Madam Speaker, I am speaking today to the motion to adjourn debate on Bill C-8 for six months. I, too, will recommend that the NDP not support the motion to amend and that we work toward getting the bill to committee.
It is a very difficult decision. I believe Bill C-8 on matrimonial real property is a deeply flawed legislation. However, it is well past time to work toward solutions. We simply cannot, in good conscience, continue to leave this matter unresolved. I want to explain why I say that.
We have a long, sad and sorry history when it comes to matrimonial real property rights in Canada. Sadly, it reflects on both past Conservative governments and past Liberal governments. This is an occasion where both governing parties hold full responsibility for not taking earlier action.
I want to review a historical timeline so Canadians are well aware of the fact that this issue has had debate after debate and report after report, and we have failed to move toward any kind of solution. It is largely women and children who are impacted by this lack of action, but men and women continue to suffer in aboriginal communities. They do not have any legitimate legal recourse to see an appropriate division of the matrimonial home.
When I talk about the historical timeline, there are a couple of key points. I think this is a good reminder. Prior to colonization, first nations' cultural norms, kinship systems and laws determined the outcomes of marriage breakdown. Matriarchal kinship systems and egalitarian values were common. We have a history where, prior to contact and colonialism, first nations had their own rules and regulations when families disbanded.
Part of what first nations have been demanding is a recognition of those laws and customs. First nations will say that they are fully intent on honouring charter obligations in every respect. However, there is a long history. First nations occupied this land for thousands of years. They had developed systems to deal with marital breakdown.
Many things happened during the colonial period. The notion of individual property rights and male domination in property and civil rights were introduced by colonial governments in an effort to assimilate first nations people, with the hopes of ultimate eliminating reserves altogether. One sees this transition from laws that had been in place for thousands of years to a colonial period, where first nations were severely impacted by a notion of male domination. Many of the kinship and matriarchal systems were disbanded.
Post-Confederation, we had Indian legislation. There was a whole series of things, but first nations women were not permitted to vote in band council elections. There was gender-based discrimination in wills and estate laws. Throughout this period, the notion of equality rights did not exist in Canadian law. Women on and off reserve had very few legal protections from matrimonial property and were at a significant legal disadvantage compared to men. The Indian Act does not address matrimonial property rights.
Finally, in 1986, people started to wake up. Again, this is in the context of why we should not abandon debate. Court cases that took place 1986 finally said that things had to change. Two cases concerning the extent to which provincial laws and matrimonial property might be applied to individual interest in reserve lands reached the Supreme Court of Canada. One of them was Derrickson v. Derrickson. The other was Paul v. Paul.
The Supreme Court decided that provincial laws could not apply in any way that would change any individual property interest that a first nation person may hold under the Indian Act. Further, it went on to say:
Silence of the Indian Act and the non-recognition of First Nation jurisdiction on the matter means many basic protections not available to male or female spouses on reserves; women are particularly negatively impacted by the legislative gap because they still are more often the primary caregivers of young children.
Twenthy-three years ago Supreme Court rulings indicated that the federal government was allowing provincial law to erroneously apply on reserve and that there needed to be a federal resolution to recognize the special status on reserve. This is one of the primary reasons New Democrats believe we need to get this to committee so we can talk about the availability of other solutions. What proposals are the men and women in first nations communities putting forward?
We have the national organizations, but there are other voices in these communities to which we need to listened. We know some customary laws are already in place. Let us take a look at some of those examples.
From 1990 to the present, and again this is the sad history, eight United Nations human rights bodies have expressed concern about the issue of matrimonial real property on reserves. Internationally we are being pointed to for this lack of movement on matrimonial real property. Litigation on lack of protection for matrimonial real property rights is launched by a first nations women's organization. Women's organizations have been saying they need solutions to this.
In 2003 the Senate Standing Committee on Human Rights issued its first report calling for legislative action on the question, consultations with first nations and first nations organizations.
In 2005 the House of Commons Standing Committee on Aboriginal Affairs and Northern Development issued a report calling for legislative action on the question and recognized the inherent rights of first nations respecting matrimonial real property.
In 2006 the House of Commons Standing Committee on the Status of Women took up the issue of matrimonial real property on reserves and it continues to monitor it.
In that context, with so many different bodies, both internationally and within Canada, calling for us to move towards some action, I believe it is important. The Liberal member talked about playing politics. It is important that we do not play politics with this matter and that we take the opportunity to get it to committee so we can call in witnesses from across the country, so we do not play politics with it.
I want to refer back to the government response to the fifth report of the Standing Committee on Aboriginal Affairs and Northern Development, this was AANO 38-1. It talked about the fact that since 2001, Indian and Northern Affairs Canada has done significant research and has produced a number of publications on the issue of matrimonial real property, including a comprehensive discussion paper to better understand the issues from a sociological and legal perspective.
Since all of this work has already been done, it seems important that we look at it, that we look at the sociological and legal perspectives and that we look at some of the proposals that have come forward.
I want to turn to some international reports I had cited. I quoted from one within Canada. The Committee on the Elimination of Racial Discrimination issued a report on this, and this is the context for why we should debate this motion and the bill and get it to committee for a fuller review. It states:
The Committee notes with regret the lack of substantial progress made by the State party in its efforts to address residual discrimination against First Nations women and their children in matters relating to Indian status, band membership and matrimonial real property on reserve lands, despite its commitment to resolving this issue through a viable legislative solution...
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 organisations and communities, including aboriginal women's organisations, without further delay.
