Debates of Nov. 1st, 2012

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, I want to follow up on my question to the minister and again insist that the bill needs to go to the aboriginal affairs committee, not to the status of women committee.

Regarding the record of the status of women committee, including its recent study, “Improving Economic Prospects of Canadian Girls”, I would refer the members to the dissenting report of the Liberal Party, including the hon. member for York West. We were appalled that despite all of the evidence gathered from people such as Vivian O'Donnell and Susan Wallace, the committee refused to include any recommendations in the report, stating that it would exceed the mandate of the Minister for Status of Women. It thinks its mandate is the 40-year old written mandate for status of women committee, as though it were the responsibility of the current Minister for Status of Women.

It is clearly an issue, as my colleague from the NDP has said, for the Minister of Aboriginal Affairs and Northern Development. Given the complexity of dealing with property and aboriginal rights, those can only be properly studied at the aboriginal affairs committee. I cannot repeat that strongly enough. It is totally inappropriate that this go to a committee not used to studying legislation, and which has, in its very last study, refused to deal with the issue of aboriginal girls and young women, stating that it is not the specific responsibility of that minister or her department.

The Liberal Party does not question the need for legislation to address the legal gaps and other problems surrounding family breakdown for first nations living on reserve.

Many national and international reports have called on Canada to address the legislative gap with regard to matrimonial real property on reserves, and a number of parliamentary committees have examined this issue.

However, the bill would not effectively deal with the problems associated with the division of matrimonial property on reserve and would fail to provide first nations with the tools to implement appropriate measures for families to resolve disputes safely and in a culturally appropriate way.

Bill S-2 would not improve gender equality for aboriginal women, as claimed by the Conservative government. Instead, it would create the potential for new open-ended interests for non-first nations individuals on reserve and would fail to address the root causes of family breakdown and domestic violence, namely the lack of housing, inadequate funding for child welfare and inadequate access to legal aid for aboriginal women.

The Liberal Party of Canada believes that all legislation, or policies concerning aboriginal peoples, requires the government to work with, nor for, aboriginal peoples, as we promised to do in the original treaty relationship and as expressed by the UN Declaration on the Rights of Indigenous People. It commits Canada to uphold indigenous rights and ensure first nations enjoy the same quality of services and care as other Canadians. It explicitly says that there must be free, prior and informed consent on any issues dealing directly with first nations in Canada.

We also must recognize and affirm aboriginal or treaty rights as laid out in section 35 of the Constitution Act, 1982 and Canadian courts. As well, it is imperative that we provide sufficient resources so as to guarantee that aboriginal communities have the capacity to implement the legislation and our policies on which we have worked collaboratively. Unfortunately, yet again, the government has failed to meet any of these criteria in the approach to matrimonial real property on reserve. It is raining down legislation in “thou shalt” kinds of ways without the resources and the support to actually achieve the objectives of the legislation.

Yet again, consultation has been inadequate. Consultation requires both a substantive dialogue and the government to listen and, when appropriate, incorporate what it hears into its approach. Although consultations were done on MRP in general in 2006-07, consultations were not done specifically on Bill S-2, in particular prior to the introduction of the bill.

The Native Women's Association of Canada is not confident that the legislation will solve the problems associated with matrimonial real property on reserve and has been clear that the current bill fails to address many of the recommendations repeatedly raised each time the legislation has been brought forward. NWAC held meetings with first nations women from its provincial and territorial member associations and produced several reports that included their views to address MRP. Bill S-2 still neglects most of those recommendations.

The Conservative government failed in its constitutional duty to consult the first nations when drafting this bill and did not take into consideration the serious problems identified by stakeholders when the Senate examined Bill S-4, the previous version of this bill, in the last Parliament.

The non-derogation clause in Bill S-2 does not sufficiently affirm constitutional rights to self-government, that is nothing in the act shall be construed “so as to abrogate or derogate from...aboriginal or treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982”. This is not acceptable.

As my colleague from the New Democratic Party has said, the resources are inadequate to achieve the objectives of the bill. As I said In the letter I sent to the Minister of Aboriginal Affairs a year ago August, it is completely unfair to legislate when the resources are not there to implement the objectives of any legislation.

This afternoon we will see the same thing on the water act, that “thou shalt have clean drinking water” and there are no resources to make sure it happens. This is exactly the same thing. In the objective of the bill on matrimonial real property, there are just not the resources to actually give women real choices with their families for them to remain safe in situations of violence.

Any proposed measure must be based on a holistic approach designed to address family breakdowns and domestic violence in aboriginal communities and tackle the problems of poverty, the housing shortage and the tragic legacy of the residential school survivors and their families.

In 2006, then INAC minister, Jim Prentice, announced that the nation-wide consultation on MRP reserves would take place, and appointed Wendy Grant John as the ministerial representative.

The report of the ministerial representative proposed establishing new stand-alone federal legislation that would be based on recognition of first nations jurisdiction and respect for aboriginal and treaty rights, while establishing interim federal rules that would apply until the first nation had exercised its jurisdiction and enacted its own laws on MRP.

The report of the ministerial representative also noted:

The viability and effectiveness of any legislative framework will also depend on necessary financial resources being made available for implementation of non-legislative measures...Without these kinds of supports from the federal government, matrimonial real property protections will simply not be accessible to the vast majority of First Nation people.

At the time that report was tabled, the time we were able to see it, everybody who we spoke to said it was imperative that the government of the day not be allowed to cherry-pick this report. Yet cherry-pick the report is exactly what the government has done.

