Mr. Speaker, I appreciate the opportunity to rise this afternoon to say a few words on this very complex issue. It involves a number of sub-issues and when we boil it all down, it is not simple.
First, I will support the legislation, when it comes for a vote, to send it to committee. There is some stakeholder opposition. I have read a lot of the points, the memos and the briefs that come in from different interest groups and I have tried to digest them as best I can. However, I will support the bill so it can go to committee, receive a full airing, have the refinements or improvements made and then come back to the House after the committee has deliberated on it.
We have a situation that has developed over the last number of years. We have a clash between what happens on reserves and what has changed substantially and considerably in Canadian society over the past 50 years. Sometimes that is not a bad thing, but in this case it cries out for redress.
My instincts, as a parliamentarian, are to proceed very carefully and cautiously, after much consultation with our aboriginal brothers and sisters, before we move on this issue. However, it is an issue that calls for a legislative solution, and hopefully it will be an interim legislative solution, but it is not an issue that we can ignore as parliamentarians. In my opinion, it is a basic matter of human rights for women and children living on reserves, an issue that cannot be ignored.
To frame the debate, it is interesting to consider the changes we have seen in society over the last 50 years. I started to practise law about 32 years ago. It was changing then, but let us go back a few years before that.
The basic rule of law was that a married woman, if there were separation or divorce, had very little in the way of rights. If individuals were not married, living common law, there were no rights. In most instances the title to the property, whether it be a farm or a home, was in the man's name. This concept has basically disappeared from the legal nomenclature, but there was an interest called dowry. A woman had a one-third life interest in the property and she had to sign off if the property was sold or mortgaged, but that right did not give her any one-half interest if there were a separation or divorce.
We can see how society has evolved and changed over the last 50 years. It was not transformative. It came gradually. We had certain provinces enact family property laws. They were debated, interpreted and changed. We came forward with no fault divorce legislation, where situations, like adultery, did not have to be proven, the best interest of the children became a concept in our matrimonial law. Looking back, from May 14, these are concepts that most Canadians would accept as basic human rights.
Then there is the situation that exists on aboriginal reserves right now. This goes back to a 1986 court decision regarding a situation where a husband and wife, whether legally married or common law, separated. The court decided that the provincial court did not have any jurisdiction to adjudicate upon that land because it was located on a federal reserve, which came within federal jurisdictional powers. It certainly left a very large legal vacuum where people were basically left with no rights. Provincial law did not apply.
Off reserve aboriginals did not face the same predicament as provincial law would apply in this case. If an off reserve couple lived in a city, town or rural area in Canada, outside of an established reserve, and there was a separation, the normal matrimonial laws in the province would apply.
There were a number of problems. The biggest legal vacuum was there was no jurisdiction to adjudicate the problem. Then it was complicated further because of the fact that on most reserves the land is not owned by individuals. It is owned collectively by the reserve. However, the couple or individual would have a possessory interest in the property, which complicated it a little further.
Therefore, there was what I consider to be a tremendous vacuum in the law if a couple separated, especially if it dealt with domestic violence or a situation where the rights, safety or protection of children were involved. In particular cases, the judges were handcuffed. No temporary or permanent restraining order could be issued. The court could not entertain a partition for the sale of the property. There would be nothing to preclude one of the spouses from selling whatever possessory interest he or she had, or a mortgage on the same. Basically, there was a situation where the basic human rights of individuals were and could be violated, which cries out for a legislative solution.
It has been a very significant issue and it is one that has been before the House several times before. It has been a subject of the discussion in debate in at least three parliamentary committees and it has been discussed in the House. As I indicated earlier in my remarks, it does not have the total support of the stakeholders: the Assembly of First Nations, the office of the grand chief and the Native Women's Association of Canada. They all take the position that they are presently against the legislation.
I read their briefs in the preparation of my remarks. I think they are trying to broaden the scope of the whole argument that it does not go to the causes of the particular situation. It does not address situations like poverty, education, health or the lack of access to water. However, that is not the purpose of the bill. The purpose of the bill is to get at this issue.
