Mr. Speaker, I rise to speak to Bill C-8 concerning matrimonial real property on first nation reserves. This is the second time the government has brought the bill forward. Its previous iteration died on the order paper in 2008 when the Prime Minister broke his own policy and called an early election. It certainly undermines the government's position on this and other bills when it claims the importance of its legislative agenda only to pull the plug on Parliament.
This is not to suggest that the issue of matrimonial law and family law in particular on first nations communities is not important, far from it. There is a significant gap in the law and it is important that the gap be filled. It is fair to say that there is broad agreement by the department, by all parties in the House, by first nations governments, by women's equality groups and by members of the family law and first nations bar that something must be done. We can all agree that work has to take place to put a legal framework in place to protect the interests of women, of families and of children when there is a breakdown in a domestic relationship involving matrimonial real property on first nations reserve land.
Where our party differs from the government is on the approach to this complicated question. This is unfortunate. We saw only last week in the case of the Cree-Naskapi act amendments what difference a cooperative and inclusive approach can make. In that case the Cree nation whose interests were directly involved were able to work with government on a bill that received immediate support. It was a matter of intensive negotiation involving those most affected every step of the way.
I realize that reforming matrimonial property law in all first nations reserves is a question that is different and it is unique. It is unique in the sheer number of first nations involved that make the need for consultation and cooperation that much more important.
The minister claims that first nations groups were involved in a comprehensive consultation on this bill, but that is not what I am hearing on the ground. The minister may think he consulted, but the people he should have consulted tell me otherwise. It is incumbent upon government to be inclusive and transparent in its dealings with aboriginal peoples. It has to act in a way which is consistent with the honour of the Crown. The process leading up to Bill C-8 fails this test.
Since Bill C-8 was introduced for a second time at first reading, I have had meetings and other communications with numerous stakeholders. These include first nations women's organizations, first nations governments, regional and national assemblies of first nations, and individuals. The sheer number of representations made to me on this bill far exceeds the number I have dealt with on any other piece of legislation. Not only is the number of contacts striking, so is the virtual unanimity of what they are telling me.
Anyone who has been involved in aboriginal policy for as long as I have can say that we do not often hear many first nations leaders singing the same tune. The diversity of opinions can be stark. The differences of opinion can be animated. But on the question of Bill C-8, I have heard absolutely no one from first nations communities in any capacity speak in favour of the substance or the approach of the bill.
The Native Women's Association of Canada is opposed. Like others, including myself, while we recognize the need for a change to the legal framework, there has to be a recognition of broader issues associated with family law in first nations. There are issues of access to justice, violence prevention and the balancing of individual rights and the collective rights of first nations peoples which are left unaddressed. In fact, NWAC has argued that Bill C-8, far from protecting the rights of women, diminishes them.
The Assembly of First Nations has passed policy resolutions supporting a reconciliation of first nations, provincial and federal jurisdictions over matrimonial real property; a reconciliation, not an imposition.
The AFN also supports a broader approach, including both legislative and non-legislative approaches to family law issues. The AFN Women's Council has also rejected the government's matrimonial real property approach, both in this bill and in its former incarnation.
The government defends this bill by invoking the language of rights. I cannot say that I accept that argument, not from a government which continues to drag its heels on the United Nations Declaration on the Rights of Indigenous Peoples. In fact, it is an embarrassment to Canada on the international stage that the Conservative government has so actively opposed that important international document.
Article 3 of the declaration states:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Article 5 states:
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions...
Article 20 states:
Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions...
Not only is the approach in Bill C-8 inconsistent with international consensus on the rights of indigenous peoples, it is inconsistent with what Canada heard during the Royal Commission on Aboriginal Peoples. The royal commission recommended that:
Aboriginal nations or organizations consult with federal, provincial and territorial governments on areas of family law with a view to (a) making possible legislative amendments to resolve anomalies in the application of family law to Aboriginal people and to fill current gaps...
