Mr. Speaker, it is with great pleasure that I rise to speak to Bill C-47, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves.
This act would basically establish a federal matrimonial real property regime, combined with the mechanism for first nations to develop their own matrimonial real property laws.
Essentially, for the public watching who may not understand this, for people not on reserve whose marriage breaks up, in most of Canada, there are laws to protect them. There are usually provincial or territorial laws to protect each person in the breakup, so that there is a fair distribution of the assets and that the appropriate person has access to the house to live in. Other provisions can also be put in place, if there is spousal abuse for example, to ensure that the individuals do not both have to be living in the same building.
However, these rights do not occur on reserve, as was determined by the courts. The reason being that the legal provisions on reserve are a federal responsibility and most of these laws are provincial or territorial. So, for years, aboriginal spouses, women, in particular, have had the problem of not having access to these protections in a matrimonial breakup.
This has been brought forward for decades and there have been various attempts by various governments to work on this, to study this, and various studies have been outlined by previous speakers. It is somewhat of an intractable problem in that respect.
It is very complicated for the people watching who wonder why it has taken so long to deal with this and to come up with a debate on it, a debate where a number of concerns have already been raised. One of the reasons being is that there are three orders of government involved. We have the first nation or aboriginal governments, and there are different categories and different situations. They may be self-governing or not self-governing, or they may have a first nations land act. Then we have the provincial or territorial governments and the federal government. When we have all three governments having some role in this problem, then obviously it will be a complex situation. That is why today we have already had a number of concerns or issues raised.
Everyone supports the fact that the issue has to be dealt with. I think that will be unanimous in the House. But also I think most members will be outlining certain concerns with this particular attempt at dealing with the issue. I look forward to listening to the government speakers when they answer some of the concerns that have come from all the opposition parties today related to this bill. I will also be interested to hear how we can move forward in a positive manner.
I am going to outline some of the aspects of how the bill would work, some of the concerns that I have, and some of the specifics related to my particular riding. I will also mention some of the concerns that some groups have brought forward.
Obviously, there are a number of positive items in the bill. I do not have to dwell at length on those because we all agree and we can move on quickly and get this in place. However, if there are concerns, then we will be anxiously listening to the government speakers to hear how they will deal with the concerns, so that we know we are moving forward in the right direction.
This bill is a matter of human rights for women, and often children, quite often in single parent families in particular in the majority of cases. This will, of course, occur after a split up, where the woman is the one responsible for the children. We are making decisions here that are going to really affect the lives of children who are often with the women.
The Liberal Party, as the party of the charter, is in strong support of people having charter rights and of extending matrimonial real property rights to first nations people.
We support the intent of the bill, but we have concerns with the proposed process. If the process is not correct, then some of the content could easily be at jeopardy. That has been outlined, I think every eloquently, by the experts, the critics in each party, who have spoken to this bill and by the aboriginal people who have spoken to this bill to date, and I certainly do not have anywhere near their expertise.
The purpose of the bill is to extend this regime to first nations or to encourage them to develop their own matrimonial real property laws. Indeed, a vast majority of the House is totally in agreement with the concept that the ultimate solution to the best government for first nations people is self-government and I hope the member for Esquimalt—Juan de Fuca asks his usual question about owning property because I have a great answer.
I did not have a chance to answer him yesterday, but self-government is the answer. It has had all sorts of success stories that I could outline if I am questioned on it and it is a great step forward where people are taking care of their own lives. The strength of the bill is in the fact that it encourages that to occur and it encourages first nations to put their own lives in place, but it has a default federal law until the first nations put their own laws in place to cover this.
In 1986, the Supreme Court of Canada ruled that when a conjugal relationship breaks down on reserve, courts cannot apply provincial-territorial family law because the reserve falls under federal jurisdiction. As a result, aboriginal women living on reserves have not enjoyed the same rights as women living off reserves. They are not entitled to an equal share of matrimonial property at the time of marriage breakdown and matrimonial real property refers to the house and land the couple lives on while they are married or in a common-law relationship.
