moved:
Motion No. 2
That Bill C-49, in Clause 6, be amended by replacing line 14 on page 5 with the following:
“(d) any other relevant matter set out in section 17(2.1).”
Motion No. 3
That Bill C-49, in Clause 17, be amended by adding after line 43 on page 9 the following:
“(1.1) The general rules and procedures must provide for benefits, rights and privileges of the parties in cases of breakdown of marriage, that are at least equivalent to those set out in subsection 17(2.1).”
Motion No. 4
That Bill C-49, in Clause 17, be amended by adding after line 5 on page 10 the following:
“(2.1) Until the general rules and procedures are incorporated into the land code or a first nation law containing the general rules and procedures is enacted under subsection (2) the following provisions applies:
(a) Each spouse in a marriage is entitled to an individed one half interest in the matrimonial home and the certificate of possession, notice of entitlement, notice of entitlement issued, or such other evidence of entitlement to possession of the land upon which sits the matrimonial home as may exist from time to time when
(i) a separation agreement;
(ii) a declaration by the court on the application of either party that the parties have separated and there is no possibility of reconciliation
(iii) an order for dissolution of marriage or judicial separation; or
(iv) an order declaring the marriage null and void respecting the marriage is first made.
(b) An interest under paragraph (a) is subject to a marriage agreement or a separation agreement.
(c) This section applies to a marriage entered into before or after this section comes into force.
(d) A “matrimonial home” is a home on reserve and the land on which it sits, in which one or both spouses has an interest and which has been ordinarily used by a spouse or a minor child of either spouse as a home within the two years before the date of an application under this section.
(e) For the purpose of this Act, a “marriage agreement” is a written agreement made before a marriage between two people which deals with real or personal property and/or maintenance between them during and on breakup of their marriage. The separation agreement must be signed by each party and witnessed by an adult person who is not related to either party.
(f) For the purpose of this Act, a “separation agreement” is a written agreement made between two spouses who have separated from each other, which deals with real or personal property and/or maintenance between them during and on breakup of their marriage, and in particular which deals with the right to occupy or to divide the matrimonial home. The separation agreement must be signed by each spouse and witnessed by an adult person who is not related to either spouse.
(g) An order under this section is for may be for interim relief pending determination of the rights to the property of the spouses by agreement or by a court having juridiction in those matters; or the order may be a final order.
(h) On application, the court may order that one spouse for a stated period be given exclusive occupancy of the matrimonial home.
(i) An order under paragraph (g) does not authorize the spouse to materially alter the substance of the matrimonial home unless it is a final order which gives the spouse exclusive sole ownership of the matrimonial home;
(j) Subject to paragraph (i) a right of a spouse to exclusive occupancy or use ordered under this section shall not conunue? after the rights of the other spouse or of both spouses, as owner or lessee are terminated.
(k) Where an order for exclusive occupancy or use has been made under this section, the Court, on application, may order that the rights of a spouse to apply for partition and sale or to sell or otherwise dispose of or encumber the property be postponed and be subject to the right of exclusive occupancy or use and may, in its order, vary the order made under this section.
(l) The Court may, on application, make an order for partition and sale of the interest of the spouses in the matrimonial home. Any such order for sale is subject to the limitations on ownership of the reserve land established from time to time by the band council.
(m) A band council shall issue a band council resolution entitling a spouse to exclusive occupancy of the matrimonial home upon presentation of a copy of an order under this section or a validity executed marriage or separation agreement.
(n) A band council shall issue a band council resolution transferring an interest in the matrimonial home to a spouse in accordance with an order under this section or a marriage or separation agreement upon presentation of a copy of the order or a validly executed marriage or separation agreement.
(o) A band council shall take all necessary steps to facilitate the sale of the spouses' interest or interests in the matrimonial home, and shall issue any band council resolution required to give effect to a sale completed after an order for partition and sale under this section.
(p) A court may, on application, order that while the spouses continue to live separate and apart, one spouse shall not enter premises while the premises are occupied by the other spouse or a child in the custody of the other spouse, whether or not the spouse against whom the order is made owns or has a right to possession of the premises.”
Motion No. 5
That Bill C-49, in Clause 20, be amended by replacing line 39 on page 11 with the following:
“land; and
(f) the general rules and procedures, in cases of breakdown of marriage, respecting the use, occupation and possession of first nation land and the division of interests in first nation land.”
Madam Speaker, I was a bit worried that this group of motions could not be considered today, because they have been the focus of many representations from native women's groups.
Representations were also made to the parliamentary committee. The British Columbia Native Women's Society met with us, as did the National Native Women's Conference, of which Marilyn Buffalo, to whom I pay tribute, is a member.
At the time, the view was that, in a first nation, it was the band council's right to decide. Those who came to testify during consideration of the bill by the committee seemed to say that their respective communities had been fully consulted. There were even petitions from women's groups saying that the bill was excellent and should be passed as written.