The government has not provided any additional resources to help first nation governments build the capacity needed to address the underlying issues, meet their new obligations under the bill, or allow their citizens to have access to the legal system or develop new community-specific laws regarding matrimonial real property.

The provisional federal MRP rules are based on a provincial court system and require first nations and their citizens to take on additional costs to access the court system.

In many rural and remote communities, the cost of legal access, including transportation, can be prohibitive. Yet there is also no commitment to provide funding for alternatives to the court system, like community-based dispute resolution, which would be more cost effective and culturally appropriate.

Further, Bill S-2 was tabled without a plan and without resourcing to address the myriad issues that contributed to family breakdown on reserve and the disproportionately high levels of domestic violence against women.

Witnesses who appeared before the Senate committee mentioned the chronic shortage of housing on reserve, the underfunding of child welfare and the lack of shelters and temporary housing. These are substantive issues that must be addressed as part of the federal government's MRP approach.

The government has made no commitment to provide resources to help first nations move past the provisional federal rules and develop their own MRP code, other than to promise to create a centre of excellence, subject to further future Treasury Board approval.

The government's approach to developing the bill has been misguided and the resulting legislation is totally inadequate.

[Susan Truppe, Conservative, Parliamentary Secretary for Status of Women]

Mr. Speaker, the bill clearly states that it does not affect the title to reserve lands or change the collective status of reserve lands and it does not allow non-members to make claims of ownership to reserve lands. The provisional federal rules will not lead to non-Indians or non-members acquiring permanent interest in reserve land because exclusive occupation orders and emergency protection orders are temporary.

Input obtained during the national consultation process indicated that an appropriate balance was needed between the individual rights of on reserve residents and the collective interests of first nations in their reserve lands. The legislation achieves the objective of filling the legislative gap on reserves for first nation members and non-members, while respecting the principle and non-alienation of reserve lands.

The provisional federal rules also include provisions to ensure that first nation councils can make representations to the courts, for instance, to highlight the collective nature of the land. This does not apply, however, in the case of emergency protection and confidentiality orders.

I find it insulting that the Liberal member, who voted against establishing the Canada Human Rights Act on reserves, refuses to give women on reserves the same rights she has.

Why will she not help aboriginal women?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, I will leave that alone. It is totally insulting and inappropriate in the House. Those of us fighting for the rights of aboriginals everyday are on this side of the House and the aboriginal people in Canada know that.

It is totally ridiculous for that member to stand and read something that was hopefully prepared by someone who does not even understand that the aboriginal affairs committee right now will receive the part of the bill on fee simple that would put in question everything that member just read. She clearly does not understand.

It is really important that the bill come to the aboriginal affairs committee where somebody, like the Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development, who at least understands the issues around real property on reserve, can speak to it. That member and her committee can just leave the bill alone.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, I thank my colleague for her very clear defence of the rights of aboriginal women. I am particularly interested in her concern regarding the bill going to the Standing Committee on the Status of Women. As a five-year member of that committee and a former chair, I too have some very real concerns.

When I was a member of the committee in 2010-11, we embarked on a study of violence against aboriginal women. We went from community to community and we heard from aboriginal women. At first, they were reticent because they did not trust us, but as time went on they came to believe we would truly help. They believed the women of Parliament would truly help.

Unfortunately, the report that eventually came out of the Conservative-dominated committee was a travesty. It was an absolute aberration in terms of its glossing over the evidence we had heard and coming up with a report that had absolutely no real remedy.

Very clearly I share my colleague's concern. Why on earth we would ever trust anyone in the Conservative government?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, I thank the member and a veteran of the status of women committee who has witnessed the really disappointing reports coming out of that committee, that softly recommend or suggest instead of taking hard lines that would actually defend the status of women in Canada.

It is because of the complexity of this issue and the failure of that committee to deal seriously with any legislation, other than a couple of clauses in estimates occasionally, that it becomes even more inappropriate that the status of women committee would study a bill of this importance. It is also because that committee and the minister continue to say they cannot deal with anything outside the mandate of the minister and her department.

When we are fighting for the kinds of things we are in terms of resources on reserve, when we are fighting for more affordable housing and for the things that need to underline the purpose and the objective of the bill, it is even more important. As my colleague from the New Democratic Party has said, this law should be removed from the status of women committee and moved to the aboriginal affairs committee.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I appreciate the comments from my colleague, someone who obviously cares very passionately about our first nations community. I look to her to provide some leadership on the important issue of getting and engaging the different stakeholders throughout Canada that have a vested interest in ensuring this is done properly.

One of the suggestions she has eloquently spoken about is the importance of the bill going to the right committee. Could the member provide comment on those stakeholders and the valuable role they play in assisting and determining and ultimately maybe even providing leadership for having good sound policy coming out of the House of Commons?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, it is very important, from the research analysts to the membership and the knowledge of the people on the aboriginal affairs committee, to be able to not only receive witnesses here in Ottawa, as perhaps my colleague has suggested, but to go out and listen to the people.

We need to hear from the chiefs on how difficult this is when there is a situation of domestic violence where, again, someone gets the house and someone has to leave the community. This is very difficult and really goes against the whole collectivity and the self-governing interests of allowing communities to resolve things in an equitable way.

That means they must have the resources. It means the aboriginal affairs committee is the only place that can push, almost in a pre-budget consultation kind of way, to be fighting for the kinds of resources around housing, child care, legal aid and the kinds of things that would allow people to resolve this is in a fair and just way for first nations in Canada.

[Candice Bergen, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, for the average Canadian listening to this debate, we are talking about basic human rights for aboriginal women living on reserve.

We are not talking about any special rights that any other Canadian man or woman does not enjoy. We are talking about basic human rights.

