Debates of May 13th, 2008

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Mr. Speaker, my colleague has raised a very important question.

Should we remain in Ottawa to conduct all of the consultations on the bill, we will certainly hear from representatives of aboriginal women's groups and aboriginal women leaders. We have heard some of their statements already on the bill.

I think it is a matter of discussion for the committee as to how we will hear directly from some of the women who have been affected by the loss of their marital home through relationship or marriage breakdown. I do not have an easy answer, but it is a discussion the committee should have so that we explore this issue in a full and comprehensive way.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, the member opposite made a very good speech regarding some of the critical points that are important for the House, and subsequently, if the bill gets to committee, for the committee to consider.

Yesterday in the House the Minister of Indian Affairs and Northern Development said that Bill C-30 was the product of a lengthy consultative and collaborative process involving key stakeholders. He went on to talk about the fact that Bill C-30 represents a tremendous collaborative effort between first nations and the federal government at achieving agreement on the design, composition and mandate of an independent specific claims tribunal.

The member talked about consultation in her speech, but I would ask her what she sees as the key differences between the process that happened with respect to Bill C-30 and the process that is currently under way with respect to Bill C-47.

The Native Women's Association of Canada, for example, has said that it does not consider this to be a full consultative process. Neither does Wendy Grant-John. She laid out in recommendation 18 a number of specific key points that need to be present in a consultative process.

I wonder if the member could address the differences.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

I am smiling, Mr. Speaker, because what comes to mind immediately is it appears for the most part that the government listened in the collaborative process, not the consultative process, that went on with Bill C-30.

Wendy Grant-John oversaw a consultation process that went on across the country. For the most part, the recommendations that Ms. Grant-John put forward and that were integral to the implementation of matrimonial real property legislation have been bypassed.

The government worked collaboratively with respect to one bill and chose to bypass on another.

[The Acting Speaker, Conservative, Andrew Scheer]

I can only take a very brief question or comment.

The hon. member for Churchill.

[Tina Keeper, Liberal, Churchill, MB]

Mr. Speaker, in Manitoba we have a first nations women's council. It participated in a region specific matrimonial real property session. In its report to government, it stressed:

The session was framed as a preliminary educational/information session. Participants felt that consultation with First Nations directly by the federal government must occur based on the principles of free, prior and informed consent, and reconciliation.

[The Acting Speaker, Conservative, Andrew Scheer]

The hon. member for Winnipeg South Centre has about 20 seconds to respond.

[Anita Neville, Liberal, Winnipeg South Centre, MB]

Mr. Speaker, I am not quite sure what the question was but, just briefly, I think that the Manitoba aboriginal women's council summed up in the statement my colleague read the essence of what real consultation should be about, and that has not happened.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, along with Bill C-21 the bill before us is probably one of the most important bills with respect to aboriginal affairs the government has introduced.

There was Bill C-30, which I believe was passed unanimously by the House. That bill fulfills and will fulfill, I hope, all conditions, including consultation, and will allow the first nations to go forward with their land claims.

However, today we will be focusing on Bill C-47. Allow me to take a moment to quote from an extremely important document that we received from the Native Women's Association of Canada. This document reports on the government's study of matrimonial rights. The title speaks for itself: Reclaiming our Way of Being: Matrimonial Real Property Solutions. This document was prepared by native women and I would like to begin by quoting a phrase that truly recognizes the problems:

The key is restoring equality and only then will Aboriginal women regain and occupy their rightful place as equal partners [all these words are important] in Aboriginal society—we used to be raised as equal to men but when the Indian Act came along, the Europeans said women are property of the men.

In my opinion, the debate surrounding Bill C-47, which is now before us, revolves around the following statement by a native woman found in this extremely important document entitled Reclaiming our Way of Being:

I want back the respect that my grandmothers and ancestors had—people listened to them; let’s put women back to their rightful place of respect.

The entire debate will revolve around Bill C-47. This excellent document looks at what led native women to look at their rights, in particular matrimonial real property rights. I would also like to refer to another document.

This all started when the Supreme Court had to rule on two extremely important cases: Derrickson v. Derrickson, and Paul v. Paul in 1986. The debate on matrimonial real property has been going on since 1986. We will try to make progress on this issue with Bill C-47, but in both decisions in 1986, the Supreme Court ruled that, since reserve lands fall under federal jurisdiction, as a result of subsection 91(24) and so forth, provincial legislation cannot apply to modify any individual interest in reserve land.

In plain words, women living on a first nations reserve are not equal to women living off reserve. It is not complicated. This is precisely what the ruling under the Indian Act states and is repeated in the document I was just reading.

Aboriginal women are submissive, they have to be submissive, and if Bill C-47 is adopted, a change in mentality will be necessary. I am not sure whether today, May 13, all aboriginal communities in Canada are aware of this Bill C-47 that we will be studying soon in committee.

In the Supreme Court rulings in Derrickson v. Derrickson and Paul v. Paul in 1986, the reason for the limited application of provincial and territorial legislation and the reason that the Indian Act was not mentioned in terms of matrimonial property, was that most of the first nations communities on reserve are denied protection and significant recourse. For example, the courts cannot invoke provincial and territorial legislation to issue an order for possession concerning a matrimonial home, to order the sale or sharing of a matrimonial home on the reserve to execute a compensation order, or to prohibit the sale or encumbrance of a matrimonial home.

That is precisely the problem. The problem Bill C-47 seeks to address is an extremely important problem that affects—we must be honest here in this House—90% of aboriginal women living on reserve. We have to listen carefully to these women. What do these aboriginal women have to say? The Bloc and I have a small problem. In fact, this could become a very big problem if we do not listen to aboriginal women.

In 2006, through the then-minister of Indian Affairs, who is now the Minister of Industry, the government said that it would consult aboriginal women. Wendy Grant-John, an extremely respectable woman, was appointed, and she travelled around, holding consultations and meeting with many aboriginal women before submitting her report. That is when things started to go wrong.

