Mr. Speaker, as a Cree first nation woman from the Norway House Cree Nation and on my maternal side I am from the Muskrat Dam First Nation, I feel especially privileged to participate in the second reading debate of Bill C-289 sponsored by the member for Portage—Lisgar.
The objective of this bill is to amend section 90 of the Indian Act which focuses on matrimonial real property and immovables, insofar that it would extend the application of provincial matrimonial property law to include reserve lands.
Matrimonial real property describes the family home and the land upon which it is situated, and provincial laws determine how to divide the property in the event of a marital breakup or divorce.
At face value it sets out to carefully address a delicate matter. Instances involving conflicts in regard to matrimonial real property do, without question, affect all Canadians and, of course, first nations citizens as well.
This bill however seeks to amend a portion of the Indian Act and, therefore, I trust that my parliamentary colleagues will lend their attention to the complexities that surround Bill C-289.
The urgency to address matrimonial real property on first nations is by no means a recent issue. Over 20 years ago the legislative gap was brought to the fore by the Supreme Court rulings of Derrickson v. Derrickson and Paul v. Paul. The result of these rulings was that provincial and territorial laws relating to the division of matrimonial real property, upon marital breakdown, do not apply on reserve lands.
This is an issue that has been explored, as my colleague mentioned, in many reports and in the Standing Committee on Aboriginal Affairs and Northern Development. In June 2005 the committee released a final report entitled “Walking Arm-In-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property”.
Since the report was finalized, the Native Women's Association of Canada, Indian and Northern Affairs Canada and the Assembly of First Nations have sought to seek a resolution on matrimonial real property.
I wish to remind the member for Portage—Lisgar that there are key considerations. First, there are aboriginal and treaty rights. The courts have affirmed aboriginal and treaty rights over reserve lands and, accordingly, they are protected by subsection 35.(1) of the Constitution Act. This is the fundamental starting point for discussions to address the legislative gap.
Recent court cases have confirmed that the federal government cannot unilaterally proceed with enacting legislation that has the potential to infringe on aboriginal and treaty rights or affect aboriginal interests without first consulting first nations.
There has been judicial recognition of first nations jurisdiction over land use on reserve lands. Additionally, in respect of the inherent right to self-government, there must be recognition of first nations jurisdiction over family law matters. To do otherwise infringes on the rights of first nations to be self-governing, as recognized by the Constitution of Canada.
Additionally, in May 2005 an agreement was signed by the Assembly of First Nations and the previous Liberal government of Canada. This agreement is known as the “First Nations-Federal Crown Political Accord on the Recognition and Implementation of First Nations Governments”. It laid a fresh framework for a collaborative federal policy development process that would guarantee first nation participation.
Bill C-289 makes absolutely no mention of these essential conciliatory processes and legal mechanisms.
Given the past and present hardships experienced by Canada's first nations, I think it would be considerably counterproductive to proceed any further on a bill that was not the outcome of a successful, cooperative and collaborative effort.
If indeed it is the intent of the member to address critical issues facing first nations women and children, then I find it difficult to understand why the member would not have supported the motion in this House put forward by the member who represents the Desnethé—Missinippi—Churchill River riding to honour the implementation of the Kelowna agreement, entitled “First Ministers and National Aboriginal Leaders Strengthening Relationships and Closing the Gap”. It was reached between the first ministers of this country and national aboriginal leaders, including the Native Women's Association of Canada, the Assembly of First Nations, the Inuit Tapiriit Kanatami and the Métis National Council.
The Kelowna accord was a first step which would have provided over $5 billion to address critical issues affecting first nations women and children, including the day to day urgent needs in: housing, safe drinking water, education, health care and developing capacity in the health care field, economic development, and addressing governance structures which is absolutely essential for aboriginal people to move forward in self-determination. That, I might add, is a key health determinant.
The answers must come from the people themselves and earlier this year, on June 21, the Minister of Indian Affairs and Northern Development announced a nationwide consultation process on matrimonial real property. These regional dialogue sessions are necessary and they are a means toward achieving a meaningful and lasting solution.
I encourage the member to consider the impacts of attempting to supercede a process that is currently underway. In fact, I encourage all members of the House to consider how momentous this process is to involve first nations and aboriginal women in a cooperative and collaborative process with the federal government. In order to best reinforce the integrity and focus on the genuine intention of the regional dialogue sessions, and the good faith of the consultations, it is not judicious to pursue this bill any further.
Although I support the issue being resolved, I can assure the House that Bill C-289 is undermining the legal process that is currently being pursued. To reiterate and conclude my position, out of respect for the ongoing process that is currently underway between Indian and Northern Affairs Canada, the Native Women's Association of Canada and the Assembly of First Nations, I cannot find any constructive purpose in supporting this bill.