Thank you, Madam Chair.
This particular clause is dealing with notice to councils and views of councils. It certainly is important to note that this will provide that the applicant send a copy of an application made under the act to the council of the first nation on whose reserve the family home or other matrimonial interests or rights are situated, except in the case of emergency protection orders, and that the council will be able to make representations. The provision requires the courts to take representations with respect to the cultural, social, and legal context, and the views of the council with respect to the granting of the order, into consideration when making orders.
There are a couple of points about this particular section. Certainly the question becomes whether councils will have the resources to actually intervene at the courts. Again, it's an ongoing issue that continues to arise throughout this piece of legislation.
I'll refer back to Wendy Grant-John's report again. One of the sections dealt with the fact of:
Ensuring resources are in place for the capacity building and institution building that are prerequisites for a functioning and comprehensive matrimonial real property regime (for lawmaking, land management, land and housing registries and dispute resolution mechanisms and processes).
The report, in its conclusions and recommendations, also pointed out that by putting this piece of legislation in place without those kinds of resources, “First Nations would be placed in a catch-22 situation—they would be held to the same standard as provincial governments but not have the resources and capacity to achieve it.”
As well, Madam Chair, it is important to note that the courts will be asked to take note of the cultural, social, and legal context. I referenced the UN Declaration on the Rights of Indigenous Peoples earlier, which pointed out that, under the UN declaration, “Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs”, and it goes on to also point out the judicial systems or customs.
In the tool kit that was provided, which the Canadian Human Rights Commission has developed in conjunction with first nations, it's interesting to note that one very important thing in this tool kit on dispute resolution is that they point out the four stages. Of course, this bill doesn't deal with these four stages. It points out that the four stages in developing a process are leadership values and principles; capacity building for development and engaging your community; developing your community's dispute resolution model; and implementation, monitoring, and continuous improvement.
The chiefs and councils will be able to make representations to the courts if they have the resources to do it. It would be interesting if they were able to actually go to the courts with a dispute resolution model that had been developed in conjunction with the community and present that as an option the courts might want to consider with regard to looking at the matrimonial breakdown and the division of property and whatever assets there might be.
Again, it's worrying that first nations simply may not have the resources, chiefs and councils may not have the resources, to undertake either that kind of intervention or the development of those alternative dispute resolution mechanisms.
Thank you, Madam Chair.