Status of Women Committee on May 21st, 2013

[The Chair, NDP, Lysane Blanchette-Lamothe]

I would like to call the 78^th meeting of the Standing Committee on the Status of Women to order. Welcome. We are back from our constituency week. It is nice to see you again.

Let me remind you that we have three experts here with us today to answer any questions we may have.

My thanks to the three of you for coming back to assist us in our consideration of Bill S-2.

Pursuant to the order of reference of Wednesday, April 17, 2013, 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 are continuing our clause-by-clause consideration of Bill S-2.

(Clause 42—Notice of order)

We are on clause 42.

Ms. Crowder, you have the floor.

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

Thank you Madam Chair.

There's been a bit of a gap since we last talked about this. I'm referring to clause 42, which states that under this act, except under section 19, the person in whose favour the order is made and so on must send, without delay, a copy of the order to the council of any first nation.

We've raised this issue in the past, and it has to do with first nations councils' abilities to have access to the resources not only to review orders but also to making the appropriate representations. As committee members will be well aware, in subclause 41(2), which we've already dealt with, the council can make representations with respect to the cultural, social, and legal context that pertains to the application, and to present it's views about whether or not the order should be made.

Once again we're dealing with the fact that it's fine to put in legislation that councils will have the opportunity, but the reality on the ground is that councils simply may not have access to the legal and financial resources.

The other issue is that some of these courts will not be close to reserves. The chiefs and councils and their legal representatives will need to travel to make those representations. Although the intent is appropriate in terms of their being able to make that representation, the reality on the ground of their being able to do that is a whole other question.

The other issue is that for first nations who already have the ability around law-making or who are already incorporating provincial law with regard to matrimonial real property, their experience in the courts has been less than successful. What they have discovered is that the courts often don't have understanding of the complexities of land codes on reserves. We've raised that issue in the past. The land codes on reserves are completely different from what we find off reserve, and it takes time and resources to educate the courts about what those land codes might be.

It's a complex matter, and the work simply hasn't been done to make sure that courts are up to speed on this matter.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madam Jean.

Does anyone else wish to speak to clause 42?

Since I don't see anyone, we will move to the vote.

(Clause 42 agreed to)

(Clauses 43 to 47 agreed to)

(Clause 48—Determination by court—interest or right)

[The Chair, NDP, Lysane Blanchette-Lamothe]

Does anyone wish to speak to clause 48?

Ms. Crowder, you have the floor.

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

Thank you, Madame Chair.

This clause concerns cases where courts will be looking at whether a spouse, a common-law partner, or survivor in the estate of a deceased spouse and so on has an interest or right in or to a structure or lands situated on reserve.

I keep re-emphasizing this point, Madame Chair, of whether the courts have an understanding of the complexity of land codes on reserve. We know that courts are going to be faced with collective interests. They are going to be faced with certificates of possession. We actually heard, in the other committee I'm on, other witnesses talking about the fact that in some cases with regards to certificates of possession there has been such complexity in determining who the actual land holder is. Sometimes there have been up to 10 people who may have had an interest in that particular property. So when it comes to the courts determining who is going to have a right or an interest, what resources are the courts going to have to be able to examine that matter?

We've discovered as well at the aboriginal affairs committee, where we've been dealing with land management issues on reserve, that there isn't a consistency in terms of how the title is registered. There have been some recommendations made and the aboriginal affairs committee has been seized with the issues around implementing a new land title registry system for reserves so that there is some consistency. But that doesn't exist at this point in time. So it's going to be quite a challenge for courts to determine how this interest or right can be assessed when they're evaluating matrimonial real property. This piece of legislation simply doesn't deal with those kinds of complexity. So it's very difficult to support that particular provision.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madame Crowder.

Does anyone else wish to speak to clause 48?

Since it does not seem so, we will move to the vote.

(Clause 48 agreed to)

(Clauses 49 to 51 agreed to)

(Clause 52—Enforcement of orders)

[The Chair, NDP, Lysane Blanchette-Lamothe]

Does anyone wish to speak to clause 52?

Mrs. Day, go ahead.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Madam Chair.

In terms of clause 52, I just wanted to say that we are in favour of granting this type of power to the councils. It is perfectly clear that the councils have jurisdiction over their own territory. However, I would like once again to draw the committee's attention to the fact that, without stronger legislative measures, without the necessary financial resources, we have reason to be seriously concerned about the actual ability of the councils to apply this power.

Madam Speaker, I am thinking of shelters, transition houses, women's centres and any legal aspects that must be put in place to be able to provide those services to the communities.

Thank you.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Mrs. Day.

Does anyone else wish to have the floor?

It seems not, so we will move to the vote.