However, following consideration of the bill by the committee, many other representations were made, in particular by Quebec's native women. Finally, the Bloc Quebecois decided to intervene.
There is an important point, I believe. I mentioned it earlier. The Indian Act, which is over a hundred years old, contains no provision for marriage breakdown. This means that, when a marriage breaks down on a reserve, the man can often order the woman out of the family home. The woman is simply kicked out and obliged to find shelter elsewhere.
Contrary to provincial legislation, there is no provision for the protection of matrimonial property or its division. There is absolutely nothing. It is a complete legal vacuum.
So the women started to show an interest in this issue. They came to meet us, telling us that perhaps some amendments ought to be moved.
The 14 first nations are the pioneers as far as settling this issue is concerned. As the act states, the 14 first nations are to prepare a property code, but where marriage breakdown is concerned, they have 12 months to include arrangements for settling this matter in their respective codes.
Our problem, however, is that during those 12 months no application will be possible, that is to say the legal vacuum will continue. Hence the importance of our introducing an amendment which will cover that 12 month period.
Looked at overall, this is a major problem for Canada. There are no provisions at the moment, and if the proposed amendments are accepted, they will settle the matter for 14 first nations in Canada, whereas there are 600 in all. The underlying issue must therefore be settled. Will there be an amendment to the Indian Act? Will there be special legislation? This could always be looked into.
The minister had clearly understood the dynamics and knows there is a legal vacuum. In June of last year, she decided to set up a focus group. In June 1998, she told a group of British Columbia native women “I am going to set up a focus group so that you can cast some light on the issue for me”. To our great surprise, confusion and disappointment, not one thing has been done to date. No one has been appointed. The matter has not been given the importance it deserves.
The Bloc Quebecois is therefore obliged today to introduce amendments today to include provisions in the bill so that, in these 14 first nations, when a couple faces problems and the marriage breaks down, various questions can be answered, including: What will happen exactly to the family home? What happens to the family heritage? How will the basic question be resolved, as the provincial laws provide?
That is where the problem lies. That is related to the decision in the Derrickson case. I cannot remember the year, but it is fairly recent. This lady went to the supreme court to have the matter decided, and the court said simply “Madam, there is no provision in the Indian Act to protect you”.
Therefore the legal void has existed since then, and the government has, unfortunately, not corrected the situation. There is also some danger if this problem is not solved in general terms. This is what native women have said. They have said “Every time a bill on economic matters or management matters comes before the House of Commons, we are going to ask you to introduce amendments”. I think it is important therefore to resolve the matter in its entirety and not piecemeal.
Every time a native bill comes before the House, there will likely be serious representation from native women. They will say “You will introduce amendments to the bill to remedy this legal void that has existed now for 100 years”.
The Bloc Quebecois said “We will introduce amendments, even though we know the basic issue is not settled”. We have already questioned the minister on the issue generally. We will also continue to ask the minister what is going to be done about this problem, which may well get worse over time. There will soon be legislation with respect to the Nisga'a, to water management in Nunavut, to a host of problems that could end up with native women demanding amendments because they have been overlooked.
The situation could get very difficult in the weeks, months and years to come, unless the underlying issue is resolved.
I also wish to pay tribute to the 14 first nations who were the groundbreakers, as it were. It was they who pointed out that there was a problem, even though they were going to be allowed to govern themselves. They pointed out that the Indian Act would no longer apply, that they would be responsible for land management. But they realized that there would be a problem, that women were not protected. These people had therefore already done a very good study by the time they appeared before the committee.
However, there are still at least eight or nine first nations that have not finished examining the issue and have undertaken to do so in the next 12 months. We will have to take our lead from the work these people have done, because they are the first to look at the problem. One day, this will have to take in more than the 14 first nations. Otherwise, every time a native bill is introduced in the House, it will be held up by those who want amendments introduced to deal with the issue of women's rights.
The situation is clear, and I would like to draw it to the attention of members opposite. They could perhaps test the feasibility by starting with this bill. Once again, the provisions before us today cover only the 12 months in which women are still in a legal vacuum. After that, there is a mechanism in the bill providing for mandatory arbitration in the event agreement is not reached.
This means that the issue will go to arbitration and be resolved, but only for the 14 first nations, not for the 600 others, hence the importance of dealing with the problem today. I urge members to support these amendments and give these people another 12 months in which to give some thought to their land code and include provisions for marriage breakdown.
So as to avoid a 12-month legal vacuum, we will implement the provisions before us today, the amendments moved by my colleague, the member for Laval East, and myself.
I therefore urge my colleague to support these amendments. I am anxious to hear from them, even if time is running out, as the vote is at 6.15 p.m. I hope they will vote in favour so as to cover this legal vacuum for once and for all for these 14 first nations. For its part, the Bloc Quebecois undertakes to pressure the government to come up with a comprehensive solution to the problem.