My question to the women in the opposition parties, both the Liberal and the NDP, is: When will they stand up to the men in their party, to their male leaders, and say this is the wrong thing to do? We need to support the rights of aboriginal women to have basic property rights.

This bothers them, but it is a fact. We are talking about a very basic right, and I am just asking when my hon. colleagues will look at their male leaders and say we are on the wrong track here.

Even the opposition parties have to recognize that it is a basic human right for a woman on a reserve to have access to the property that she should have in the face of a divorce. All women who have gone through divorces in Canada have rights to their property and they have rights to support. Aboriginal women do not have this right.

When are the opposition women going to stand up for aboriginal women in this country?

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, this a completely specious argument. We believe there is a legislative gap.

I would say to the member that I will take any man on this side to stand up for the rights of aboriginal women, including the brilliant Irwin Cotler who has been standing up for human rights for all his life—

[The Deputy Speaker]

The member knows it is inappropriate to use the name of a sitting member of this House.

Resuming debate, the hon. member for Churchill.

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I am pleased to stand in this House as part of the official opposition to raise our position, which is very much founded on true consultation with partners, aboriginal women, aboriginal organizations and the voices in this country that are seeking real justice and real leadership from the federal government.

Today we are talking about Bill S-2, but as we know from what we have heard in this chamber, there is a lot involved in this debate and in the debate around standing up with aboriginal women in this country. I am amazed at how the federal government is making so much noise on the issue of the human rights of aboriginal women when, in fact, time and again, it has done nothing but let aboriginal women down.

We all know the painful history of colonialism and the kinds of situation that aboriginal people have lived with for centuries. We know this has left a mark on the kinds of lives that so many aboriginal people in Canada are living today.

As the MP for Churchill, I have the honour of representing 33 first nations. All of them have signed historic treaties with the Crown and all of them have seen the treaties and their treaty rights broken and disrespected by government after government, and that has certainly been a hallmark of the present federal government.

Some years ago, we had an apology from the Prime Minister that so many residential school survivors took very seriously. It was an apology that so many of us were proud of and that our former leader, Jack Layton, was very involved in shaping. However, after that apology, we saw a complete reversal of the very sentiment that the Prime Minister and Parliament shared with aboriginal men and women.

We saw massive cuts to organizations, some of which deal directly with the healing residential school survivors need. We saw organizations that deal with the intergenerational impacts of residential schools be cut by the current federal government.

I would like to point out that nowhere is the intergenerational impact of residential schools more evident than in the national tragedy of missing and murdered aboriginal women. It is chilling for every member of the House to know that we are part of a Parliament that could take action on this national tragedy. However, instead, we see a government that not only ignores the problem but actually cuts the very organizations that were there to support a solution.

The Native Women's Association of Canada put together a world-renowned initiative called Sisters In Spirit, which was cut two years ago.

The First Nations Statistical Institute, which gathered statistics on aboriginal women, was cut. It was done away with completely in the last budget.

The National Aboriginal Health Organization, which maintained a particular focus on the health of aboriginal women, was completely eradicated by the present federal government.

The Aboriginal Healing Foundation offered state-of-the-art community-driven healing programs, many of them run by women who worked with female elders and women who live on the margins of their communities and societies. Every single one of those community-based programs was cut by the current federal government.

The Women's Health Research Network, a network of academic and grassroots women working in health and security, whether on the streets of Winnipeg or in communities in northern reserves across the country, was completely eliminated by the current federal government.

There are countless examples of organizations that deal particularly with aboriginal women to establish the kind of statistics we need to know the scope of the problem, not just in terms of murder, but in terms of violence, poverty and health challenges. They are gone. The programs are gone that gave services of healing, counselling and support for learning a language that has been beaten out of generations of aboriginal people. Programs are also gone—thanks to the federal government—that were there to support women, to engage them in research and to engage them in job opportunities, that allowed them to look at their own challenges and their own aboriginal communities.

When we hear that the federal government cares about the rights of aboriginal women, I say that is wrong, as we look at every single one of the Conservatives' actions including the fact that this weekend in Winnipeg there will be a national provincial-territorial symposium on aboriginal women known as NAWS. My question to Canadians is: I wonder if they know which level of government has refused to play any part. The answer is the federal government.

The past two historic gatherings of NAWS were recognized at the international level and were co-hosted by the federal Government of Canada. So little is its care for the status of aboriginal women in this country that, in an age where violence against aboriginal women has gripped people, has gripped the imaginations of so many Canadians like those in my home province of Manitoba, it is not even willing to co-host a discussion among levels of government and the grassroots to be able to come to a solution.

When Conservatives tell us about the equality and rights of aboriginal women, I would like to see their actions, and their actions have spoken for themselves. They are nowhere to be found and they are gutting the very foundations of a system where people have tried to come together and stand with aboriginal women for a better today and a better tomorrow.

That brings us to Bill S-2, a bill that I and my colleagues have clearly said we cannot support. It has fundamental problems. After decades of work to be able to establish a true partnership with first nations, whether it is recognizing the duty to consult, whether it is recognizing the government-to-government relationship and what the NDP wants to see as the nation-to-nation relationship, one would think the federal government would understand how important the duty to consult is, but it does not.

Bill S-2 is a bill we have seen in other forms, over five different parliamentary studies conducted on matrimonial property rights. As one Senate report found, women face real challenges when they have to leave their homes, and that is a point that we do not discount at all. It is a fact. I know it from the communities I represent. I hear it from the women with whom I have the honour of working.

