any child who is a First Nation member to maintain a connection with that First Nation”. That is very important to your people. I realize that.

Another factor is the financial situation and the medical condition of the spouse or common-law partner. That's an important factor that's under consideration in this bill, as well as the availability of other suitable accommodations situated on the reserve. Someone also mentioned that sometimes there are elders who live in those houses, and that is a factor that's brought up in here as well. It says “the interests of any elderly person or person with a disability who habitually resides in the family home and for whom either spouse or common-law partner is the caregiver”.

Now, I taught on a reserve for four years prior to becoming an MP, and I realize those situations exist, but I do feel—

[The Chair, NDP, Lysane Blanchette-Lamothe]

You have one minute, Madam O'Neill Gordon.

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

—that these facts are very important. These are only a few of them.

I'm wondering what you think about these factors being included in this bill now.

[Deputy Grand Chief Alvin Fiddler]

Are you asking me?

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

I'm sorry. Yes.

Alvin Fiddler.

[The Chair, NDP, Lysane Blanchette-Lamothe]

A short answer, please.

[Deputy Grand Chief Alvin Fiddler]

Thank you.

I think this committee needs to recognize the condition in our communities, the lack of housing, the lack of elders' homes, and the lack of emergency shelters for women and children. I think that's the reality in our communities.

I think my question to this committee would be, how seriously have you taken the consultations and the reports that you have received? I know my colleague Chief Maracle mentioned Wendy Grant-John's report and her recommendations. Are they reflected in this bill as it is now?

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Mr. Fiddler. The time has expired.

I'm now turning to Madam Bennett for seven minutes.

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

Thank you very much, Madam Chair, and thank you, Deputy Grand Chief and Ms. Fletcher, as well as the chiefs.

Reflecting on what Ms. Tilly O'Neill Gordon has said, I think it speaks to how this government has drafted a bill and simply doesn't understand the situation. Some of the grandparents that Chief Maracle was referring to in a house with 12 people, some of those grandparents may be 40 years old. They don't fit into the elder-infirm category. These are people who have been helping raise families.

I think, because the government doesn't understand that consultation means a two-way communication—send and receive—and because the government has refused to listen to Wendy Grant-John or to any of the overwhelming negative responses to this bill, and because of the debacle last week, to those of us on this side who have had experience on the Committee for Aboriginal Affairs and Northern Development it's very clear that sending a bill of this complexity to this committee that has no experience with legislation and no experience, expertise, or even cultural sensitivity to first nations, Inuit, and Métis people in Canada. Therefore I would like to move this morning:

That the Committee recommend to the House of Commons 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 referred to the Standing Committee on Aboriginal Affairs and Northern Development, and that the said committee report its findings to the House.

I don't think we can go on to clause-by-clause with this continual failure to listen to what's been said in terms of how this has to be. I don't care how much money you've spent on consultation. If you have not listened, it makes absolutely no sense that this wasn't done properly. Wendy Grant-John was very clear that without the non-legislative tools in place, this will not solve this problem.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you.

Ms. Bennett has just introduced a motion that is now open for debate.

I invite the members to speak to the motion. We will vote afterwards. I would ask our witnesses to be patient while the committee deals with the motion.

Ms. Crowder, the floor is yours.

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

Thank you, Madam Chair.

I know that Chief Maracle, in his opening remarks, pointed out that this bill is before the wrong committee, and I would completely support Ms. Bennett's motion.

At the aboriginal affairs committee, we’ve just finished studying a private member’s bill that included a section on wills and estates. It became very clear—and this relates directly to matrimonial real property—that taking into account the very complex land codes within first nation communities, the matter of wills and estates needed further study. With regard to matrimonial real property, it's very clear that we're not dealing with fee simple lands. We're dealing with custom allotment. We're dealing with certificates of possession. We're dealing with a variety of mechanisms around lands that do not simply mean that when there's a marital breakdown, person A stays in the house and person B goes somewhere else.

That is an important factor when we're talking about matrimonial real property.

Madam Chair, when David Langtry, the acting chief commissioner of the Canadian Human Rights Commission, came before this committee, he indicated that there were three questions this committee should be considering. One is fair access to justice, one is ability to access rights in a safe way, and a third one is whether communities have the capacity they need to develop and implement their own matrimonial real property systems. I would argue that all three of those questions need to be dealt with at the aboriginal affairs committee because the aboriginal affairs committee has a much broader perspective on the complexities facing first nation communities.

One matter that came up at the aboriginal affairs committee when we were talking about Bill C-428 was the issue around custom adoptions. Now, I haven't heard anybody talk about custom adoptions. When provinces are going to be dealing with allocating who gets to stay in a home when there is a marital breakdown, how are they going to deal with custom adoptions? Many provinces don't recognize the first nations’ tradition of custom adoptions, so what would happen in such a case?