Earlier, my Liberal Party colleague from Winnipeg South Centre said something important. The government does not seem to have listened, and that is troubling. In her report, Ms. Grant-John made a number of recommendations. Here is what the Assembly of First Nations Women's Council says about the bill:

The bill will ultimately force First Nations Women to seek remedies in provincial courts. This is neither timely nor financially viable for many First Nations women in remote communities.

That is one of the biggest problems. The government would be creating two classes of aboriginal women: those who live on reserve and those who live off reserve. Those who live off reserve—women in Montreal, Calgary or any Canadian city—have to go to civil courts. Superior courts can order violent spouses to get out and leave the house to the aboriginal woman and her children. In several cases that have gone before the Superior Court of Quebec, among others—I will focus on Quebec because that is where I am from—aboriginal women living off reserve have had these rights, while aboriginal women living on reserve have not.

I would like to give a quick example. Aboriginal women from Akwesasne, from Kahnawake, from Pikogan, or from Kitigan Zibi who live near large cities do not have the same rights as aboriginal women living in Maniwaki or in large cities like Montreal, or even in Amos over in Abitibi. That is a problem. Furthermore, this problem will get even worse if we do not do what must be done to resolve it.

The women who live in remote reserves have even fewer rights now, particularly in Kashechewan and Winneway. It is not guaranteed that they will have more rights after the passage of Bill C-47. Therein lies the debate, or at least part of the debate. One problem brought up by aboriginal women is the following:

During consultations...women asked that Matrimonial Real Property rights be developed from their own cultural values and traditions, not under provincial or federal rules they had no part in crafting.

This means that aboriginal women should be invited to the committee; we should listen to them explain how matrimonial real property rights can be developed, taking into account the cultural values and traditions of aboriginal women. I think that will be an interesting part of our work.

Aboriginal women also say that:

Rather than recognizing First Nations authority, the Bill constrains how First Nations rules are to be made in a complicated process yet offers no support for First Nations in doing this work. In the end, the Bill will impose a complex, bureaucratic system, with no support or consideration for implementation.

That is an important point that the committee will have to consider. Passing and implementing Bill C-47 should not create more problems for aboriginal women than the ones that already exist—and there are many. I repeat in this House, 90% of aboriginal women on reserves are affected by this bill that could be passed in this House.

Lastly, aboriginal women have this to say:

For Matrimonial Real Property Rights to be meaningful, women told us the government must ensure there is adequate safe and accessible housing.

Therein lies part of the problem. The government should have listened to aboriginal women. The government, too, can read this document in which aboriginal women say they want to reclaim their way of being, which is extremely important, and in which they make a whole series of recommendations to solve the problem of matrimonial real property.

If we want to implement a bill such as Bill C-47, a debate in committee will be important, but would we not do well to also address the problems affecting the first nations, problems pertaining to violence, justice and education in communities? All these issues are part of a whole. We cannot deal with the issue of matrimonial real property without looking at all aspects of the reality of aboriginal communities on reserve today.

I invite any members of this House who have not already done so to view the film by Richard Desjardins and Robert Monderie entitled The Invisible Nation, which concerns the status of aboriginal people. Members can rent the film or ask the National Film Board to send them a copy. Extreme poverty and lack of education in communities often lead to violence. Sadly, women and children are most often the ones who pay the price for this violence.

Bill C-47 concerns a basic issue that we need to look at. I have a particular case in mind, although I will not name the parties. When I was a lawyer, we wondered about this case. An aboriginal couple living on a reserve opened a gas station and convenience store on the reserve. The couple fought, and the woman had to leave. Nearly 10 years later, the gas station and convenience store are still in operation and bring in more than $1 million for the father of the woman's children.

There was an attempt to proceed to judgment, and a person can try, but judgments cannot be executed on reserve. This is precisely what Bill C-47 is trying to change. We really hope that happens.

There are some important points in this bill that we cannot ignore. One thing is sure: the government is finally tackling a glaring need, that is, respect for aboriginal women on reserves. But even more needs to be done. The bill must be adaptable to the needs of the first nations. It must be studied very carefully. In fact, certain mechanisms will allow first nations to develop and implement their own laws, and take action on matrimonial rights and interests, but this poses a problem. As I was saying, a drastic change in mentality is necessary, since a balance must be struck between the authority of the chief and councils on matters of matrimonial property.

With all due respect, I must say here today that the work needs to be done not only by the government or here in this House. Many first nations, quite a number really, must take charge of their own affairs. First nations councils must make important decisions in favour of aboriginal women and children in those communities. Anyone can say that women and men are equal, but in many aboriginal communities, still today, on May 13, 2008, this is simply not the case and is far from the reality. Thus, we hope this will change.

Clearly, the Bloc Québécois will vote in favour of referring this bill to committee for study. It is an important bill. There is work to be done. I will mention only a few points, since time is running out. To date, there has been a serious lack of information. What is the action plan? How will this bill be implemented? How will the government go about implementing this bill once it passes? What measures and resources can the government offer to implement this bill?

We have been told certain things, but I do not wish to go into the legal details of the consultations in general. At present, native women in Canada know that the bill is coming. But what will they do if a court orders the man to leave the home when there is no housing in the native community? Or, what will a native woman do if she decides to leave the home to the man because it is crowded and not appropriate for her and her four children, but there is no housing in the native community? She will find herself on the outside. That is currently one of the major problems.

I do not wish to speak again about Pikogan, but I can talk about Timiskaming and several other communities where we see native women leave the reserve with children because, quite often, they are abused. Often they are harassed. The chiefs should take charge of their communities and the band councils should accept that this bill will be implemented and that they should be prepared for its implementation. One of the problems is the lack of housing.

I see that I have less than one minute and so I will close with one remark. Once the bill has passed and if the present housing stock is not increased, it may be a futile exercise.

Nevertheless, one thing is certain: something has to be done. Is Bill C-47 what native women have been awaiting for over 30 years?

No matter, we will vote for this bill so that it is studied in committee. I hope that native women will make their voices heard at the committee and that they will be heard in their own communities.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I noted that the member ended his comments in exactly the direction on which I wanted to ask him a question.