However, the Senate in its conclusions made five key recommendations, and these are the recommendations that are fundamentally disregarded by Bill S-2: that the Native Women's Association of Canada and the Assembly of First Nations be consulted; that funds be provided to help first nations draft their own matrimonial rights property codes, something that first nations have indicated an interest in working on. Let us hear from those first nations. It recommended that legislation not be applicable to first nations that come up with their own code. One of the recommendations was that there be amendments to the Canadian Human Rights Act to apply on reserves. The Senate stressed that all recommendations be Canada's recognition of first nations inherent right to self-government. That reference to the inherent right is a critical one, because the federal government, through its disrespect of treaty rights and aboriginal inherent rights, has built a very dangerous kind of discourse when it comes to engaging Canadians.

The government makes it sound as though aboriginal peoples' rights are the same as everyone else's rights, but what it disregards is that aboriginal people, being the first people on this land, have what are called inherent rights and have treaty rights.

None of this is a hidden fact. People in my constituency know very well the writings of Tom Flanagan, one of the Prime Minister's former and maybe even current top advisors, who wrote a book entitled, First Nations? Second Thoughts, which is essentially focused on the concept of assimilation. Obviously, that is an unutterable notion to discuss in Canada in 2012, as it should be, because the concept of assimilation is not only racist but is a dark part of our history. We have moved on.

However, if we scratch the surface, the ugly head of that notion of assimilation appears and reappears in the current federal government's dealings with aboriginal people. That is a fundamental injustice to aboriginal people and to all Canadians, when we know that our nation was built on the idea of respecting that treaty relationship between first nations and the Crown.

In 2003, a legislative gap was identified that affects the rights and needs of first nations women. Nearly a decade later, under both Liberal and Conservative governments, Parliament has failed to solve the problem. As I noted, five separate parliamentary studies have consulted first nation organizations and women, and four bills have sought fit to ignore several of their most crucial recommendations.

Bill S-2 is no exception. That is why we stand opposed to the bill. Until the government understands that it requires aboriginal peoples' full consent to amend the Indian Act, New Democrats will continue to oppose this kind of legislation.

Let me point to some of the things that are problematic. Bill S-2 would address property shared between spouses, including common law partners. We have heard that it seeks to address gender discrimination. However, we note that the government has failed to do so in previous attempts across a broad range of areas with respect to aboriginal women.

Bill S-2 lowers the ratification threshold. It has a 12-month transition period, something we believe is too short a period to address issues. It eliminates the requirement for a verification officer to approve a first nation's own laws on matrimonial property rights.

Based on the kinds of agreements we have come to as Canadians, have we not learned that it is absolutely critical to consult with and allow first nations to decide how they want to address what they know is such a critical issue in their own communities?

First nations would have to re-ratify their pre-existing processes if Bill S-2 is passed. They would have to notify the minister and the provincial attorney general. The first nation's laws, based on consensus or traditional processes, would not be accepted. It is ridiculous.

Bill S-2 goes against treaty and inherent rights.

Finally, I want to note that consultation requires consent. It is quite clear the government does not understand that concept. It is not about having a meeting with a few people or getting a sense of what somebody says. It is about a true consultation process where the people who are consulted provide their consent to do that very same thing. That is nowhere to be found in the process leading up to shaping Bill S-2.

Bill S-2 connects to the Indian Act, which is firmly rooted in colonialism, racism and misogyny. According to principles of sovereignty and human rights, to negotiate such laws instead of redefining the relationship between Canada and first nations is the wrong path to take.

Inherent gender discrimination written into the Indian Act is responsible for the problems we now face with matrimonial real property. The worst thing we could do right now is to write new laws that commit the same mistakes as the old. We must not act paternalistically toward aboriginal woman. We are bound ethically and by the UN Declaration on the Rights of Indigenous Peoples to incorporate not some but all of their recommendations. It is not a selective project.

Bill S-2 unfortunately fails to do that.

The Assembly of First Nations does not support it. The Native Women's Association of Canada does not support it. The majority of aboriginal women do not support it. We as New Democrats are listening to their voices and we stand in solidarity with them. We do not support it.

We do not claim to know what is best, but Bill S-2 is not only ethically problematic, it is also logistically impossible to implement for various reasons. Let us go into those reasons. It is all fine and well to talk about legislation, but I know many of the members across the way are familiar, in part because some of them represent first nations, with the very real challenges that first nations face.

There is a lack of financial resources to support first nation governments to implement law. Let me give an example on a slightly different note that truly indicates the lack of resources first nations have.

I was visiting Bunibonibee Cree Nation in northern Manitoba, also known as Oxford House, two weeks ago. It is a community that has struggled with young people living on the margins, young people who drop out of school and who engage in activities that involve violence and abuse. Leaders in that community want to provide ways for young people to live healthier lifestyles.

They wanted to apply for a grant offered by Public Safety Canada to get money for a recreation program for these young people. They heard about this grant quite late because they do not have enough staff in their office to be able to go through all of the messages and memos they receive from the office in Winnipeg. They do not have enough staff to fill out the application and the letter of intent.

After it was filled out, just because bad things sometimes happen in threes, there was a power outage in Oxford House, Gods River, Gods Lake Narrows and the Island Lake area. The storm that knocked the power out was so bad that the people from Manitoba Hydro could not come in and fix the power. For two and a half days, people were shut out of their offices, the two and a half days prior to when this application was due. A community that needs this grant more than so many others, and along with so many others, was unable to do the very basic task of submitting the application.

We can blame it on weather when it comes to the power outage, but we cannot discount the fact that the community has said time and time again that it does not have the resources to hire people who can help them get the kind of programming and support it needs.

