Oh, he is a Tory? Apparently the Tories like this legislation as well.
Here is what Senator Ghitter had to say:
I am also very respectful of the comments you have made with respect to Senator Austin's comments and the need for more clarity on expropriation.
We support the amendments that Senator Austin has proposed. We also feel that there is a lack of clarity within the expropriation provisions.
It appears that Senator Ghitter is playing the minister's tune as well. He is not prepared to take her on, on the aboriginal women's issue. He is dancing to her tune. He is not prepared to take her on, on the issue of consultation. He is having a very nice conversation with the minister saying that they really appreciated her being there, that they really liked her words and that they agreed with the need for some clarity in the legislation. He was not prepared to deal with the hard issues. We can see that this very mutual adoration society, I suppose, continues ad nauseam through this entire process.
For the benefit of my colleagues, because I do not want to put them through much more of this kind of painful experience, I will go on to talk a little bit more about the presentations that were actually made by the presenters as opposed to the senators. I think members might hear a slightly different tone and a slightly different set of concerns. I can assure members that it was not a mutual admiration society when these people were presenting.
I will start with Mrs. Marilyn Buffalo, who is president of the Native Women's Association of Canada. She attended an evening session of the Senate standing committee on April 27 and presented the position of her association very clearly. She said:
I wish to thank you for providing the native women of Canada with the opportunity to give you a presentation here this evening. As a non-profit organization incorporated in 1974—25 years ago—the Native Women's Association of Canada is an aggregate of native women's organizations and is an association that is formed like a grandmother's sacred lodge. In this grandmother's lodge, we, as aunties, mothers, sisters, brothers, relatives, collectively recognize, respect, promote, defend and enhance our native ancestral laws, spiritual beliefs, language and tradition given to us by our creator.
The Native Women's Association of Canada is founded on the collective goal of enhancing, promoting and fostering the social, economic, cultural and political well-being of First Nations and Metis women with First Nations and Canadian societies.
The principles or objectives of our organization, as stated in our constitution, are as follows: to be the national voice for native women; to address issues in a manner that reflects the changing needs of native women in Canada; to assist and promote common goals towards self-determination and self-sufficiency for native peoples in our roles as mothers and leaders; to promote equal opportunities for native women in programs and activities; to serve as a resource among our constituency in the native communities; to cultivate and teach the characteristics that are the unique aspects of our cultural and historic traditions; to assist native women's organizations, as well as community initiatives, in the development of their local projects; to enhance and advance issues and concerns of native women; and to link with other native organizations with common goals.
The Native Women's Association of Canada is not opposed to Bill C-49. We are well aware of the time, diligence and hard work that the signatory chiefs, their supporting staff and their lawyers have put into the realization of this legislation and we have great appreciation and respect for this fact.
This is the same thing as the Reform Party of Canada has said. We are not opposed to the legislation. We recognize the amount of work that has gone on here. We recognize the good aspects in this bill.
She then goes on to say:
This bill will give the signatory band the authority to manage its own reserve lands and resources without having to obtain approval from the Minister of the Department of Indian Affairs and Northern Development. We will celebrate this level of autonomy if the membership of the First Nations concerned enjoys and provides their informed consent.
Under the Indian Act, there are no provisions offering protection of matrimonial property for native women in cases of divorce from Indian men. Native women, unlike other Canadian women, cannot obtain orders for possession or for partition and sale of reserve land under provincial legislation, according to the Supreme Court of Canada case Derrickson v. Derrickson.
According to the B.C. Native Women's Society, typically, a native woman lives on her husband's reserve. This is likely due to the fact that previously the woman was legally bound to live on her husband's reserve. If the marriage ends, the woman and her children have no place to live because the husband usually keeps his house.
This was Marilyn Buffalo, president of Native Women's Association of Canada, who was stating this. It was not some Reform MP. Why does the woman not understand this? Often the woman cannot return to her old reserve unless she is divorced and she does not usually get support from her husband's reserve. This creates a desperate situation for the woman and her children.