In a recent Auditor General's report on aboriginal children and welfare, the Auditor General pointed out that unless there were remedies outside of the child protection system, such as housing, education and supports to the family, the underlying causes of why children were being apprehended would not, in the long term, be addressed.

In this legislation, I know the Quebec Native Women Inc. and the Labrador Native Women's Association are kicking off a parallel campaign around dealing with the issue of women and violence. I wonder if the member could comment on the fact that this bill does not include remedies to the things that often contribute to marital breakdown. It also does not have a long term strategy for dealing with the causes of marital breakdown. The member mentioned housing but there are many other factors on reserves that are causing families to disintegrate.

I wonder if he could comment on the absence of those remedies in the bill.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I would like to thank my colleague for her question. My New Democratic colleague is absolutely correct. Yesterday I read the Auditor General's report on the situation of children in aboriginal communities, and it is a crisis situation. I will try to be polite: we are sitting on a volcano. If we want to assimilate the first nations, we simply have to continue taking children off the reserves and putting them up for adoption and the problem will be solved. But I do not think that is the solution.

My NDP colleague is absolutely correct in saying that this is one of the issues we will face in implementing Bill C-47. In my opinion, and I say this with all due respect, everything is closely linked. We will have to be ready. What impact will Bill C-47 have on communities?

Courts and judges will hand down decisions and will order that the store be sold and the profits split. However, if none of the surrounding issues are fixed—poverty, lack of water, violence, because there is violence in these communities—we will not be any further ahead. At least something will have been done. It is a small step but an important one. We need to make aboriginal children and women our priority.

[Rod Bruinooge, Conservative, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Mr. Speaker, I want to thank the member for Abitibi—Témiscamingue for acknowledging his party's support to send this bill to committee where we will consider the bill in its full context and work toward undoing and creating a new scenario for first nations women and men on reserve so they can utilize similar provisions that other Canadians take for granted. I know this is important work that he has often spoken about in the past.

The member raised a number of points that were similar to the points made by the member for Winnipeg South Centre. He linked some of the issues in certain first nations communities where there are housing shortages to this issue. Does the member genuinely believe that if there were more houses on reserve, this issue would not exist?

I know it is a rhetorical question because I fully understand and believe that this issue cannot be addressed simply by more housing stock. It is a fundamental issue that first nations people simply do not have access to a proper breakdown and division of matrimonial assets after a marriage has broken down.

If he could speak a little bit to that argument, which seems to have been posed now by a few members of the opposition, that would be appreciated.

When this bill does get to committee, I am hopeful that we will be able to work in an expeditious way to see its passing and eventually sent back to this House, as we did with Bill C-30 today. I again would like to thank him and his party for their support on that bill.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I will get to my colleague's question. I want to say one thing to the government, and I hope it is clear. I do not want the government to rush us, push us, order us, ask us to move quickly or put pressure on us to implement this bill as fast as possible. This bill is much too important and vital for them to push us around and ask us to move quickly. We will agree to examine it in committee, but I do not want to set a deadline for it to be passed before the House adjourns in June. That would be unacceptable. It would be an insult to aboriginal women.

Now, as for his first question, I would say that it is clear. Even if there were many buildings or homes in aboriginal communities, matrimonial property would clearly still cause problems. That is obvious. The situation in aboriginal communities transcends the housing problem, but that is not all. There are the water and sewer systems. There is the fact that in many communities, the band council is run by a chief whose brother is the police chief, which means that when a woman files a complaint, nothing happens. It has to do with all of that.

There needs to be, and I say this with all due respect, some kind of major change in attitude.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I am pleased to 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.

The NDP will be supporting this bill and getting it to committee. I hope that the committee will have an opportunity to study the bill extensively and to call witnesses who reflect some of the concerns that we are certainly hearing.

Much has been said already about the report from Wendy Grant-John that was presented in the spring. Sadly, there was no response from the government to this report. I want to quote from one particular section of this report because I think it lays a foundation for any further discussion. She states:

Matrimonial property law is intended to provide guidance in resolving conflicts between spouses concerning the disposition of property. Matrimonial real property issues affect the interests of men, women and children. Accordingly, First Nation citizens are concerned that any legislative and nonlegislative responses should promote social cohesiveness while also providing fair and equitable treatment of spouses. First Nation people do not wish to see federal legislation that again divides community members. They feel that this would occur if the federal government acts in a way that would reinforce old stereotypes e.g. that all First Nation governments are antagonistic to the protection of individual human rights or that matrimonial property is a “women’s” issue. It is important to understand that when people say matrimonial property is not a women’s issue they are not denying that there are particular impacts on First Nation women. Rather this means that it is an issue that affects the entire community and communities must determine solutions.

We heard the minister earlier speak about the fact that this was a consultative process and that we should really just all adopt the bill.

Contrary to what the minister was saying, we have actually had a number of people speaking up quite strongly around the bill. Wendy Grant-John is a well-respected first nations woman. She has extensive experience and put together an extensive report. However, this is where the crunch comes. A press release issued by the Native Women's Association of Canada, March 4, states:

'Consultative Partnership' a Sham

The Government of Canada has acted unilaterally in trying to resolve the issue of a lack of matrimonial real property laws that apply on reserve. Despite engaging in a discussion process with relevant National Aboriginal Organizations, the federal government introduced legislation, The Family Homes on Reserve and Matrimonial Interests or Rights Act, that does not have the support of the Native Women’s Association of Canada...President Beverley Jacobs noted, “we have not experienced our relationship with the federal Department of Indian Affairs as being one of partnership or even consultation but rather it feels like another experience of colonialism”--

The Office of the National Chief of the Assembly of First Nations also spoke up about the process and stated:

While it was a positive and practical step forward to engage in dialogue with the Assembly of First Nations (AFN) and the Native Women's Association of Canada in the development of this legislation, the approach falls far short of First Nations' direction that the Crown should fully engage with First Nations in the developing policy and legislation that affects First Nations.