There is a lack of funding for lawyers. There is a lack of funding regarding limited geographic access to provincial courts. I represent 22 isolated communities. Bands have barely enough money to make do, as I noted, with basic services, let alone travelling out to access lawyers and provincial courts.

Fundamentally I would like to end with perhaps the greatest injustice. If we really wanted to address the kinds of violent situations that aboriginal women face in terms of unsafe housing and the kind of marginalization that they face in their communities, we would talk about the lack of on-reserve housing and the land mass that exists today on first nations across this country.

These are third world conditions, conditions that day in and day out shape the lives of aboriginal women and provide immense challenges to their moving forward and to Canada moving forward.

I would ask that the government be genuine in its attempt to stand with aboriginal women, look at getting rid of Bill S-2 and truly make a difference for aboriginal women in Canada.

[Dean Del Mastro, Conservative, Parliamentary Secretary to the Prime Minister and to the Minister of Intergovernmental Affairs]

Mr. Speaker, I have been very surprised and somewhat saddened during this debate. It seems that we are having a discussion about or at least the opposition is putting forward that in order to establish equality in Canada for all Canadians, fundamental human rights and gender equality, which are things we all believe strongly in, we should consult first. They say we cannot have equality without consultation.

I think that is profoundly wrong. The fact that an aboriginal woman does not have the same matrimonial real property rights as any other woman in this country is something we should all hang our heads in shame about. It is fundamental equality we are talking about.

We do not need to consult or negotiate or have a summit, or any of the other things that they would propose over there, to simply come to the understanding that equality is the right thing to do and inequality is wrong. That is what they are standing up for. Perhaps the hon. member would like to say why.

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I would venture a guess that the hon. member is not reading from his speaking notes. To even utter the words that consultation is not important when one is working with aboriginal people is an affront to the kind of system that Canada is built on. It is a very dangerous statement to make and it really flies in the face of the kinds of agreements we have committed to.

Aboriginal women are also aboriginal. That the government does not want to consult with them, with the organizations that represent them, with the bands in which they live and in many cases in which they are councillors and leaders, is frankly shocking. I am sure first nations and all Canadians who hear this will see this as not just shocking but really turning back the clock on the kind of Canada we would like to build.

[Jean Rousseau, NDP, Compton—Stanstead, QC]

Mr. Speaker, it is somewhat insulting to hear the members opposite talk about equity, equality and consultations. I will not go into the details, but all the Conservatives have been doing since the 41st Parliament began is infringing on human rights. As a result, when they talk about basic principles related to human rights, it is really insulting. The members opposite have no respect for equity or equality.

That being said, I would like to come back to what my colleague was saying in her excellent speech: why are consultations important and why do we want the first nations and the public to be consulted? It is a question of equality. We want to speak with these people as equals. It is only by consulting them and respecting their culture and demands that we will be able to agree on bills that respect the elements and principles of equality. We must build a nation-to-nation relationship.

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I thank my hon. colleague, who did an excellent job of presenting the NDP's position. The NDP is the only party that really stands in solidarity with first nations. The NDP has a vision of this country where first nations are respected on the basis of a nation-to-nation relationship. We are not simply paying lip service; we truly believe that this is what is right. And this is how we will proceed.

First nations needs to be recognized as nations and this relationship must be expressed in everything we do. When we talk about the rights of aboriginal women, we in the NDP do not regard these women as the same as every other woman, like the Conservatives do. Aboriginal women have certain rights that are recognized in our laws and in the UN declaration, and we recognize them as such. Let us be clear.

The Government of Canada apparently already has its own position. Let us proceed based on our vision, if the Conservatives do not wish to present theirs.

[Susan Truppe, Conservative, Parliamentary Secretary for Status of Women]

Mr. Speaker, both parties are indicating that they do not think Status of Women Canada should end up with this bill and that Aboriginal Affairs should. I have a report in my hand from 2006, which I would like to share. It is a report from the Standing Committee on Status of Women, which states:

Pursuant to Standing Order 108(2), your committee reviewed matrimonial real property rights on reserves. Your committee heard evidence on this matter, the result of which is contained in this report.

This was one of the recommendations:

Whereas immediate solutions, not further study, are required to move this issue forward;

The member opposite indicated that aboriginal rights are not the same as everyone else's rights and that aboriginal women have rights too. We know that. That is what Bill S-2 is about. We are trying to give aboriginal women the same rights we have. I would like to ask the member opposite, will she give aboriginal women rights?

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I am really disappointed that the government has lowered its standard of debate; although, I am not surprised because we see it everyday on that side of the House.

I take encouragement from the other side that Conservatives are looking at recommendations that have been made by parliamentary studies. I wish they would look at all of the recommendations made, which are ones that New Democrats have referenced as the reason we cannot support Bill S-2.

Let me be clear on the concept of consultation. This is not a new concept. It is a concept that is enshrined in our Constitution and our commitment to the UN declaration. It is absolutely shocking that the government wants to discount the commitments we have as Canadians. That is the very problematic point.

I would really love to hear from the government as to the full extent of the action plan it has to work with aboriginal women, so that they are not the most marginalized people in Canada and they do not face the levels of violence and poverty they are facing. Let us look at the bigger picture. Could the government answer why it has cut aboriginal women's organizations to the point that some of them do not exist? Perhaps it could spend its energy on that.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, my friend, the member for Churchill, was spot on in saying that consultation must lead to consent. When we look at how several groups have reacted to this bill, we see clear opposition, particularly from the Native Women's Association of Canada, which does not agree with this bill, the Assembly of First Nations and the Aboriginal Women’s Summit. Ellen Gabriel, the former president of Quebec Native Women's Association, and Dr. Palmater, a lawyer and professor of aboriginal law at Ryerson University, are also opposed to this bill. These individuals have very prominent voices, and they are very familiar with the housing problems in aboriginal communities.