(Clause 52 agreed to)

(Clauses 53 to 55 agreed to)

(Clause 56—Order in council)

Amendments to clause 56 have been proposed. The NDP submitted its amendment first. If Amendment NDP-1 is defeated, amendments LIB-4 and NDP-2 will also be defeated, since they follow logically from amendment NDP-1.

If the NDP wishes to introduce amendment NDP-1, the amendment that it submitted to us, we will debate it. Since the Liberals' amendment LIB-4 follows logically from amendment NDP-1, there will be no debate on amendment LIB-4.

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

Are you on clause 55 or clause 56?

[The Chair, NDP, Lysane Blanchette-Lamothe]

Clause 56.

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

We missed clause 55, I think.

Did we do clause 55? It must have been done pretty quickly.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Clause 55 has just been passed. We are now on clause 56.

Ms. Crowder, I see that you would like to have the floor.

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

Thank you, Madam Chair.

I'm moving an amendment NDP-1, which I believe everybody has a copy of it, that that Bill S-2, in clause 56, be amended by replacing lines 35 and 36 on page 43 with the following:

(2) in order to allow for the establishment of non-legislative measures, sections 12 to 52 come into force 36 months after the day on which section 7 comes

What we've discovered in other pieces of legislation is the need for ample time for first nations to develop their resources and to respond. I'd like to point out that in clause 55 of this legislation, first nations that are under the First Nations Land Management Act actually have a period of three years after the date of the coming into force. It brings into question why we would not allow first nations the three years to develop their own matrimonial property codes. We've heard the government speak about the fact that this legislation provides an opportunity for first nations to develop their codes. Realistically, one year is simply not enough time.

Here I want to refer back to the alternative dispute resolution tool kit that the acting commissioner on human rights referenced in his presentation. That tool kit laid out a very clear process for first nations to develop, for example, an alternative dispute resolution process. It's a complicated process. What it does is to call for full community involvement. One of the benefits it talks about in terms of this full community involvement is that it demonstrate that the community leadership is accountable and committed to continuous learning in the community, because as the first nations develop their matrimonial real property codes, it's an opportunity to develop education and awareness.

As well, the tool kit points out article 34 of the United Nations Declaration on the Rights of Indigenous Peoples states that:

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

It would seem there is precedent for this in an agreement that Canada has actually become a signatory to.

In the dispute resolution booklet they talk about the four stages to developing a community-based dispute resolution process: 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.

Now, Madam Chair, it would seem to me that having one year for the coming into force of this legislation to develop that framework around the stages of what has been successful in other communities around the dispute resolution process is simply not enough. If the government were truly committed to providing the avenue for first nations to develop their own matrimonial real property codes, I would argue that allowing sufficient time and resources to do that would be a responsible thing to do.

I'm encouraging all members to support my amendment to clause 56.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Ms. Crowder.

According to my list, it is Ms. Sgro's turn now. However, I see that she would like to yield the floor to Ms. Bennett.

Go ahead, Ms. Bennett.

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

We obviously have an amendment that is virtually identical and will support Ms. Crowder's amendment. We really do believe that all aspects of this bill require 36 months as a minimum, as we've heard from pretty well every witness who has been asked. The reality is that the centre of excellence won't be set up; it's not anywhere close to being ready.

I do encourage all members on the government side to support Ms. Crowder's amendment. It is essential to our showing that we've at least listened to something.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Ms. Bennett.

There are no other speakers on the list.

We will put the question now on amendment NDP-1 introduced by Ms. Crowder.

All those in favour of the amendment so signify.

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

Can we have a recorded vote for this? This is appalling.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Madam Clerk, I will let you proceed with the recorded vote.

Ms. James, it seems you have a question.

[Roxanne James, Conservative, Scarborough Centre, ON]

I just need clarification. Do two people from the Liberals vote on that particular question?

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

We haven't had the question yet.

[Roxanne James, Conservative, Scarborough Centre, ON]

I saw the hands go up and now I hear a request for a recorded vote. I don't know how that's working, since we've already voted.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Ms. James. The question on the procedure is relevant. Only one vote will be counted for the Liberals and it will be Ms. Sgro's vote.

Madam Clerk, please go ahead with the recorded vote.

(Amendment negatived: nays 7; yeas, 4)

[The Chair, NDP, Lysane Blanchette-Lamothe]

We will go back to the original clause 56.

Does anyone else wish to speak to clause 56?

It seems not, so we will move to the vote.

(Clause 56 agreed to)

[The Chair, NDP, Lysane Blanchette-Lamothe]

The clause-by-clause consideration is nearly completed. We will go back to the beginning and look at the short title as presented.

Does anyone wish to speak to the title? It does not seem so.

In that case, shall the short title carry?

(Short title agreed to)