Furthermore, the fact that direction provided through this dialogue does not appear reflected in the tabled Bill, leaves us to conclude that the dialogue was of limited value in promoting and implementing a reconciliation approach regarding First Nations aboriginal and treaty rights and Crown sovereignty.

I believe that when we start on a process, ask people for their input, and then slam the door on them, that is a disrespectful process. Other members have spoken about the importance of having a bill that addresses matrimonial property. I quoted from Wendy Grant-John's report where is speaks about the fact that matrimonial property affects women and children disproportionately. However, it also affects men.

In fact, when meeting with a Six Nations representative, what he said to me was that in a first nations community, and I know this to be true, when there is a family breakup, it not only affects the man, the woman and the children who are involved in that relationship but it affects the aunts and the uncles, the grandmothers and the grandfathers, and the cousins, and it spreads throughout the community.

So, matrimonial property is a very important element that has to be considered in the context of the social impact it has on the entire community. However, I want to provide a bit of historical background, and again, this is from Wendy Grant-John's report. I will not go through the whole piece because it is a lengthy history, but she talks about the historical timelines that have led us to the place where men, women and children on reserve simply do not have a process that recognizes their cultural and social traditions. She states:

Prior to Colonization:

First Nations cultural norms, kinship systems and laws determine outcomes of marriage breakdown

Matriarchal kinship systems and egalitarian values were common

She goes into the colonial period where she talks about the notion of individual property rights and male domination in property and civil rights introduced by colonial governments, and efforts to assimilate first nations people, with the hopes of ultimately eliminating reserves altogether.

Then she goes through the lengthy history of denial of rights to men, women and children on reserves, whether it is the fact that women cannot vote at band councils or aboriginal people in Canada simply did not have the right to vote until the 1960s.

She goes through the whole history of the denial of rights and then addresses the 1985 Bill C-31, which attempted to reinstate women who had married non-aboriginal men. What a fiasco that bill has been, whether it was the fact that adequate resources were not put in place to address the impacts that bill would have on reserve, one of them being housing, or whether it was an illumination of status built into that bill, the second generation cutoff, which is continuing to play itself out, and nobody in the House has taken the time to address it.

I want to skip to the 1990s and bring it into the present day. Ms. Grant-John, in her report, outlines the following:

Several commissions of inquiry in Canada draw attention to the issue and the need for some action--

Eight UN human rights bodies express concern about the issue of matrimonial real property on reserves.

Litigation on lack of protection for matrimonial real property rights is launched by First Nation women organizations.

In 2003, the Senate Standing Committee issued its report--

In 2005, the House of Commons Aboriginal Affairs Committee issued a report--

In 2006, the House of Commons Standing Committee on the Status of Women takes up the issue--

Once again, we had lots of reports and no action.

In addition, I want to quote briefly from one of the United Nations bodies, the Convention on the Elimination of All Forms of Racial Discrimination. This is the report from March 2007. In that report, it again censures Canada. It talks about the fact that it regrets the lack of substantial progress made by the state in an effort to address residual discrimination against first nations women and makes a recommendation which states:

The Committee urges the State party to take the necessary measures to reach a legislative solution to effectively address the discriminatory effects of the Indian Act on the rights of Aboriginal women and children to marry, to choose one's spouse, to own property, and to inherit, in consultation with First Nations organizations and communities, including aboriginal women's organizations, without further delay.

One of the critical points, of course, is urging the government to adopt legislation but it also talks about the consultative piece.

In that same report, there are any number of human rights violations outlined, including the repeal of section 67 of the Human Rights Act. Of course, Bill C-21, which was before the House, went to committee. The committee amended it after hearing substantial testimony from first nations witnesses from coast to coast to coast. The committee listened very carefully to what was being presented and made some amendments. We are still waiting for the bill to come back to the House.

Again, it is another example of the government's complete disregard when it hears evidence that it does not like. It just disregards the evidence and decides to shelve the bill. We are still waiting for Bill C-21 to come back. In this particular CERD report, it also talks about resources. I will not read the whole thing but in part it states:

--the Committee remains concerned at the extent of the dramatic inequality in living standards still experienced by Aboriginal peoples. In this regard, the Committee, recognising the importance of the right of indigenous peoples to own, develop and control and use their lands, territories and resources in relation to their enjoyment of economic, social and cultural rights, regrets that in its report, the State party did not address the question of limitations imposed on the use by Aboriginal people of their land, as previously requested by the Committee. The Committee also notes that the State party has yet to fully implement the 1996 recommendations of the Royal Commission on Aboriginal Peoples--

Again, Canada is being censured in an international forum for its lack of progress on the living conditions on reserves.

Wendy Grant-John's report had made a number of specific recommendations. This piece of legislation before the House, Bill C-47, simply fails to address a number of the recommendations, whether it is on first nations jurisdictional rights, comparable rights and remedies, customary practices, alternative dispute resolution, the resources required to implement this bill or on the duty to consult.

It is well and good to talk about going out and consulting, but we have to do something with the information that we hear.

I just referenced the Royal Commission on Aboriginal Peoples report from 1996, and I want to refer to volume 3, Gathering Strength. This is an important context for the rights of first nations to self-government and to be treated on a nation to nation perspective. Property rights is an intrinsic part of the rights to self-determination.

In the RCAP report it says:

Acknowledging that it may be some time before full self-government and a new land tenure system for Aboriginal lands are in place, we recommended in Volume 2, Chapter 3 that, in the transition phase, Parliament pass an Aboriginal Nations Recognition and Governance Act to make explicit what is implicit in section 35 of the Constitution Act, 1982—namely, that Aboriginal nations constitute an order of government within the Canadian federation and can exercise law-making authority in areas they deem to be core areas of their jurisdiction. Such legislation would make resources available to proceed with rebuilding Aboriginal nations in anticipation of nation-to-nation negotiations for the full implementation of a new relationship.

It goes on to talk about the fact that the solution is obvious, and it is talking about the matrimonial matters for Indian persons living on reserve. It states:

Aboriginal communities should be able to legislate in this area. Federal and provincial governments should acknowledge the authority of Aboriginal governments to adopt laws with regard to the matrimonial home and to establish their family law regimes compatible with their cultures and traditions.