With this bill, the way that the government is reacting and the arguments it has presented, I can see that it wants to force an inadequate legislative solution down the throats of the first nations, without actually solving the problems.

I would like the member for Churchill to comment in more detail on the fact that consultation must lead to consent; otherwise solutions are forced on people, which is a completely inadequate way of addressing the problem.

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I thank my colleague for sharing the list of organizations, aboriginal women and leaders who oppose Bill S-2.

This government is perpetuating a colonial and paternal relationship in which it wants to impose its own vision instead of respecting aboriginal women, instead of respecting the fact that they are the ones who must take the lead, and instead of respecting and focusing on the consultations.

We, and Canadians, I am sure, think that the government is being old-fashioned by trying to introduce a bill without consultation, when we know that aboriginal women and organizations are opposed to the way it is being presented.

We have moved on. They should move on with the rest of us.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Mr. Speaker, I will split my speaking time with my colleague, the member for Argenteuil—Papineau—Mirabel.

As we have heard in a number of speeches delivered today, Canada's aboriginal women are in an extremely tough situation. Statistics show that, compared to the rest of the population, first nations women suffer more spousal violence and are at greater risk of living in poverty.

The many legal voids with respect to reserves leave aboriginal women even more vulnerable. In family law in non-aboriginal regions, when a married couple divorces, the division of family, real and personal property is determined by provincial legislation, which is not at all the case on the reserves, since they are under federal jurisdiction. In 1986, the Supreme Court of Canada held that the courts may not enforce provincial law on reserves. That decision by the highest court in the land confirmed the legal void, and many reports since then have emphasized the need to find a solution in the interests of first nations peoples.

A solution to this legal void is very urgently needed. Currently, aboriginal women who get separated or divorced lose everything. They have to leave the home and are often deprived of their children, and if their name does not appear on the title of ownership, judges cannot rule that they may keep the house or retain any part of their matrimonial property.

Where they are victims of family violence, the court cannot issue an order for exclusive possession of the family home or a restraining order, that is to say an order prohibiting the abusive spouse from approaching or communicating with his spouse. A number of protective mechanisms have been put in place over the years to protect women from spousal violence, but they cannot be enforced on reserves.

Note that, according to Statistics Canada, aboriginal women suffer violence three times more often than non-aboriginal women. It is therefore really necessary to take action, as everyone will agree.

In 2003, a Senate committee emphasized that measures previously taken by first nations to resolve this issue had to be acknowledged.

In 2005, a report by the Standing Committee on Aboriginal Affairs and Northern Development underscored the importance of acknowledging first nations' inherent jurisdiction over matrimonial real property and of authorizing aboriginal people to adopt their own regimes, which is not at all recognized in Bill S-2.

By virtue of the inherent right to self-determination acknowledged by the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has signed, the federal government must obtain the consent of aboriginal peoples before adopting legislation that will alter any matter directly affecting aboriginal lands. Unfortunately, as has been repeated many times today, this is not at all what Bill S-2 contains, any more than previous bills.

The opinion of the first nations, the main parties concerned here, has not been considered. They may have been consulted, but there has been no consent by the parties concerned, which means this bill is an affront to the principles of self-government and self-determination. What is the problem?

In 2006, the then Minister of Indian Affairs and Northern Development held nationwide consultations on the issue of matrimonial property. The goal was to find a solution to the legal vacuum and to ensure that the rights of first nations women were taken into consideration, that the Canadian Charter of Rights and Freedoms was respected and that there was an acceptable balance between first nations individual and collective rights. The consultation process involved planning, consultation and consensus-building. The parties consulted did not reach a consensus, which means that, in introducing Bill S-2, neither the Senate nor the Conservative government is being respectful of aboriginal peoples. Both are imposing their way of thinking and their way of doing on the first nations.

The consultations also shed light on substantive problems, such as the lack of access to courts for those living far from major urban centres, the acute shortage of housing on reserve and the lack of financial resources to arrive at fair solutions in divorce cases.

The Senate bill provides no solution to any of these basic social issues. However, the Standing Committee on Aboriginal Affairs and Northern Development clearly recommended that financial assistance be granted to the first nations so that they could develop their own code for matrimonial real property and that any new piece of legislation would not apply to the first nations who had developed their own code.

It is worth reminding the government of the deplorable living conditions on the reserves. A study by Aboriginal Affairs and Northern Development Canada ranks the reserves 63rd among the nations of the world in terms of quality of life, that is, among the third world countries, according to the United Nations human development index.

According to Health Canada, 12% of first nations communities must boil their water before drinking it, and about one quarter of water systems on the reserves present a high risk for human health. Housing density is twice as high as it is among the general population. Nearly one in four adults lives in an overcrowded home. Approximately 423,000 people live in substandard and overcrowded housing that is deteriorating rapidly.

Since this government came to power, it has done absolutely nothing to address the lack of social housing. The United Nations have called on Canada to act on a number of occasions, but this government prefers to discredit the UN and its representatives. There is no point in passing a bill that cannot be implemented. Even if matrimonial property is divided up, where will the spouses who leave the family home go to live if there is a shortage of housing?

Here is a statement that clearly describes the misery experienced by aboriginal women:

An aboriginal woman committed suicide earlier this year after the authorities apprehended her children. The woman, who had five children, was forced to leave her reserve due to a chronic housing shortage. However, she could not find affordable housing off the reserve. Due to her financial situation she was forced to live in a rundown boarding house with her five children. She sought assistance from the authorities to find affordable housing for her and her children. The authorities responded by apprehending her children. At that point, the woman, sadly, lost all hope and took her life.