Since the 1986 Supreme Court ruling, the gap in law has had serious consequences and some members, I think even the minister, quoted some women and the harm that has been done to them in that situation. When a marriage or relationship ends, the courts have no authority to protect the matrimonial real property interests of spouses living on reserve. As a result, spouses living on reserve cannot ask the courts to grant an order for temporary or permanent possession of the family home even in a situation of domestic violence or when the spouse has custody of the children.
Without that protection what is a woman with children to do if she wants out or wants to break up from an abusive spouse, and where is she actually going to live with these children? In many situations she would not have any income and there are housing shortages which many members have already talked about in this debate, and this too must be dealt with.
There may not be a spot for her to go to and yet she does not have that protection today. The courts cannot be asked to order a partition and sale of the family home to enforce an order of compensation from one spouse to the other, so she could not even get 50% from her half of the house in order to carry on with her life. It precludes the spouse from selling or mortgaging the family home without consent of another spouse. That is in the common law in Canada and these women, in the majority, it could be men, on reserve do not have access to that particular protection. Someone could just go ahead and sell their house and they would not even know it. That is why this needs to be dealt with.
Approaches to addressing the legislative gap respecting this have been under consideration for some time. In recent years three parliamentary committees have recommended legislative mechanisms to resolve this issue. To carry out the consultations the department provided the Native Women's Association of Canada and the Assembly of First Nations each with $2.7 million and INAC also held consultations with and provided funding to a diverse range of aboriginal organizations not represented by the Native Women's Association or the AFN. It would be good to have a list of those other organizations for the committee when it deals with this.
I asked that question earlier and it is one of the major issues that will have to be dealt with at committee. Why, with $5.4 million minimally plus all of INAC's time devoted to consultation, are there concerns being raised by so many speakers today and key stakeholder groups about the consultation process?
Under this new legislation all first nations, with the exception of those first nations that have matrimonial real property laws under the First Nations Land Management Act or self-government agreements, would be subject to the bill's proposed provisional and federal rules unless and until such time as they enact their own laws.
Under the First Nations Land Management Act they have a time limit. They can put laws in place if they have not already done so. I think 10 out of 20 already have their own matrimonial laws, but they will have a certain amount of time to put laws in place so that the default federal law would not apply.
The provisional bill applies to approximately 50% of the first nations that use the Indian Act land allotment system, but the rules in the bill would not apply to the lands that have been allotted according to custom. However, the bill would apply in respect to matrimonial interests recognized by an agreement between spouses and first nations or by the courts. If a first nation does not recognize the matrimonial rights or interests, the spouse or partner can turn to the courts. I am going to comment on that a bit later.
Bill C-47 would provide spouses or common law partners with an equal entitlement to occupancy of the family home until the relationship ends. It also would provide spouses or common law partners with protection against disposition or encumbrance of the family home without their consent.
This is a list of the things that are available generally to other Canadians.
The bill would allow the court to order that a spouse or common law partner be excluded from the family home on an urgent basis. An urgent basis could be, for example, spousal abuse.
It would enable the courts to provide short to long term occupancy of the family home to the exclusion of one of the spouses or partners.
Bill C-47 would ensure the proven value of a couple's matrimonial interests or rights in or to the family home and other structures. The lands on reserve would be shared equally in a relationship breakdown.
The bill would allow the courts to transfer, in some circumstances, the matrimonial interests between spouses or common law partners together with or instead of financial compensation.
When a spouse or common law partner dies, Bill C-47 would ensure that the survivor could remain in the home for a specified period of time and could apply for half the value of the matrimonial rights and interests as an alternative to inheriting from the estate of the deceased. There will be some debate in committee on the particular time limits.
The bill would allow for the courts to enforce a free and informed written agreement made by the spouse or common law partner that sets out the amount to which each is entitled and how to settle the amount.
