moved that Bill C-289, An Act to amend the Indian Act (matrimonial real property and immovables), be read the second time and referred to a committee.
Mr. Speaker, I appreciate the opportunity to discuss the bill in the House today.
Leona Freed is a friend of mine whose ex-husband physically abused her. However, she had three children so she stayed with him for five years before she finally walked out. For many women, finally leaving the abuse they endured marks a new beginning for them. Assets in family law court are divided equally and a judge makes the call on support issues.
However, that was not the case for Leona. Leaving her ex only sparked bigger problems. Family law did not apply in Leona's case and it still does not for many other women like her because of where the abuse took place, which was on a native reserve called Hollow Water, a couple of hours north of Winnipeg.
No one was there to protect Leona, not even the law. Only a handful of Canada's 600-plus reserves have established matrimonial property laws. On our largely patrimonial Indian reserves, that literally means every man for himself.
When a marriage dissolves, there are no rules to provide fairness or protection to the vulnerable, most often the female partner. Provincial codes apply only off reserve. Rules differ somewhat by province but at least there are rules in place, rules that guarantee rights are protected.
The federal government has jurisdiction on Canada's reserves but the Indian Act is silent on this issue and so we have a problem, or at least aboriginal women have a problem and therefore we in this place should concern ourselves with that problem.
When their relationships break down, they are caught in a legal no man's land where no woman should ever have to tread.
Is this a new problem? No, it is not. Manitoba's aboriginal justice inquiry recommended action on this issue back in 1988, as did numerous other studies, including but not limited to: the monumental Royal Commission on Aboriginal Peoples in 1997; the 1998 United Nations Committee on Economic, Social and Cultural Rights identified the lack of matrimonial property rights for aboriginals and beseeched us to act here; the interim report of the Senate Standing Committee on Human Rights in 2003, “A Hard Bed to Lie In: Matrimonial Real Property on Reserve”, called for immediate action; and, in 2005 the House of Commons Standing Committee on Aboriginal Affairs and Northern Development recommended that action take place as well.
The Indian affairs minister and the government has commenced a consultative process with the cooperation of the Assembly of First Nations and the Native Women's Association of Canada. This is admirable, as have been all previous reports, studies, hearings, commissions, consultations, panels and committees. Unfortunately, none have resulted in any action and the injustices faced by Canadian aboriginal women endure. As well, despite the minister's good intentions, it is quite possible that other factors, such as another federal election, will result in further delays.
This is an issue of interest to columnists. Just this week there was a column in the Globe and Mail. In reference to the consultations, John Ibbitson said:
The most we can reasonably hope for is some incremental progress that the next government will pursue, leading to real reform some time down the road. What experience suggests is that failure will follow failure in unbroken succession.
There is justifiably some doubt as to whether action will actually occur as a result of the consultations. Bill C-289 is an attempt to change that inaction into action. The bill would extend provincial matrimonial property codes to reserves and provide interim rules until the federal government acts or until first nations develop their own charter-compliant codes. In other words, the bill would l put the rule of law into place where it does not currently exist.
This is exactly the measure unanimously recommended by both the Senate and House committees and yet some will argue for further delays. Detractors of the bill will argue that the issue is complicated. They are quite correct. The complexity argument has long been used to undermine aboriginal equality and human rights. Surely, putting an end to the personal suffering experienced by aboriginal Canadians should be sufficient motivation to act.
Certainly the Winnipeg Free Press thinks so. An editorial on October 16 stated:
The practicalities of imposing the law are complex -- many reserve residents live below the poverty line and do not have access to courts or lawyers. But it is high time First Nations men and women had the same basic claim through law granted other Canadians when marriages fail. It may be that decades of legal disputes and years of study are not enough for [the member for Winnipeg South Centre]. Native people have been waiting for such a law for too long.
That is its view and it is mine.