Once again, an UN report notes the lack of movement and the lack of action in Canada. I do not know how many more reports we need to have to say that we need to take action.
The Liberal member suggested that we put this in abeyance for six months. This is referred to as a hoist motion, which effectively kills the legislation. I have no faith that during the six months this bill is on the back burner, we will see the kinds of consultation required to ensure the bill will meet the needs of first nations women and men.
I want to talk about consultation. That is part of the challenge of the bill before us. The government claims that there was consultation. However, when we hear from the organizations tasked with doing the so-called consultation, their feedback has been it simply has not been consultation. It has been discussion and perhaps education. However, it does not meet the terms of what has been set out as meaningful consultation.
I want to refer to recommendation 18 that came from the “Report of the Ministerial Representative of Matrimonial Real Property Issues on Reserves”. Her report was supposed to be the precursor to this legislation. However, most of her recommendations were not included in the legislation. It is not that New Democrats think this legislation will solve the problems. We think this is an opportunity to look at other solutions.
I want to quote from the report about consultation. It states:
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 by:
1) Ensuring First Nations have relevant information to the issues for decision in a timely manner;
2) Providing an opportunity for First Nations to express their concerns and views on potential impacts of the legislative proposal and issues relating to the existence of a duty to consult;
3) Listening to, analyzing and seriously considering the representations and concerns of First Nations in the context of relevant legal and policy principles including their relationship to other constitutional and human rights principles;
4) Ensuring proper analyses by the Department of Justice of section 35 issues relating to any proposed legislative initiative are thoroughly canvassed before, during and after consultations;
5) Seriously considering proposals for mitigating potentially negative impacts on aboriginal and treaty rights or other rights and interests of First Nations and making necessary accommodations by changing the government’s proposal
6) Establishing, in consultation with First Nations, a protocol for the development of legislative proposals.
That is a clearly outlined process of what consultation should look like, and we know that is not what happened in the development of Bill C-8.
Witnesses coming before a committee should not be constituted as consultation. The duty to consult rests between the government and first nations. It is not the responsibility of the aboriginal affairs committee to conduct the consultation on behalf of the government.
However, the committee can bring forward solutions and recommendations, which the government can choose to adopt. It does not prevent the government from withdrawing the current legislation and developing legislation that more accurately reflects the concerns and the proposed solutions, which we know first nations communities and organizations will bring forward.
I know we are debating the hoist motion rather than the actual legislation at this point, but part of the challenge we face with the legislation is the difficulties of implementing it in communities.
I want to again come back to the Convention on the Elimination of Discrimination against Women. People say that the legislation will solve the problems around matrimonial real property in communities, and that is simply untrue. What it will do is provide a legal mechanism to determine the division of the matrimonial home, but it will not provide solutions to the severe housing crisis that exists on most reserves across the country.
In its report of 2007, the Committee on the Elimination of Discrimination against Women said that it remained concerned at the extent of the dramatic inequity in living standards still experienced by aboriginal peoples.
In this regard the committee, recognizing the importance of the right of indigenous peoples to own, develop, control and use their lands, territories and resources in relationship to their enjoyment of economic, social and cultural rights, regrets that in its reports 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:
In the light of article 5 e) and of general recommendations 23 (1997) on the rights of indigenous peoples, the Committee urges the State party to allocate sufficient resources to remove the obstacles that prevent the enjoyment of economic, social and cultural rights by Aboriginal peoples. The Committee also once again requests that the State party provide information on the limitations imposed on the use by Aboriginal people of their land, in its next periodic report, and that it fully implement the 1996 recommendations of the Royal Commission on Aboriginal Peoples without further delay.
Again, in the context of this delaying motion, the reason it is important to talk about matrimonial real property is that it is urgent that at the committee we also talk about non-legislative solutions and what is really needed to support families on reserve, whether it is adequate housing, access to education or access to conflict resolution and mediation that could actually prevent family breakup.
In the report on the first nations child and family services program, the Auditor General talked about the fact that there is so little investment in preventive measures that children are being removed from their homes. The agencies have a mandate to remove children, but they do not have a mandate to support families, keep those families together and keep the children in their homes.
I would argue that rather than delay talking about these very serious issues, we should welcome the opportunity to talk about non-legislative options. We should welcome the opportunity to talk about what kind of housing is needed on reserve to support families. If a family does need to break up, the reality right now is that women and children can be forced to leave their reserve, their home community because there is not any housing for them.
I find it difficult to support the delay of talking about these very serious fundamental human rights issues. I would suggest that first nations communities from coast to coast to coast do have some solutions that would be welcomed by all members of the House.
I am running out of time, but I want to touch on a couple of other issues. Several first nations organizations across this country are working on issues around citizenship. That is fundamental to what we are talking about. Who gets to determine who has citizenship in a particular nation? I know that Six Nations and NAN are working on citizenship codes. This would be an opportunity to bring forward those citizenship codes to the committee in the context of matrimonial real property. Fundamentally, that is what we are talking about. We are talking about who has a right to live on reserve, who has a right to the house, and who has a right to that citizenship.
Perhaps it will also give us an opportunity to talk about the 1985, Bill C-31, which reinstated the citizenship of women who married non-aboriginal men and lost their citizenship. But of course there were not the non-legislative solutions to deal with the housing issues these women were facing.
This is an opportunity to have a much broader discussion on human rights, on the aspects that are impacting on families, on the more creative solutions, the more respectful solutions, the more traditional solutions that would serve first nations and their families in a reasonable fashion.
I believe it is important that we get the bill to committee for a full discussion.