Ms. Buffalo continues to say:
Although the federal government has been aware of the deficiencies in the Indian Act, it has failed to provide a remedy. Considering the serious implications for native women, and the failure of the federal government to take action on their behalf, the B.C. Native Women's Association launched a court case against Canada. In that action, the B.C. Native Women's Association seeks two declarations: first, that the federal government has a constitutional responsibility under section 15 of the Constitution Act to correct the inequality that exists in the Indian Act regarding matrimonial property; and, second, that the federal government cannot pass its fiduciary responsibility to correct the inequality deficiency on to the First Nations.
In other words, they are saying that the federal government has the responsibility. They cannot delegate that. That is what we are saying of the Nisga'a, they cannot delegate. These are constitutional obligations that belong to the federal government. They cannot be delegated.
Ms. Buffalo goes on to say:
The federal government answered the action by applying to the court to strike out those parts of the B.C. Native Women's Association statement of claim that relate to the framework agreement. On December 15, 1998, the signatory First Nations obtained intervener status in the case. On December 22, 1998, the judge announced that he would reserve his decision on the federal government's application. As of this date, the judge has not returned his decision.
We can see what has happened. The Native Women's Association has launched a suit against the federal government and the 14 first nations that are signatory to Bill C-49, and are to be covered under it, have applied for intervener status. They are trying to stop these women from achieving their goals. It appears that the minister is taking the side of the leaders in these 14 bands rather than looking at this in a fair and unbiased manner.
She continues to say:
The Native Women's Association of Canada certainly cannot blame the signatory chiefs for the fact that the Indian Act ignores the human equality and property rights of native women. It is the federal government that must answer for this particular breach of its fiduciary responsibility. It is the Native Women of Canada's responsibility to bring forward the concerns of native women regarding this bill. That is why we are here.
NWAC, as it is sometimes referred to, has already expressed very strenuously its great concern about this legislation to the Minister of Indian Affairs and Northern Development, to the Standing Senate Committee on Aboriginal Peoples, and to the chiefs who support this bill, including the national chief himself. There has been no meaningful response to our efforts. Despite NWAC's discussion with the departments of Justice and Indian Affairs, there has been no serious commitment by the federal government to act on this matter.
This was the presentation that was made in April of this year. No meaningful response to our efforts. On June 9 at the National Native Women's Association annual general assembly the minister of Indian affairs announced her commitment to act on the concerns expressed by native women in regard to their equality and matrimonial property rights in cases of divorce.
The minister announced that she would establish an independent fact finding process to examine native women's rights to matrimonial property when a marriage breaks down. It would appear that this was meant to be just a smokescreen. As the minister introduced Bill C-49 just two days later into the House of Commons she was well aware of the concerns that native women have with this legislation. Almost a year later there has been very little action taken by the Department of Indian Affairs and Northern Development regarding the fact finding process.
It is our great hope that this bill will not become law before the serious and obvious gaps are filled. A provision was added to Bill C-49 that is supposed to address the issues that concern native women. This provision is clause 17 which states:
A first nation shall, in accordance with the framework agreement and following the community consultation process provided for in its land code, establish 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;
The first nation shall, within 12 months after its land code comes into force, incorporate the general rules and procedures into its land code or enact a first nation law containing the general rules and procedures.
The minister described the third provision which is:
The first nation or the minister may refer any dispute relating to the establishment of the general rules and procedures to an arbitrator in accordance with the framework agreement.
The minister went on to say “However, this provision does not adequately address the concerns of native women. In its current form the bill presents the following issues of concern. First, there is no indication of how cases of divorce and division of matrimonial property are to be dealt with within the 12 months following the community ratification of the land code. As each first nation is to predevelop its own land code, in the absence of any clear underlying principles, native women will not have any access to any consistent application of law concerning protection of their property rights as all other Canadian women have and all other native women have”.