This is from the 1996 RCAP report, a document that the Assembly of First Nations in the past has reported on and has said that the past Liberal government and the current Conservative government have simply failed to move forward on the bulk of the recommendations. We see it again in the current piece of legislation before the House.

Others have made a number of recommendations as well in terms of what should be included in Bill C-47 and in reclaiming our way of being matrimonial real property solutions. It is an extensive and respectful report. It talked of elders, women and many communities from coast to coast. It outlines a number of issues, including violence against women and other transitional provisions. However, I want to read one quote from the report about the Native Women's Association of Canada. It said:

NWAC presented recommendations about non-legislative approaches and solutions that would assist women and their children following the end of a marital or common law relationship. While MRP is sometimes narrowly defined as relating only to the matrimonial home, the situation of individuals experiencing this issue brings in a wide variety of related issues. The individuals who attended our sessions spoke of membership, status, and the negative effects of Bill C-31 on individuals and communities. They talked about housing on reserves, including availability, safety, adequacy, repair, and overcrowding.

Earlier we heard the parliamentary secretary ask that if housing were fixed would everything be okay. Of course not. In my question for the member for Abitibi—Témiscamingue, I referenced the Auditor General's report on first nations child and family services program. In that report, under exhibit 4.1, she specifically talks about the fact that if we do not address the socio-economic conditions:

Many First Nations face difficult socio-economic conditions. Some communities are in crisis. According to First Nations, these conditions present different challenges for First Nations than for mainstream society, but are not taken into account in the child welfare system. There is also a need to address the underlying causes of child welfare cases.

I would argue that the same statement also applies when we talk about matrimonial real property. In Ms. Grant-John's report, in her summary of conclusions and recommendations, she also says that:

If First Nation governments are to be looked to, to provide rights and remedies comparable to those available under provincial and territorial laws, while taking into account the distinct nature of the land regime in First Nation communities, there must be a comparable scope of recognized jurisdiction, resources, capacity and institutional development. Otherwise First Nations would be placed in a catch-22 situation–they would be held to the same standard as provincial governments but not have the resources and capacity to achieve it

Without resources and capacity to achieve some of these things, it is simply an untenable situation and it is the same thing that we saw in the old Bill C-31 from 1985.

The UN Declaration on the Rights of Indigenous Peoples, in article 18, says:

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

We have heard the minister say that there was a consultative process. Many of us would argue that it was not a consultative process. Recommendation 18 in Ms. Grant-John's report talks about the elements that need to be in place for a consultative process. She says:

The Department should develop, as soon as possible, specific policies and procedures relating to consultation in order to ensure that future consultation activities can identify and discharge any legal duty to consult while also fulfilling objectives of good governance and public policy...

Then she names six elements that need to be in place. I will not go over these six elements, but they include things such as timely manner, relevant information, an opportunity for first nations to express their concerns, listening to, analyzing and seriously considering the representations, ensuring proper analysis by the Department of Justice of section 35 issues, seriously considering proposals from mitigating any potential negative impact and establishing a protocol for the development of legislative proposals. Much of that is absent in this legislation.

There are other examples in North America. I will cite an example from the United States, where there is a recognition of customary law, of tribal law. This comes from the Harvard study on economic development. This piece was “Lessons Learned from the U.S. Experience”. In this summary it says:

Upon examination, we conclude that the resolution of real property disputes under tribal law and by tribal courts has tended to be more successful than dispute resolution under the alternative regime.

It goes on to say:

In essence, this lesson reiterates several of the observations above. Because they possess complete jurisdiction over all the real property likely to enter the divorce disputes—

Some of the rules are a bit different because they are talking about trust and non-trust property.

—and because they tend to be more knowledgeable of the laws that govern such property and the possibilities for its disposition, tribal forums applying tribal laws are able to make complete settlements that are also generally perceived as fair.

It goes on to talk about the fact and says:

While Native nations that lack rules and systems to govern the division of matrimonial real property can rely on various examples and models to develop this legal infrastructure, they nonetheless face a number of decisions about what will work best for their citizens. Limitations on tribes' financial and human capital also may slow the development of appropriate laws and dispute resolution mechanisms. Thus, decisionmaking about rules and systems takes time, and the time it takes is unpredictable—each Native nation will move at its own pace on these issues, according to its own processes, and subject to its own constraints.

These are examples where first nations have been able to develop laws that do respect the rights of men, women and children on the reserves, that take into account the customary traditions, that allow for mediation or alternative dispute resolution and that involves some of the community traditions. If nations in the United States can do this and come up with laws that respect those human rights, surely we could also look at implementing the same piece in Canada.

The NDP will support the legislation in getting it to committee. However, I expect that we will hear from groups from coast to coast to coast on their concerns around it. I am quite certain amendments will be proposed to address some of the shortcomings in the bill. I look forward to a healthy discussion. Hopefully, once the bill comes back from committee to the House, if it gets through that stage, the government will move forward on proposed amendments, unlike Bill C-21.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, I want to acknowledge the great work of my colleague in the NDP and her commitment to improving the lives of aboriginal people across Canada. I had the privilege of serving with her on that committee, and I do not second guess her commitment.

The member did mention, however, that some groups opposed the process or the bill itself. She said “people spoke up strongly against the bill”.

I point out that this same occurrence is true of many other bills, in fact, probably every bill that comes before committee. There will always be those, who in spite of overwhelming broad based support, will not necessarily support the specifics of the bill.

As it relates to Bill C-47, the fact is clear that there was extensive consultation and collaboration. There were 109 consultation sessions with aboriginal groups and 135 consultation days at 64 different locations across Canada. No, not every group or individual sees this as a perfect bill, but it is clearly a step in the right direction.

I have two questions.

First, how would my colleague define adequate consultation and how long would she be willing to extend this consultation process and continue to slow down the final implementation?

Second, will she reiterate her support today for Bill C-47 at second reading so it can go to committee, be studied, have possible amendments and finally be implemented in the interests of all aboriginal people?