Certainly some first nations chiefs covet the control that now rests with them in the absence of matrimonial property laws. They argue that they are best positioned to make asset allocation decisions in the collective best interests of band members. But many other leaders know that formalizing and depoliticizing these decisions is in the best interests of individuals and of chiefs and councils. In spite of this, some want to play jurisdictional ping-pong with this issue. They would argue that the community should establish its own codes. I would say this in response.
First, this bill respects first nations' governance aspirations. It provides interim protections until communities can do just that, until communities can decide how they wish to proceed.
Second, this is not a new issue. This issue has been around the reserve for years and yet, very few have developed matrimonial property rules. Without action, aboriginal people, in particular aboriginal women, may wait many more years for justice.
Third, why reinvent the wheel? A number of first nations leaders I have spoken to recognize and have said they have many other priorities they have to deal with: water quality, economic development, social problems. They have limited resources. Using and enforcing provincial codes on an interim basis, or even perhaps permanently as some bands have said they would like to do is both cost effective and the right thing to do.
Some chiefs and councils are currently pushing for exemptions to provincial smoking bans. Certainly we know of cases in Manitoba and Saskatchewan and there are others I am told. In particular, this is relevant to gambling ventures that some of the bands have under way. These bands will naturally be concerned about the jurisdictional optics of accepting provincial codes in one category while opposing them in another. I would urge these leaders to consider the optics of prioritizing the equal rights of their band members beneath gambling profits. That is not a pretty optic.
This week's The Hill Times contains an article by Grand Chief Phil Fontaine in which he said:
--after a decade of research, Harvard University found that it could not point to one example of sustained development that, “did not involve the recognition and effective exercise of tribal sovereignty: the practical assertion by tribes of their right and capacity to govern themselves.
That is something many of us here support. But progress towards aboriginal self-government has been hindered by widespread concerns about accountability. These concerns are fuelled by stories of misspending, abuse of power and the often repeated examples of social malaise on reserves. These concerns exist both on and off reserves and these concerns are shared by both aboriginal and non-aboriginal people. The question is how to address these dysfunctional governance problems.
Mr. Fontaine went on to say, “Ultimately, authority spreads from the people”. But does it, can it, when people are afraid to speak up? The absence of property rights among aboriginal people hinders their willingness and ability to speak up when they see wrong being done, or when they experience it firsthand.
And rightfully, many aboriginal women will stand in the way of self-government unless and until their rights are protected. They and all Canadians need to feel confident that there are checks and balances in place to offset any potential abuses of power by community leaders. Establishing matrimonial property rules on reserve is in the best interests of accountability because it replaces a decision making process which can be discretionary and arbitrary with one that is clear and is non-political.
Sovereign nations cannot exist without sovereign individuals. Five hundred thousand aboriginal women confident of their rights may be able to achieve what 5,000 federal bureaucrats will never achieve: better governance on the reserves of this country; more accountable governance on the reserves of this country.
I would ask members of Parliament, on behalf of the Canadians they represent, to support this bill when it comes before the House early in the new year.
When she was fighting for her children and her property, Leona Freed was standing alone. She was standing unprotected. This is our opportunity to stand with Leona and thousands of aboriginal women like her and acknowledge the matrimonial property rights of aboriginal people. With the passage of this bill, we would be standing together to protect and defend Canada's aboriginal women.
Hon. members may ask why I bring this forward when the government has already initiated a consultation process. I have been fighting this issue for a long time. I have travelled to over 100 first nations communities in my capacity as the critic when in opposition. I have heard firsthand the tragic stories, as I know other members of the House have as well, of hardship and of heartbreak directly from the people who have experienced those hardships, from the women affected, women who have been abused, women who have been thrown out of their homes, women who have been forced off of their reserves. As we debate this bill, these problems do not stop; they continue.
In a society where too many people claim unjustified victimhood, aboriginal women are real victims, victims of an intolerable inequity, a contravention of the equality rights in our charter, a contravention of section 35 of the Constitution Act.
I submit to my colleagues in the House that the choice for us here is clear: either we perpetuate the inequality or we end it by making this bill a reality.