[Witness speaks in Kanien'kéha]
Greetings to the chair, honourable members of Parliament, and my esteemed colleagues from the Quebec native women's association. This is at least the fourth or fifth time I'm presenting on this issue, in previous times as the president of the Quebec native women's association, so it is a great honour indeed.
As in the previous forms of this bill, several persistent omissions must be taken into consideration if there are to be real and long-lasting solutions to this problem. They first must be placed in context to understand the root causes of this injustice, which originates in the Indian Act and the impositions of colonial and patriarchal values.
I am compelled to note that the goal of this bill is the fair and equitable distribution of matrimonial real property for Indian women on reserves upon the dissolution of a relationship.
This bill should not profess to address the chronic issue of violence against aboriginal women. The issue of violence is best addressed through a national plan of action by Canada, its provinces and territories, and through cultural sensitivity classes on Canada's colonial history for judges, lawyers, members of Parliament, and politicians. It should include a genuine process of reconciliation that recognizes the negative impact of colonialism, the Indian Act, and the Indian residential schools system on indigenous peoples' identity, culture, language, traditional forms of governance, and how they have affected the roles and authority of indigenous women in their nations and communities.
A holistic view is essential if the issue of MRP is to be properly addressed by all levels of government, but in particular within aboriginal forms of governance.
High unemployment rates, lack of sufficient housing, a growing population, dispossession of our lands and resources, the imposition of paternalistic values and processes, outdated funding formulas, poverty, and social ills rooted in colonialism have for generations affected indigenous women's ability to enjoy their fundamental human rights.
There are several areas of concern regarding this bill, which include, one, the incorrect assumption that this bill was accompanied by a consultation process; two, the lack of inclusion of the Constitution Act of 1982, which protects and affirms the inherent and treaty rights of aboriginal peoples; three, the lack of resources for communities in implementation of this bill, and potential court orders supported by a weak implementation process, considering the situation of policing on reserves; and four, the non-legislative measures and lack of access to justice, in particular for those women living in remote communities, and the financial burdens placed upon these women, where homemakers rely on spouses for their incomes.
On the matter of consultation, I must state sincerely that there was none. While engagement sessions were given by Wendy Grant-John—her report came out in March 2007—and an explanation of the issue of matrimonial property was provided, with some discussion on suggesting solutions, even the ministerial representative's report noted that there has not been sufficient time to reach consensus.
While the government firmly believes that there were consultations, I must remind them that the ultimate duty to consult rests with the Government of Canada and its duty to uphold the honour of the crown. It is important to state that there were no consultations on the specific details and nature of Bill S-2 on matrimonial real property.
It is of significant importance to note that during any consultation process, the process of reconciliation must be included and is always ongoing in Canada's relationship with aboriginal peoples. As per the policy of the Government of Canada in its duty to consult, the crown also consults because it is legally obliged to do so. It must give effect to reconciliation and uphold the honour of the crown—the government's ability to adversely affect aboriginal treaty rights is restricted in this reality—and crown conduct must demonstrate respect for aboriginal and treaty rights.
In remote communities women rely on travelling courts. Women must often travel in the same vehicle as their ex-partner to attend court. Remote communities do not have easy access to legal aid. The financial burden placed upon women is cumbersome in their quest for a fair and just settlement.
Access to justice is challenging. With regard to financial compensation to their ex-spouse, should they try to negotiate a fair and just settlement, their measure of worth, of contribution made as homemakers, is not considered. This causes aboriginal women to experience more vulnerability and discrimination, as low-income women would not be able to pay their ex-spouses for the value of their part of matrimonial real property.
The issue of policing on reserves is also an extremely serious question. Provincial courts would only be able to provide temporary occupation orders for the home, and a lot of times police who are reserve police might have trouble implementing them if they're related to the persons involved. In Quebec common law, as Ms. Michel has stated, relationships are not recognized.
If harmonization with provincial and territorial laws was the goal in this bill, then a consultation process that also included the customary laws of indigenous peoples, along with their free, prior, and informed consent, should also have been considered. The trend for over 100 years is to go to Canada's courts if we disagree with Canada's decisions. Aboriginal peoples should not have to go to Canada's courts to protect their inherent and treaty rights.
Another important issue is that of membership codes, the criteria created by the Indian Act, and many times it uses blood quantum. Should a woman not be a member of the community, the woman will never have the right to own the home and its implements, thereby creating another gap.
Lastly, a centre of excellence should not be included since this was never a topic of discussion during talks with Ms. Grant-John. A centre of excellence is another example of the paternalistic attitude of government. It ignores the customary laws of indigenous nations and ignores the inherent rights and treaty rights. It seems to be another part of the aboriginal industry where badly needed funding for communities will be directed toward an organization isolated from the communities, instead of going to institutions damaged by the Indian Act such as our languages and cultures and traditional customs and governance, as well as more emergency shelters in the communities, which are essential to this process of reconciliation.
If the centre of excellence is to be created, it should not be headed or controlled by any aboriginal organization. Instead, it should have indigenous women academics, elders with traditional knowledge, and front-line workers with experience in domestic and institutionalized racism and abuse.
Like many laws before it, Bill S-2 fails to consider the realities of first peoples and their communities who lack the much-needed financial and human resources for its implementation. Bands are already pushed to their limits by outdated funding formulas, as stated by former Auditor General Sheila Fraser in her 2011 June Status Report, in chapter 4, “Programs for First Nations on Reserves”. She states, "Structural impediments explain the lack of progress on reserves". Ms. Fraser goes on to say substandard construction practices or materials, lack of proper maintenance, and overcrowding also contribute. Bill S-2 also does not accommodate the need for more land, nor the fact that in order to develop their own MRP codes, a band must already have been in or be in negotiations on their land.
Legislation that fails to consider the effects of colonialism and assimilation policies, like the Indian residential school system and the Indian Act, creates deficiencies in the promotion and protection of indigenous women's rights. In recent years, great accomplishments in the area of human rights, most notably regarding the collective and individual rights of indigenous peoples through comprehensive human rights instruments like the UN Declaration on the Rights of Indigenous Peoples, must be included in any remedies to injustices faced by indigenous women and their families.
Various human rights agencies, like the UN Permanent Forum on Indigenous Issues, have been created to reconcile past injustices experienced by indigenous peoples due to doctrines of superiority and colonialism, which regrettably still exist today in Canada. There is a movement forward to end the discriminatory practices perpetuated under Canada's Indian Act laws and policies. It behooves the Government of Canada to implicate itself wholeheartedly within the processes of reconciliation in all its dealings with aboriginal peoples. Canada must amend Bill S-2, listen to the voices of indigenous women and their communities, embrace human rights instruments, and repeal Bill S-2.
I guess my recommendations will come at a later time. Thank you very much for your consideration.