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, what was very interesting about the process that was undertaken, whether it was Ms. Grant-John's report or the work that the Native Women's Association of Canada undertook and proposed some possible solutions, was some of the key elements out of those consultative processes were not included in the legislation.

In a previous life I used to do consultation work. We used to call it the DEAD model of consultation, decide, educate, advise and defend. It had nothing to do with listening to people, taking the information they provided, having them included in drafting the legislation so it reflected the consultative process, which would then ensure we had a bill that was much closer to what people told the people who conducted the consultation.

I would argue that, yes, it was a positive step to start the consultative process, but when a huge percentage of the information presented to us is ignored, that does not actually count as consultation.

In terms of the length of time, I agree that this is a matter on which we need to move forward. Therefore, I welcome the bill going to committee so perhaps we can take some of the consultation, incorporate some of those recommendations into amendments and then bring a bill back to the House, which more reflects the consultation carried out from coast to coast to coast.

[Tina Keeper, Liberal, Churchill, MB]

Mr. Speaker, could the member maybe speak to the practical issues a bit more in terms of the bill and what the report said? The ministerial representative, Wendy Grant-John, did a very comprehensive report. One of the issues, in practical terms for people in my riding, is the access to the justice system. Just that in itself makes the terms of the bill almost untenable.

Would the member comment on that?

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I thank the member for her great work on the committee.

In terms of access to the justice system, first, there is some provision in Bill C-47 around provincial involvement in matrimonial real property.

There are a huge number of issues around access to the justice system in many rural and remote reserves and whether people will have adequate supports to access the justice system. The enforcement provisions in the legislation raise a number of questions around who will pay for some of the enforcement provisions and whether it will become a provincial responsibility without adequate resources attached to it.

However, Ms. Grant-John also recognizes clearly in her report that a cookie cutter approach will not work. We need an approach that recognizes some of the cultural differences among communities, that looks at some of the customary traditions, that looks at mediation, for example. I know some bands currently use mediation in marital breakdown, whether or not there are alternative dispute resolution processes.

It is a complicated area and we really need to take a hard look at Ms. Grant-John's report and look at implementing some of the recommendations in this legislation.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, a member on the government side said that there would always be a number of groups against any bill that came through Parliament.

I would think the Native Women's Association of Canada would be the primary supporter of such a bill. I know the member is very well versed in this area and on committee, and I appreciate the research she has done. I would assume this would be very close to, if not on the top of her list of the people who we would expect to support such a bill, especially because the people we hope to help with it are women. There may be other groups that would be more opposed.

I am not on the committee, so I am not as familiar with it, but I am puzzled as to why the one group we would expect would be on side is against it.

The second thing is related to resources. Does the member think it is kind of like déjà vu, related to the human rights bill, where one of the big complaints was that we would make a new law, but the first nations government would need to have some resources and training to implement it, but it could not be done right away? We see the same comments related to this bill. Would the member like to comment on that item as well?

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, the member for Yukon is absolutely right. The Native Women's Association of Canada, the native women's associations of Quebec and Labrador, and the Assembly of First Nations Women's Council have all spoken out quite strongly about the deficiencies in Bill C-47. The Native Women's Association of Canada undertook some work which resulted in the report,“Reclaiming our Way of Being: Matrimonial Real Property Solutions”. Again, much of what was recommended was simply not included in the bill. It is so disrespectful to ask people what they think and then disregard it without even a simple explanation about why those recommendations were not included.

On the resources issue, we have seen this time and time again. I talked about the 1985 Bill C-31 where there were not adequate resources to make sure that people who were being reinstated to the communities actually could move back to their communities. It is the same issue with Bill C-21, the repeal of section 67 of the Canadian Human Rights Act. Where were the resources for the Canadian Human Rights Commission to actually undertake to work with first nations communities to make sure that people had the resources and understood what this new piece of legislation might mean?

At committee yesterday, the Auditor General's office talked about stovepipe solutions. This piece of legislation is another stovepipe solution that does not look at the broader socio-economic status on first nations reserves, whether it is housing, whether it is education, whether it is support for mediation, alternative dispute resolution. Without those kinds of resources we have a piece of legislation that is just a small part of the puzzle. Without the support for that, it simply is not going to be effective.

[Tina Keeper, Liberal, Churchill, MB]

Mr. Speaker, I am pleased to participate in the second reading debate on 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. I am especially pleased to contribute to this debate as I am a Cree first nation woman of the Norway House Cree Nation on my paternal side and the Muskrat Dam First Nation in the treaty 9 area on my maternal side.

Matrimonial real property rights are a long-standing issue of great concern. Over 20 years ago the legislative gap was brought to the forefront by the Supreme Court rulings in Derrickson v. Derrickson and Paul v. Paul. The result of these rulings is that provincial and territorial laws relating to the division of matrimonial real property upon marital breakdown do not apply on reserve lands.

In the “Report of the Ministerial Representative: Matrimonial Real Property Issues on Reserves” which was delivered to the Minister of Indian Affairs and Northern Development on March 9, 2007, ministerial representative Wendy Grant-John contextualized the importance of finding solutions to this ongoing issue:

The impacts of the lack of matrimonial real property protections have been greater for First Nation women overall than for First Nation men due to current social roles and ongoing impacts from past discriminatory provisions of the Indian Act that excluded First Nations women from governance and property. The issue of domestic violence is linked to matrimonial real property issues. Protecting the interests of children is a central concern.

This is not the first time I am addressing this matter in the House. My hon. colleagues will recall Bill C-289, the private member's legislation which was introduced in the previous session of this 39th Parliament. While the bill before us today was introduced by the government, I understand that it is similar to Bill C-289, in that on neither was there a sufficient consultative process. The government thereby circumvented its legal duty to consult. The House does not need to take just my word on this. In a media release issued on March 4, 2008, the same day the bill was announced, the Native Women's Association of Canada said of the Conservatives' bill:

The Government of Canada has acted unilaterally in trying to resolve the issue of a lack of matrimonial real property laws that apply on reserve. Despite engaging in a discussion process with relevant National Aboriginal Organizations, the federal government introduced legislation, The Family Homes on Reserve and Matrimonial Interests or Rights Act, that does not have the support of the Native Women's Association of Canada.