I would ask people to note the language that aboriginal nations consult with government, not that government imposes top-heavy legislation of its own. It is troubling that despite being rejected by the very people whom it purports to protect, the government forged ahead with the bill anyway.
Not only that, Bill C-8 also flies in the face of what the government's own ministerial representative recommended. Many of Wendy Grant-John's recommendations were ignored, including those concerning certificates of possession and the registration of spousal interests, the enforceability of first nations dispute resolutions and a statutory review of the legislation after three years.
Legislation on its own, without looking at the broader picture and without taking a holistic approach, may well do more harm than good. Imposing federal legislation is not a positive approach in the new era of relations with aboriginal peoples that should have been opened up with last year's historic residential schools apology. Things have to be done differently.
There may well be a place for federal legislation but only in a way that respects and encourages appropriate and holistic first nations law and non-legislative approaches to family law issues, domestic violence and matrimonial law.
Another issue which has to be addressed as part of a broader solution is that of on-reserve housing. The questions of matrimonial real property, domestic violence and access to recourse on the breakdown of a domestic partnership are intimately tied to the availability of housing on first nations land. That is true both for short-term housing solutions such as family shelters or safe houses and long-term housing, making an adequate number of homes of adequate quality for the needs of first nations populations.
The minister says that Bill C-8 would allow for first nations solutions. However, first nations have not been given the time or resources that would allow them to develop and implement their own family law and other support structures consistent with the diversity of first nations cultures.
The government's approach is one size fits all. It has not worked in the past and it will not work in the present or in the future. Canada learned that lesson the hard way through the residential schools experience.
There are legitimate questions about the verification process and the ratification rules set down which first nations would have to abide by in order to have their own law recognized.
To first nations people, this hearkens back to the days of the Indian agent, when they had an overseer, someone who would say what was right or what was wrong, what was appropriate or inappropriate in first nations communities. It flies in the face of the inherent right to self-government and the nation to nation relationship. It is a colonialist approach, an assimilationist approach, a paternalistic approach, and believe me, I use those words deliberately.
I ask, what about the first nations cultures, traditions and legal customs which are based on matrilineal descent? Many first nations have their own matrilineal or other customary law concerning marriage and families passed down through the generations. There are cultures with matrilineal descent, others which place special emphasis on extended families or family relationships which go beyond the western emphasis on the nuclear family. These aspects of first nations culture, in many cases, form customary law.
Similarly in Canada, outside Quebec which has its own unique civil code, we have customary laws too. They are no less laws because they stem from custom. They stem from an old English custom with an old English name. That customary law is called the common law. These first nations laws can be used to fill the legal gap, which Bill C-8 attempts to do so clumsily. First nations need the time and resources to do so, time and resources which the government, in Bill C-8, fails to give.
All parties need the time for full and transparent consultation. First nations need the time to develop and plan their own solutions, solutions which respect and promote their own cultural values, customary law and particular social and economic circumstances.
Government can and should be a partner in that process with the first nations. Government can and should provide the necessary support, including assisting first nations and first nations women and families to address access to law, law enforcement and enforcement of orders.
Government must act more concertedly to address the broader social and economic issues that are intimately tied up with family law on first nations reserves, including violence prevention, health care, addictions and housing. None of these social ills is unique to first nations. Unfortunately, that is far from being the case.
Government must give first nations communities and their governments just that additional window of time to develop solutions which can be built from the ground up, instead of being imposed from the top down.
A better approach would be to work productively and transparently with first nations; work with first nations governments to develop their own laws and the administrative support for their operation; work with first nations governments and citizens on the full spectrum of approaches, legislative and non-legislative, to family law. Where federal legislation is required, first nations should be brought to the table to help in the drafting of a bill that can obtain a much broader consensus. The government should engage in that intensive consultation that is required.
To that end, I would like to give the government the time it needs to work cooperatively with first nations on the complicated issue of matrimonial real property. That is why I move:
That the motion be amended by deleting all the words after the word “That” and substituting the following:
“Bill C-8, 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, be not now read a second time but that it be read a second time this day six months hence”.