Chief Montour, Deputy Grand Chief Fiddler, Chief Maracle, Chief Abram—all of you have talked about the lack of resources. At the aboriginal affairs committee, I can tell you we're well steeped in hearing testimony from people about the lack of resources for housing, the lack of resources for education, the lack of resources for water, and the lack of resources for policing.

Deputy Grand Chief Fiddler, I know your communities have been struggling with issues of policing now for a long time, but it has been very prominent in the media over the last number of weeks because of that lack of resources for policing in your own communities.

We hear the government say that what's going to happen is that by passing Bill S-2, miraculously, somehow or other, people in communities are going to be protected. Well, who's going to enforce those protection orders? Where's the community going to get the resources for alternate dispute resolution and mediation? Where's the community going to get the resources for legal aid? Where's the counselling when families need help? Perhaps they could resolve issues with appropriate counselling. Where are those counselling dollars going to come from? How are the chief and council going to deal with the fact that there are such severe housing shortages?

As Deputy Grand Chief Fiddler and Ms. Fletcher pointed out, there could be 13 or 14 people living in a house. What happens if the custodial parent, the woman, is living with the husband whose whole family lives in the house? Now we're going to say, okay, the woman now has the house. Does that mean the grandparents have to move out because they're the parents of the young man?

This act has been touted by the opposition...I mean the government—opposition I could only wish. The government has indicated that this act will deal with violence against aboriginal women. I want to thank Chief Maracle and Chief Montour and others for rightly pointing out that aboriginal men, first nation men, are not violent by nature. When we're talking about marital breakdown, we're talking about the stressors of poverty and a lack of access to resources that complicates families in a way that many Canadians simply don't face.

On the issue of violence, Bill S-2 mentions family violence—not violence against aboriginal women, but family violence—eight times in this act, and it does nothing, absolutely nothing to deal with the factors contributing to family violence.

We saw in the past as the Aboriginal Healing Foundation funds sunsetted, which could deal with the intergenerational traumas that resulted from residential schools, for example, that money has disappeared.

So when you want to talk about what's happening and where this bill should rightly be it should absolutely be before the aboriginal affairs committee. I would support the calls that have come in from certainly the chiefs who are before us today, but many other chiefs and community members as well, about the duty to consult and accommodate.

It isn't just going out and self-selecting a number of communities, it is about that duty to consult, that free, prior, and informed consent that's been outlined in the UN Declaration on the Rights of Indigenous Peoples. So I certainly would encourage all members to vote in favour of Ms. Bennett's motion and have this bill dealt with appropriately at the appropriate committee.

Thank you, Madam Chair.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Ms. Crowder.

Ms. Truppe, you have the floor.

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

Thank you, Madam Chair.

I move to go in camera.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Ms. Truppe proposes that we go in camera. This motion cannot be debated. So we are going to proceed with the vote.

[Niki Ashton, NDP, Churchill, MB]

I call for a recorded vote.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Certainly.

Madam Clerk, I will let you proceed.

[Marlene Sandoval, Procedural Clerk]

I will start on the government side.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Just so that everyone understands, the motion that you are voting on asks that we go in camera. The motion cannot be debated. As a result, we are going to vote. If you say “yes”, that means that you wish to go in camera. If you say “no”, that means that you wish the public proceedings to continue.

We will now move to the recorded vote. Madam Clerk, you may proceed.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

(Motion agreed to: yeas 7; nays 4)

We will therefore move in camera.

My apologies to all the witnesses and guests who are here. I must ask you to leave the room until the committee decides to resume the public proceedings. At that time, you will be able to come back, if we still have time.

Let me point out that the first hour is up.

My thanks to the witnesses for being here today. Chief Montour, Chief Maracle, Chief Abram, Ms. Fletcher and Deputy Grand Chief Fiddler, thank you for appearing before the committee.

So we are going to ask all of you to leave the room so that we can go in camera.

[Proceedings continue in camera]

[ Public proceedings resume]

[The Chair, NDP, Lysane Blanchette-Lamothe]

We will now welcome the following witnesses: Viviane Michel, President of Quebec Native Women, and Joanne Ottereyes, Legal and Policy Analyst for the same organization. Thank you for joining us today.

Also joining us is Ellen Gabriel, as an individual. Thank you very much for being here today.

The representatives from Quebec Native Women will have 10 minutes for their presentation. I will interrupt you if you are running over time.

Madam Gabriel will have 10 minutes for her opening remarks. We will then go to questions and answers.

Ms. Michel and Ms. Ottereyes, the floor is yours. You have 10 minutes.

[Viviane Michel, President, Quebec Native Women]

[The witness spoke in her native language]

Good afternoon, everyone.

Thank you, Madam Chair.

I would like to thank the committee for this opportunity to express our concerns about 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.

Quebec Native Women has repeatedly expressed its concerns about this issue. We would like to provide you with our comments and recommendations on the latest version of the bill.