In addition, on April 28, 2008 the deputy grand chief, RoseAnne Archibald, of the Women's Council of the Assembly of First Nations stated in a media release:

We are not convinced that the Bill as it stands is going to help First Nations women access justice. Let's be clear, First Nations women and families have waited too long already for equitable and workable solutions and this bill is at best a half-way measure.

First nations people deserve legislation that respects the Crown's legal duty to consult. They deserve legislation to reflect their interests, their customary laws, their traditional ways and their just place in this country.

Indian and Northern Affairs Canada may have initiated a discussion process with the Native Women's Association of Canada and the Assembly of First Nations as neutrally brokered by an appointed ministerial representative, Wendy Grant-John, yet the substance of the proposed legislation clearly indicates that the government in no way listened to the concerns or suggestions voiced by aboriginal women across this country.

As contained in the report by Wendy Grant-John, participants dismissed any legislative solutions that would infringe on aboriginal and treaty rights, or be impractical to implement due to problems of harmonization and conflict of laws, nor did they support a concurrent jurisdictional model. Support was given to potential remedies which were based on first nations practice and legal traditions and first nations views of land and family.

If indeed it is the intent of the government to address critical issues facing first nations women and children, then I find it difficult to understand why it has failed to listen to the voices of aboriginal women who have spoken out on the issue of matrimonial real property.

The lack of consultation by the government is deeply troubling for Native Women's Association of Canada President Beverley Jacobs. As she clearly stated in a news release on March 4:

I promised Aboriginal women who participated in providing solutions to this issue that their voices would be heard. I worked hard to get their messages to government but those messages fell on deaf ears.

In summing up her critique, she added:

In the end, we end up with a more worthless piece of paper.

In light of Ms. Jacobs' assertions surrounding the lack of consultation by the government in the formulation of Bill C-47, it is not surprising that the Native Women's Association of Canada and other organizations representing aboriginal women have expressed significant concerns.

The Native Women's Association of Canada does not support Bill C-47. In its estimation the legislation does not include non-legislative measures to address matrimonial real property, nor does it address the needs of individuals affected by matrimonial real property. Indeed, the Native Women's Association of Canada has outlined a number of issues of concern with the proposed legislation, a few of which I will briefly highlight.

First, it suggests that the proposed legislation lacks concrete information regarding the implementation plans and measures, including timeframes, resources for measures specified in the bill and resources for first nations to implement the legislation.

Second, the association believes there is a lack of information in relation to the provision of resources to first nations to enable them to develop their own laws for matrimonial real property and to develop capacity to implement either the proposed legislation or their own laws related to matrimonial real property.

Third, the proposed bill is also lacking in compassion for newly widowed spouses. According to the Native Women's Association of Canada, Bill C-47 sets out a time limit of 180 days for a widowed spouse to vacate a family home after the death of his or her partner. The Native Women's Association of Canada calls for an extension of this limited time period.

Fourth, Bill C-47 is perceived by NWAC to not be a remedy for the status quo of women and children being forced to leave first nations communities following the breakup of a marriage or common law relationship. The lack of adequate and appropriate housing in many first nations communities, which is not addressed in the proposed legislation, means women will continue to be forced off reserve to seek housing. In so doing, they will lose access to their family, social networks, their culture, language and the services provided to them on reserve.

Finally, NWAC is concerned that the proposed legislation will negatively impact aboriginal women who cannot access the legal system due to multiple factors, including poverty, lack of information and geographic isolation.

NWAC is not alone in its criticism of Bill C-47. The Assembly of First Nations Women's Council also sees significant problems with the bill as it stands. Specifically it outlines four areas of concern.

It asserts that the bill will ultimately force first nations women to seek remedies in provincial courts. This is neither timely nor financially viable for many first nations women in remote communities.

Aboriginal women asked the government to formulate legislation on matrimonial real property rights that reflected their cultural values and traditions. The proposed legislation does not reflect this desire and instead would compel first nations women to be subject to provincial and federal structures and rules that they had no part in crafting.

The AFN Women's Council also calls into question the constraints placed upon first nations in the proposed legislation. More specifically, it draws attention to the reality that the bill would impose a complex bureaucratic system with no support or consideration for implementation on first nations. In so doing, the bill fails to recognize the authority of first nations.

Finally, the AFN Women's Council is adamant that if matrimonial real property rights are to be meaningful for aboriginal women, the government must address the serious lack of adequate safe and accessible housing on reserve.

I believe the concerns of NWAC and the AFN Women's Council clearly demonstrate that the government did not meaningfully engage in a dialogue process with aboriginal women. Any claims to the contrary are clearly a misrepresentation of the facts.

The Minister of Indian Affairs and Northern Development is keenly aware of how disappointed first nations people are with the government's handling of the dialogue process leading to the formulation of Bill C-47.

In a letter addressed to the minister and dated April 8, Grand Chief Phil Fontaine of the Assembly of First Nations wrote:

--the federal government had many, many opportunities to address these matters properly and effectively. Unfortunately, the advice and direction of AFN and First Nations has not been heeded and I must point out that the First Nations assessment of the proposed legislation will likely be that it is unconstitutional in law and of no value to First Nations individuals or governments in practice.

Bill C-47 reflects another missed opportunity by the government to truly engage first nations people in a meaningful process to strengthen their capacity for self-determination. Instead of working collaboratively with first nations people to produce a solution to the legislative gap in connection to matrimonial real property rights, the government has conceived legislation that will impose a system upon first nations.

The most significant opportunity this government missed to promote first nations self-determination was its dismissal of the Kelowna accord. The Kelowna accord was a first step that 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.

Another more recent example of the government's unilateral approach to first nations governance in Canada was its decision to vote against the United Nations Declaration on the Rights of Indigenous Peoples. Time and time again, the government is claiming to improve the lives of first nations people in this country, yet it is doing nothing substantial to improve the capacity of first nations people for their own self-determination.

