Madam Speaker, I would like to speak in support of Bill C-49 and address a number of important questions that have arisen as a result of the question of matrimonial property, an important and legitimate question.
As members are aware, the bill ratifies a framework agreement that will provide 14 first nations with authority to manage their lands at the community level and to pass laws for the development, conservation, protection, management, use and possession of their land.
The bill is a good bill, one which gives first nation communities control over their future, provides new opportunities to work with neighbouring communities, and creates jobs and growth both on and off reserve. It is above all a bill that arises from the desire and the will of the 14 nations participating in this process.
As hon. members know, matters involving changes to the Indian Act and the provisions of new powers and responsibilities for first nations can be very complicated and, as we have seen here today, complex. The complexity has become more apparent in the past couple of years as the framework agreement took shape and began to elicit discussions among first nations. What is inspiring about this process is the capacity for first nations communities to find ways to resolve issues that have arisen.
No one is suggesting that the federal government step in and resolve issues on their behalf. We seek instead to provide a legislative framework in which the communities can get on with the task of running their own lives.
A good example concerns how matrimonial property will be dealt with in the case of matrimonial breakdown. The signatory first nations will be at the forefront of this issue. They have agreed to tackle an issue that today the government is grappling with: how to address the legislative gap respecting matrimonial real property on an Indian reserve. This is a complex legal issue that must be resolved in the interest of fairness and equity. I am glad to see that the first nations agreed to this process.
Let me outline for the House the nature of this issue and the steps that are proposed to be taken to resolve these important questions. In the Derrickson v Derrickson case the Supreme Court of Canada highlighted this issue very succinctly for us. Here was a case where matters respecting matrimonial property were challenged before the courts. This case provided clear direction respecting reserve lands and access to marital real property rights.
The supreme court ruled that provincial laws respecting the division of matrimonial property assets in cases of matrimonial breakdown applied except to interests in reserve land. Reserve land being within federal jurisdiction, provincial laws respecting use, occupation, possession and division of an interest in cases of matrimonial breakdown are not applicable to interests in reserve land.
In March 1997 the British Columbia Native Women's Society and two individual plaintiffs mentioned the framework agreement in a suit launched against the government in the Federal Court of Canada. The plaintiffs claimed that the federal government failed to fulfill its fiduciary obligations to married Indian women with respect to the division of matrimonial real property upon the breakdown of marriage.
As hon. members are aware, division of matrimonial property, and I know that some across the way do not know this because they argued contrary to that only a few moments ago, falls within provincial jurisdiction. The provinces apply the principle of division of matrimonial assets on an equal basis. However, reserve lands are held by Her Majesty in trust of the crown for the use and benefit of the band. Provincial laws therefore cannot be replicated in their entirety on the reserve lands.
At the federal level there is no provision in the Indian Act regarding the division of matrimonial property in the event of a marital breakdown. Non-band members and non-aboriginal people cannot hold an interest in first nations land, nor can they reside there without the permission of the first nation council or the community. That has been in the Indian Act and understood.
Where a lawful interest has been granted to an Indian member of the band, this interest cannot be reassigned unless the individual agrees to the transfer. In addition the transfer cannot be made to the band or another Indian member of the band.
In the case of Derrickson v Derrickson at the supreme court, the courts provided that compensation can be provided for the reserve assets which cannot be divided. The end result is that the assets are still divided equally between spouses. However, there is no access to an order transferring the matrimonial home or interest in reserve land, the same order that would be available outside a reserve to a woman or a man going through a marriage breakdown.
Hon. members will appreciate the problem. The 14 first nations want to get out from under the land management provisions of the Indian Act. Provincial laws respecting property cannot be applied. There must be a solution to resolving how to divide the matrimonial property that both will be equitable and respectful of the capacity of first nations to come up with a system that is in keeping with the values of their own community.
First nations are seeking the authority to develop solutions that fulfill the needs of their communities and the interests of equity. The 14 first nations and Canada have amended the framework agreement and the bill before us to address the issue of matrimonial property on first nations land.
The signatories have agreed to address these issues of property rights in the framework agreement and the bill before us today. Under Bill C-49 and the framework agreement the signatory first nation must, not should, shall or may, but must establish a community process that will develop rules and procedures within 12 months from the date the land code takes effect.
The rules and procedures cannot discriminate on the basis of sex and include a process of arbitration should the first nations not meet those criteria. That would provide sufficient, broad based and complementary protections to those offered in the charter that of course apply in this particular piece of legislation. It has to be done in 12 months. It cannot discriminate. More importantly in that process, even if the women in a particular community vote in a way that makes others unhappy, there is an appeal process that is allowed both in the framework agreement and the bill. That allows those who are grieved to seek redress properly if they so choose within the context of that agreement.
According to the bill before us, extensive consultations must be undertaken during the development of the land code to inform and seek the opinions of the community membership. First nations have given strong assurances that as part of their first nations community process they will solicit the input of all on and off reserve members of their community, including aboriginal women. Nothing precludes a community from addressing the issue at the beginning of the process. The important point is that the community decides when and how it will address these issues.
A dispute resolution mechanism will be available to both Canada and the individual first nation members. I repeat that individual members can also challenge the rules before a court. Yes, before a court.
There is a larger issue at stake here, one that goes beyond the 14 first nations that have ratified the agreement. What can be done to resolve the current vacuum concerning the division of matrimonial property in the Indian Act?
Last June the Minister of Indian Affairs and Northern Development announced that she was prepared to work in partnership with these groups in establishing a fact finding process with respect to the Indian Act. This process will examine the effects upon breakdown of a marriage on first nations members' rights to real property such as land and homes. Federal officials are now working toward the conclusion of this process.
The government is committed with those member bands who have agreed to sign on to this process to work with them fairly and equitably with redress to the courts, the normal appeal processes, the provisions of the charter, all of which will apply to protect the legitimate rights of aboriginal women in Canada today.