The bill would provide for a first nation council, on application from a non-member, spouse or common law partner, to enforce on reserve a court order made under the act.
It would provide first nations with the jurisdiction to adopt laws with respect to matrimonial real property interests. Bill C-47 would require a community ratification process when first nations develop their own laws.
A rogue council with some particular interest could not secretly pass a law that would supersede the federal law. Just like in land claims or self-government agreements, there has to be a community ratification process.
Bill C-47 would provide for first nations to be notified when community collective rights are engaged with respect to a ruling. The first nation may then choose to make representation to the courts about the cultural, social and legal context relevant to the proceedings.
This element of the bill is a good news and a bad news story. People are starting to comprehend that aboriginal culture is a different type of culture. Aboriginal people have a different way of thinking, a different way of organizing themselves, and a different social organization than European culture and other cultures in Canada.
One of the primary differences is the sense of collective responsibility, collective management, collective rights, and collective culture, as opposed to some of our individual rights and how those supercede other rights in the European culture.
This was a great problem when we came to the human rights bill that was before Parliament, because there was no recognition by the government of that huge difference in the two cultures when the bill was brought forward.
However, in this bill that is recognized. That is the good news part of it. There is this provision, which I have just read out, whereby “the First Nation may make representations to the courts about the cultural, social and legal context relevant to the proceedings”.
When we are dealing with a major item of someone's culture, we cannot simply say that they are allowed to make a statement in court about it. Some first nations have said that this is not a strong enough provision with respect to those rights.
Before I get on to my other points, and before I run out of time, I want to tell my own constituents how the bill will affect them. In my area of Yukon, 11 of 14 first nations already have their land claims and self-government agreement. The agreement recognizes aboriginal jurisdiction over aboriginal lands, but jurisdiction over matrimonial property, real or personal, is not explicitly addressed.
As a result of the provisions of the agreements which address provincial-territorial laws of application and relationship of laws, provincial-territorial matrimonial property laws of general application will apply, although these may be superseded by subsequent aboriginal government laws respecting matrimonial rights or interests. The Nisga'a Final Agreement and the Yukon Umbrella Final Agreement are examples of this approach.
For my friends back home, let me say that until they develop their own matrimonial laws, the umbrella federal law will apply after this bill. Of course, for the Kaska, the Ross River Dene and the White River First Nation, the federal law will apply because they do not have a self-government agreement in this area yet.
Some of the concerns that I talked about earlier I will now be looking for when the government puts up a speaker to address what I have already mentioned. There are the concerns of the Assembly of First Nations.
One of its concerns is related to the fact that Bill C-47 does not contain a non-derogation clause. The minister gave a very sincere answer, saying he does not think it is required because the Constitution, in sections 35 and 92, et cetera, covers all that territory and will ultimately trump anything else, so there is no need for the less powerful non-derogation clause. Yet it would give great comfort to some first nations people, so if there is no problem with it, then I think there will probably be discussion at committee about perhaps adding it.
The Assembly of First Nations of course raised the point I just talked about, which is related to collective rights. One of its other concerns is that the government's implementation plan appears not to contain any provisions to support first nations in developing its rules regarding matrimonial real property or to comply with the verification process.
Furthermore, it would appear that legislation will immediately apply to first nations as soon as it is passed, not allowing for a period of time for development and verification to take place. We had the same problem with the human rights bill, of course, and had hoped that the government would have learned from that bill. When we tell a government to put new laws in place, the people have to be trained to have the capacity and it is going to cost money. There needs to be time to implement the laws. The Assembly of First Nations notes a significant lack of all of that in this implementation plan.
I do not have time to go into the issues that Native Women's Association of Canada addressed. Needless to say, those issues will be covered at great length in committee.
I will close with the two philosophical problems that important stakeholder groups have. One is that the law in itself needs to be in concert with a whole bunch of other issues that would support and prevent family breakdowns, which is what causes the problem in the first place. Also, the underlying resolution lies in supporting communities and clearly emphasizing the need to keep families--