In conclusion, I want to reiterate that Bill C-47 is legislation that was not created through consultation with first nations people. The government has circumvented its legal duty to consult first nations on the issue of matrimonial real property rights and any assertions to the contrary are false.

As Grand Chief Phil Fontaine wrote in a letter to the Minister of Indian Affairs and Northern Development:

Real and lasting solutions must address the real problems...The quick fix approach does not work and, in fact, can harm First Nations collectively and individually.

I hope the minister will see fit to engage in consultations with first nations people in the future.

[Rod Bruinooge, Conservative, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Mr. Speaker, I appreciate the opportunity to ask a question of the member for Churchill. Of course she represents the part of Canada where I grew up and I know that many first nations in the north also have to deal with these important issues of matrimonial property and of course marriage breakdown. Although it is an unfortunate situation, it does occur, so I am very happy to hear that her party and of course her colleagues are supportive of bringing this bill forward to committee.

Does she believe that this plan, for which the Government of Canada sought input from over 109 different groups in 64 different locations, is a good foundation from which to start this process? Will it help the committee as it goes forward to bring in new information, new consultation and new witnesses? Does she believe that we must proceed on this important piece of legislation because it is needed in first nations communities?

[Tina Keeper, Liberal, Churchill, MB]

Mr. Speaker, nobody in this House is disagreeing with the fact that this is needed and is a necessary step. In fact, we all have stated in our speeches that this issue has come forward to Parliament, has been discussed and has been the subject of committee reports and Senate committee reports. In fact, the first nations organizations and the Native Women's Association of Canada have been participating in seeking a partnership toward solutions.

What is really important about what is happening on Bill C-47 and which we must never forget is this fact about the Native Women's Association of Canada and the Assembly of First Nations, particularly the Women's Council of the Assembly of First Nations. Over 100 chiefs in Canada are women. In my riding, we have a first nations women's council that does a significant amount of work in the Manitoba region. What we must not forget is that everybody felt hopeful that they were being engaged in a process, not only a dialogue process that was set out. In fact, even in Manitoba, the Assembly of Manitoba Chiefs and the first nations women's council were really proud and really encouraged to host a region-specific information session on matrimonial real property.

However, here I would like to make two points. One is that this does not meet the legal obligation of the duty to consult, which the government must be engaged in. That is one thing. Second, this is not about first nations people or the opposition parties not wanting to move forward toward a solution for matrimonial real property on reserve.

As I said earlier, I think people were very encouraged. All members of this House were encouraged and first nations women were encouraged that there was a process under way toward a solution, toward true dialogue, consultation and creating measures that would meet the needs of first nations in Canada.

However, the government then decided to table legislation without informing the Native Women's Association of Canada or the Assembly of First Nations and its Women's Council, and it created legislation that did not reflect the initial dialogue. Nor did it decide to take the next step toward consultation before tabling the legislation. As a parliamentarian and a first nations woman, I find it really difficult to understand why the government took that step.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I am going to pick up on what the Liberal member just said. I just want to clarify and take this a bit further. She spoke as a first nations woman and I have the utmost respect for her. However, she comes from the riding of Churchill, which—we can all agree—is relatively remote. There are glaring problems in those communities that I could talk about when it comes to Quebec as well: there are serious problems. The more remote the community, the more problems it might have.

What are the hon. member's expectations? What approach should we take in considering Bill C-47—an approach that would meet the wishes of the Assembly of First Nations Women's Council? Let us forget the matter of consultations for now, in terms of whether we should go back to everywhere. Since Bill C-47 will be referred to committee for more careful consideration, how should we approach it to truly understand the scope of the matter?

[Tina Keeper, Liberal, Churchill, MB]

Mr. Speaker, I think the member's question reflects the frustration of many people, not just in this House but within the first nations communities as well.

I would like to remind the member, though, about one of the things that I think happens in this process. For over 100 years, first nations people have had their lives and their rights trampled upon through a process of colonization. As for what is important about the duty to consult, I disagree with the member. We cannot underestimate the importance of the duty to consult.

What first nations people are saying to us over and over again is that they need to be part of the process and they need to be ensuring that our aboriginal treaty rights, as entrenched in the Constitution of this country, are respected. I do not even understand this concept of entrenching them in the Constitution if we are not going to respect them. The duty to consult is paramount in how we move forward.

In fact, we have had over 100 years of colonization and the imposition of policies and laws that have devastated our lives, most recently as Bill C-31, which I know the member is really aware of in terms of the implications. That is now going to the Supreme Court of Canada. The B.C. Supreme Court ruled in favour of the woman whose rights had been abused through the process of Bill C-31. This is going to have a huge impact in terms of status Indian roles in Canada.

This is really critical. This is what first nations women are saying in the dialogue sessions. They are not just saying that they have issues like severe housing issues. One of the primary issues, and I have to make this statement, is that they are concerned about their families. Through every system for first nations families, whether it is health, education or child welfare, they are not being provided money for prevention to ensure that their families stay together. And then we have the housing crisis.

Yes, all those day to day issues are issues that we have to hear about, but we need to hear from the women themselves.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I thank the member for Churchill for what was once again a very passionate speech on a topic that is very important to her residents, particularly the aboriginal people in her riding. She always puts forth the issues very eloquently, with passionate support for them.

I have three questions. One is on the consultation. I do not quite understand what the issue is with consultation. The Assembly of First Nations and the Native Women's Association of Canada each received $2.7 million for consultations. There were numbers of meetings, as the minister said.

The second thing that perplexes me is that the government hired someone to put forward a plan. The person was very well respected. In his speech, the minister talked about how well respected this person was, and yet the person did not follow major elements of the proposal.

Last, there seems to be an improvement or at least an acknowledgement by the government on collective rights. In the human rights bill that we discussed for so long, the government had neglected that completely, but here at least it has made some accommodation for it in this bill. However, from the input by some native groups, it is not sufficient accommodation.