According to the Native Women's Association of Canada:

The bill will put women who are experiencing family violence at further risk by forcing them to wait long periods for justice without adequate social supports, services or shelters.

Bill S-2 has other major flaws. Its community approval process does not respect aboriginal traditions of consensus. Bill S-2 does not require a majority of people to participate in the vote; it only requires a participation rate of 25%. This is not very democratic, nor is it representative of all band members.

The bill constitutes a one-dimensional approach to a very complex problem. The chief of the Assembly of First Nations, Shawn Atleo, believes that Ottawa is acting unilaterally by introducing this bill, and that aboriginal peoples should solve the problem. Why is this government incapable of listening to and working with first nations? Instead of working with them to solve problems, it prefers to impose trusteeship on aboriginal governments, as it did in Attawapiskat. In 2012, this paternalistic approach should no longer be acceptable. This is not the colonial era.

The federal government must treat first nations with respect and recognize their right to self-government. Members of the official opposition believe that this bill should not be passed. This is a shoddy bill and it does not respect the rights of aboriginal peoples whatsoever. It should be replaced by another bill, ideally a good bill that addresses the lack of financial resources to help first nations governments apply the law, provides legal aid and better access to courts in remote areas, and provides financial assistance to build housing on reserves.

A western-style legal approach is not the only solution. In fact, first nations people have their own traditions when it comes to conflict resolution. A good bill should reinforce traditional aboriginal institutions. In order to find lasting solutions to social problems on reserve, aboriginal governments expect the federal government to recognize their right to self-determination. I would like to quote Ellen Gabriel, a former Quebec Native Women's Association president:

It is reprehensible that the Government of Canada is so eager to pass legislation that seriously impacts the collective human rights of indigenous peoples without adequate consultations which requires the free, prior and informed consent of aboriginal peoples. While it is understood that legislation is not accompanied by commitments to adequate financial and human resources necessary to implement laws, these bills will create further financial hardships on first nations communities.

Some first nations have adopted a proactive approach and have worked with their communities to develop rules and policies related to matrimonial property. Bill S-2 flies in the face of the values of first nations and only does more harm to first nations families. We simply cannot support such a bill, because it completely disrespects Canada's aboriginal people.

[Candice Bergen, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, I have a basic question for my hon. colleague.

I am not sure if she is married, but I will say that if any married woman in this House went through a divorce, she would have the absolute right to the property and assets she had acquired during the marriage. That is the law, and we all know it. When we go through a divorce, we get to have at least half of the assets that had been acquired during the marriage. Is the member aware that aboriginal women do not have this right at all? I am not exaggerating; this is a fact in Canada.

All Canadian women have basic rights to the property they acquired during a marriage, and should a divorce occur they would get half of those assets, as it should be, unless she is an aboriginal woman. Then she has zero ability to get any property. She has no right to the assets that had been acquired.

Can my hon. colleague tell me if she thinks that is fair or right? Is that a just society? Do the women in the NDP caucus support this kind of segregation and prejudice toward aboriginal women?

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Mr. Speaker, it is so insulting that the member is asking me such a question. Clearly, I am aware of the fact that there is discrimination among aboriginal people with regard to certain rights, particularly in the case of divorce. Everyone is aware of this and wants the problem to be resolved. But even representatives of aboriginal women are against this bill because consent was not obtained from the first nations.

The government held consultations, but it did not take into account the recommendations made by the first nations. Aboriginal people's self-governance is not being respected. Many lawyers are saying that this is not just a matter of discrimination but of giving first nations the resources they need to have decent living conditions.

We must tackle the problem of affordable housing and housing in general. We must tackle the problems of health and poverty. We must improve access to legal recourse. We must resolve the lack of basic justice. Bill S-2 is a complete botch-up that does not address any of these issues. It is very insulting that this government is not able to recognize that.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Mr. Speaker, I would like to thank the hon. member for her excellent speech on Bill S-2. This is an extremely important perspective that the House must be made aware of. We must take the time to listen to what members are saying in their remarks.

My colleague said something that is very interesting. Many recommendations were made and many studies were conducted in the parliamentary system, but almost none of those recommendations were included in the reports produced by the Senate and the Standing Committee on the Status of Women.

The government is cutting back on its consultations with the groups involved and is not taking into account the recommendations made. Does my colleague believe that this is becoming too much of a habit for the government when introducing bills?

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Mr. Speaker, I thank the member for Alfred-Pellan, who was spot on with her comments. The government has a habit of imposing its way of doing things and its vision without respecting the traditional and cultural rights of aboriginals. The government tries to impose all of its decisions without any consultation or consideration of the opinions of experts and partners.

Here, the government is forcing a transitional measure spread out over 12 months down our throats. The first nations do not agree with that. They say that 12 months is far too short and that they would need a two-, three- or even ten-year transition period.

Furthermore, this does not address the underlying issues that are at the source of a lot of the violence. Many issues are being addressed on the surface only, but they would have us believe that they are addressing the problem of violence and are helping women. Women want more financial resources so that this can be done properly.

[Mylène Freeman, NDP, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I am standing in the House on behalf of my constituents of Kanesatake who have outwardly expressed their opposition to this. I have consulted with the band and spoken with Ellen Gabriel, a member of the band of Kanesatake, and can clearly and without reservation say that first nations do not agree with this legislation.