The bill states that the first nation or the minister may refer any dispute to an arbitrator but native women who may be victims of inequitable practices have not been given standing in the dispute resolution processes. Moreover, who will pay for the native women's involvement in this process particularly when it is clear that native women are the poorest of the poor?
Under clause 12 of Bill C-49, signatory first nations can obtain community approval for the adoption of their land code and an individual agreement by any process agreed upon by the first nation and the minister with a minimum approval of 25% plus one eligible voter. This threshold is so low that it provides no assurance that the will of the community will be behind the new regime.
Imagine instituting a land code with 25% plus one of the eligible voters in support of it. Besides the lack of protection of native women's equality and property rights, another issued raised by Wendy Lockhart Lundberg causes great concern to native women. This has to do with the extraordinary expropriation powers given to the chief and council under clause 28 of the bill.
I want to remind the House this is a native woman on behalf of the Native Women's Association of Canada appearing before a Senate standing committee saying that the expropriation powers, which I talked about, are far too powerful and far too broad for the band council. They do not need that kind of expropriation power. She is also intimating that it is not only bad for non-native leaseholders, but it is also bad for native people and she goes on to explain why. I will cover that in just a minute.
Wendy Lockhart Lundberg uses the example of her own mother to illustrate her concern about these extensive powers of expropriation. Her mother's status was reinstated in 1985. However she has not been welcomed back to the Squamish nation although she is a member. As a status Indian she receives only health benefits.
Ms. Lockhart Lundberg's grandfather had a certificate of possession for two lots which he bequeathed to his daughter, Ms. Lockhart Lundberg's mother, in his will which was properly executed in accordance with the Indian Act. These lots are still in his name but are occupied by other people and have not been referred to Ms. Lockhart Lundberg's mother.
I ask is that fair? Is that what we in Canada want to see happen? The band could easily expropriate those lots with minimal compensation because compensation need only be fair, whatever that means. The first nation need only take into account the provisions of the Expropriation Act.
Ms. Lockhart Lundberg is quick to point out that the expropriation powers can be used against all band members. She was quoted in a House of Commons debate as saying that the Squamish first nation chief and council is rumoured to have plans to commercially develop valuable waterfront reserve lands in north Vancouver. These plans could mean the displacement of band members to reserve lands further up the coast.
Ms. Lockhart Lundberg is saying that the band could in fact expropriate band members who are sitting on valuable waterfront property where their homes are. They could be expropriated further up the coast to much less desirable land so that the band could build some kind of resort or multi-residential condominiums and so on for lease or for rent on the basis of where it thinks it will get the biggest revenue stream for band activities.
Another of Ms. Lockhart Lundberg's complaints is that the Squamish first nation's chief and council did not have a community mandate to sign the framework agreement. Clause 45 of the act stipulates that any band may sign on to the framework agreement on behalf of the band if it has been duly authorized to do so. Ms. Lockhart Lundberg believes this means duly authorized by the community following consultation and a referendum.
A likely response from the signatory chiefs would be that duly authorized means the authorization comes with being elected by the community and that they are not only authorized as elected chiefs to act on behalf of the band, but they are obligated to do so. It sounds a lot like the Prime Minister who says “I was elected with 38% of the popular vote two and a half years ago which means I can do virtually anything I want for the next five years”.
We would have to say that some of the band leaders who think this way have come by it honestly because they have had a lot of contact with prime ministers and governments who think precisely that way. That is one of the reasons we have a real problem with accountability. If there is a problem with accountability on reserves today, and there certainly is on many reserves, there is a real problem with accountability as we have seen in the last few weeks in the House of Commons when the Prime Minister is not willing to be accountable for his actions. These bands come by it honestly.
In an effort to create awareness in the community, Ms. Lockhart Lundberg has a core of about 10 women who have started a petition in opposition to Bill C-49. The petition and the signatures were sent to Ted White, Reform Party member of parliament for North Vancouver. As of April 6, some 262 signatures have been received.