Bill S-2 is supposed to remedy the legislative gap that exists for first nations couples living on reserves after the break-up of the relationship or the death of one of the spouses. That includes the division of property and matrimonial rights or interests. However, the bill, in its present form, does not fully address the issue of matrimonial property and will not fully protect those who are most vulnerable.

I would like to highlight some factors that contribute to the complexity of this bill that, at worst, will create more problems for aboriginal women and children than it will solve and, at best, it will be wishful thinking only bringing temporary solutions to vulnerable women.

First, although we commend the government’s efforts to enable first nations to develop their own matrimonial real property code consistent with their own traditions and customs, the bill does not take into account the jurisdiction of first nations over reserve property and their right to self-determination as it grants jurisdiction to provincial courts for enforcement. As a result, a provincial court will be imposing on communities the use of their own lands. In addition, if they do not develop their own code, the proposed legislation establishes federal laws that will be imposed on first nations. Even if first nations have an opportunity to create their own laws, it will only be a form of delegated authority.

Second, aboriginal women’s groups have been asking all along that additional resources be provided so that first nations communities can both develop and enforce their own laws. Yet no funding or resources will be provided to first nations to access those provincial courts, which will therefore be too costly or complex for them in a number of cases. We are carefully watching the government’s intent to establish a centre of excellence for matrimonial real property, which could assist idle communities in drawing inspiration from established best practices, but will not force them to use those practices, nor will it provide assistance to all the communities across Canada.

According to the website of Aboriginal Affairs and Northern Development, a maximum amount of just under $5 million over five years will be earmarked for the centre. That corresponds to six full-time employees for five years helping 500 aboriginal communities across Canada to develop their own legislation. Not only does that seem like an impossible feat given the remoteness of the communities and the lack of human and financial resources within many band councils, but it also means postponing the detected implementation problems to the medium term. Supporting the development of those new family codes is a good idea if resources are also provided directly to the communities so that they can develop their own matrimonial real property laws.

Third, we want to ensure that minimum standards for the protection of aboriginal women are observed and that the following factors do not penalize women and their abused families or families affected by grieving or separation: exclusive membership codes, lack of housing, lack of legal resources and assistance within communities, as well as a different legal system.

From my experience as a first responder, the best resources to help aboriginal women are those that are culturally adapted and easily accessible within their own communities. Aboriginal women’s groups and their communities must work together in order to develop a fair and equitable system that is based on cultural traditions and customary law. Consideration should also be given to setting up multi-tier aboriginal mediation systems and other practices or aboriginal legal and decision-making systems for matrimonial real property. There also has to be a recognition of the systems that are already in place.

Bill S-2 proposes a solution based on the common law of the federal system without considering the legal provincial diversities. In fact, this bill is asking provincial courts to implement a common law system to handle family law disputes and, as a result, to adapt to a number of legal systems, including the system implemented by various nations and communities, if applicable. The Civil Code of Québec does not grant the same rights to spouses and common-law partners. However, the opposite would be true for provisional laws.

Another consideration is having a judge who is familiar with the Indian Act. It becomes a very complex situation. Also, the bill would not protect aboriginal women living in communities governed by specific treaties such as the James Bay and Northern Québec Agreement, as well as the Northeastern Québec Agreement that brings some specific features to the Cree and Naskapi territories. In its present form, the bill will probably have no legal impact on the Cree and Naskapi communities and they will have to make laws so that matrimonial real property matters can also be incorporated in their own legal system. That is another legal framework that needs to be considered in the province of Quebec.

Since the rights and recourses by provisional federal rules will be handled by various provincial, federal and aboriginal legal systems, the federal government should conduct further analysis to determine whether this situation has an impact on Quebec’s aboriginal communities and, if that is the case, to establish what the consequences would be. Ultimately, what makes aboriginal women vulnerable currently in cases of separation or domestic violence is the lack of housing and the non-settlement of land claims for all aboriginal nations across Canada. This type of settlement would enable communities to address the demographic pressure on their people and their needs for economic development. This is how the Harper government must do its part if it wants to help aboriginal women escape violence.

Bill S-2, in its present form, does not address this main concern. Furthermore, by refusing to take it into consideration, all it does is send the problem to the provincial courts and band councils. The unilateral approach taken by the government to resolve this issue through legislation will also fail to address systemic problems. The lack of resources, particularly the lack of housing in the communities, will be challenging, and so will the implementation of some provisions regarding the forcible removal of a spouse who will not easily find alternative housing in the community.

In addition, there is also an issue with public safety in the communities. The lack of human and financial resources in the police forces will make it difficult to effectively enforce emergency protection orders. We appreciate the changes to improve the bill, especially the 12-month transition period, but we note that it is a short transition period given that the legal framework being set up in the communities is not good.

Let's talk about family rights. Not all communities are in the same place. They do not have the same human and financial resources to establish this regulatory framework and then implement it.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Ms. Michel, I am sorry to interrupt you, but you have 10 seconds to conclude, please.