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.