Bill S-2 makes changes to the Indian Act that will allow provincial family law to apply on reserves in the event of a matrimonial breakdown or the death of a spouse or a partner. While the intention of the act is to give equal property rights to both spouses in the event of a separation, the problem is that the bill cannot be implemented and that the government completely ignored any consultation when preparing the legislation. Otherwise, it would have known that the bill could not be implemented.

There is a legal vacuum concerning real property on reserve due to the jurisdictional divide between provinces and territories, who have jurisdiction over property and civil rights within provinces, and the federal government, which has a jurisdiction to legislate regarding “Indians and lands reserved for Indians”.

The Indian Act does not provide for the division of MRP upon marriage breakdown, and first nation jurisdiction is not explicitly recognized by Canada in this area. This is a problem. However, anyone who is paying attention to the situation and issues facing first nations in Canada knows that it is the Indian Act that is flawed beyond repair.

New Democrats support the will of the Assembly of First Nations and the many individual nations that have explicitly called on the House to scrap the Indian Act of 1876. We need to begin anew. We need to do this through a broadly consultative process with equal partners. That is key. We need to understand that we are talking about equal partners in Confederation. That is the only way we are going to move forward out of this existing colonial structure.

We need to write laws for indigenous peoples that are not founded on colonialism and racism, like the Indian Act is. We need to do it while recognizing that first nations have an inherent right to their land and to govern themselves. That would be the way to move forward, through collaboration, consultation and in good faith. I believe that Canada can take effective steps toward de-colonialization of aboriginal peoples in this country. The Indian Act is not the road map toward de-colonialization; it is a template through which Canada colonized indigenous peoples in the first place.

The legislative gap surrounding matrimonial real property, MRP, is a problem created by the Indian act, which neglects to account for the division of property in the event of a matrimonial breakdown. It is a function of the Indian Act to place all reserve land and care for status Indians under the fiduciary responsibility of the Government of Canada. I do not think it is a matter of opinion at this point in history that Canada has not lived up to its responsibility and that it continues not to provide equality for first nations, as exemplified by the fact that first nations child welfare and schools continue to be grossly underfunded compared to non-first nations children by about 30%, according to the Auditor General.

When it comes to matrimonial real property, the obvious problem that arises from the jurisdictional gap created by the Indian Act is that an aboriginal woman is often not entitled to the lands or home she once shared with her spouse. Therefore, it would seem logical from a very shallow perspective, like the government has, that we should simply write a law that gives women on reserves the benefits of provincial matrimonial laws, thus neatly filling a legislative gap. However, this simply does not work in reality for the women living on reserve. First nations people do not own the land they are on. They cannot simply sell or divide the land in way that a non-first nations person can own, sell and divide land.

Even if the band council wanted to give a woman her own property on reserve, it would not be able to do so, as there is not enough land. We are seeing this problem in Kanesatake. The government is constantly causing problems and delays and changing the rules of the game while Kanesatake is trying to move forward. It is trying to have jurisdiction over its land for future generations. The government is not doing that for them; it is just continuing to cause problems.

We cannot talk about land without actually addressing the problem that first nations do not have jurisdiction over the land, or do not have the ability to control what is going on with their land, and cannot access the lands that are traditionally theirs.

As I was saying, the trouble with Bill S-2 is that, practically speaking, it is impossible to implement. Therefore, Bill S-2 has become an insincere and overly simplistic attempt to rectify a very complex problem caused by the Indian Act.

There are obvious gender discrimination problems with MRP on reserve, but the reason we cannot implement it is the lack of financial resources to support first nations governments actually implementing laws, including a lack of funding for lawyers. This is a problem, again, in Kanesatake. It is resulting in more and more debt whenever it has to defend its land from a mining company.

There is also a lack of funding to address first nations' limited geographic access to provincial courts. First nations, particularly aboriginal peoples living in remote areas, cannot necessarily easily access a provincial court, where they would have to go to defend MRP.

Moreover, there is a lack of on-reserve housing and land mass, which would be necessary to give both spouses separate homes on reserve. In a sense we would be doubling the amount of land needed for some people. The land just is not there. The housing is not there. There is the difficulty of getting more resources to maintain and build more homes on reserve, let alone the lack of space to put them on.

The government would know all of this if it actually took the trouble to consult and actually do the consultation required. By the way, consultation does not mean the government receiving a letter from first nations indicating what the latter want and then ignoring it. It means actually having a real discussion and coming to solutions together on equal footing.

According to the UN Declaration on the Rights of Indigenous Peoples, UNDRIP, consultation requires consent. Canada has conducted limited consultation, but no consent was given. Therefore, Bill S-2 is in violation of UNDRIP, something to which we are a signatory, although it was difficult to get us on board. The Government of Canada, in all its previous forms and its current one, does not actually want to address meaningfully the problem of colonialism and racism toward first nations people. UNDRIP requires free, prior and informed consent on any matter relating to the lands and welfare of rights holders—not to mention the fact that we are basically continuing to ignore the Constitution Act, which states that first nations have jurisdiction over their own internal affairs.

Accordingly, New Democrats are not going to support this legislation. We need to have non-legislative remedies to problems that are occurring in the government's relations with first nations. We need to actually address violence against aboriginal women. What we have been doing up until now has not actually been addressing that. If the government were on the ground, if it had consulted, it would know this. If it had not ignored the testimony given at the status of women committee, it would know this.

We also need to address the housing crisis. We need to end the systematic underfunding that is perpetuating discrimination across generations.

The Conservatives just want to put a law on the books and say that they have solved the problem without actually dealing with the underlying problem. They continue to ignore first nations women's voices that are calling for us to have a meaningful discussion, to stop managing first nations like colonial subjects and to truly understand that they are partners in this confederation.