There is no attempt, and one could argue it should, to deal with the larger issues, and I do not think anyone in the House or any Canadian would suggest that they should not receive attention from the government. The bill deals with a very specific instance. It should be dealt with and should not be delayed that much longer.
That is where I am coming from in my remarks. It is time to send this to a committee and get further input and dialogue from the major stakeholders dealing with this issue.
Going back to the briefs received from some of the aboriginal leadership, the suggestion is that it does not acknowledge the inherent treaty rights of first nations. This is should be acknowledged. However, this is interim legislation only. It acknowledges in the legislation that the first nations and the bands should take this on themselves. It provides a certain framework for them to do that. It provides a certain time for them to do that. I hope they will go ahead and do what is right and necessary, so the necessary governance is there, so the existing issue will not exist once the first nations develop their own provisions for dealing with this issue.
Again, this is an acknowledgement that they, their governments and their leadership should take on. I consider this to be interim legislation, but it will prime the pump and get the thing going. Hopefully, the various bands across the country will address the situation.
We must not forget that this court case was adjudicated upon in 1986. We are here 22 years after the fact and nothing has happened since then. Until that happens, this legislation will apply.
Again, I think all Canadians, aboriginal and non-aboriginal, would like to see this happen, in the interim. If there were a situation where a legally married couple or a common law couple separated or divorced, that there would be an equal division of whatever matrimonial assets were in the family. However, no person would be allowed to sell or mortgage any interest in the title, whether possessory or real, in the property. If there were a situation dealing with domestic violence, where the rights and interests of the children could have been affected, this could be subject to either an interim or a permanent court order. At the same time, the bands would be notified of any of these proceedings. This is very important in the whole process.
Again, as I said in my earlier remarks, when I first looked at this issue, it was something with which I wanted to proceed with tremendous caution and with the greatest amount of consultation. However, it is an issue on which Parliament has to move. I hope we are not here in 22 years time talking about that issue.
When I read the briefs from some of the stakeholders, they wanted to tie in a lot of the non-legislative issues, such as poverty, housing, water, access to justice and governance issues, and I agree with what they have said. There is no greater stain on Canadian society than the present plight of our aboriginals.
When I look back, it is something that cries out for action from the government. I look back at the tremendous opportunity missed at the Kelowna accord. In that room we had all 10 provinces, the major aboriginal groups, the Government of Canada and all the major stakeholders ready to sign on the dotted line. I would not suggest that would be the solution to all the problems. However, it was a platform. It was a start. Perhaps it would not have ended the bickering that goes on or the blame and accusations that fly back and forth in here every day, but it would have started the dialogue. I had so much hope for the initiative and I was so disappointed when it did not continue.
Again, however, we have to deal with the present, not the past.
I should say that I chair the public accounts committee, and we are certainly not the solution to these problems at all, but every year and sometimes twice a year we get very unpleasant and troubling reports from the Auditor General of Canada about the plight of our aboriginal citizens presently on reserve. The second-last one was about the education system on reserves or aboriginal communities. It was a distressing and troubling report. The job is not getting done.
The report we received last week talked about aboriginal children in custodial care, about the lack of guidelines and, really, about the lack of care. It is really troubling. We are talking about kids who are from three to seven years of age and they are being treated like this by our system. Certainly it did not come in for a hearing yet, but it is just another troubling chapter that has come to the committee from the Auditor General of Canada.
We make recommendations, but it is the same thing in four or five years. The same department comes back and things are no better. It is such a frustrating experience to see this year in and year out. All I can say is that the present system does not appear to be working in the best interests of our aboriginal citizens.
In conclusion, I will be supporting the bill going to committee. I hope that the Standing Committee on Aboriginal Affairs and Northern Development has a long look at it and gives it a full airing. This is the framework. I certainly hope that there will be amendments and changes made to the bill. I hope committee members do not ignore the inherent right of our aboriginal communities, our first nations, and certainly do not ignore section 25 of the Canadian Constitution, and I hope they will come back to the House with a final draft of the legislation.