moved that Bill S-2, 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 read the second time and referred to a committee.
Mr. Speaker, thank you for the opportunity to speak today in support of Bill S-2, the Family Homes on Reserves and Matrimonial Interests or Rights Act .
I am thankful for the opportunity to speak today in support of Bill S-2, the family homes on reserves and matrimonial interests or rights act, a very important piece of legislation for aboriginal women.
I want to focus today on a key element of the bill, namely the provision that allows for emergency protection orders in situations of family violence affecting aboriginal women on reserve.
Court order protection from domestic violence has long been available to Canadian women living off reserve. It has long been recognized, by law enforcement and those working to address violence against women and girls, as critical to the safety of women.
Simply put, access to emergency protection orders saves lives. Extending these same rights to aboriginal women living on reserve will save more of them.
I draw the attention of the House to what the latest addition of Statistics Canada's Women in Canada report states with respect to spousal violence against aboriginal women:
Previous studies have shown that higher proportions of Aboriginal women experience spousal violence compared to non-Aboriginal women....
In 2009...15% of Aboriginal women who had a spouse or common-law partner reported that they had experienced spousal violence in the previous five years. In the case of non-Aboriginal women the proportion was 6%....
The report goes on to state:
There is evidence that many Aboriginal women who are victims of spousal violence experience severe and potentially life threatening violence.
In fact, the Statistics Canada report stated that:
In 2009, 58% of Aboriginal women who experienced spousal violence reported that they had sustained an injury compared to 41% of non-Aboriginal women.
It goes on to state:
Almost half (48%) of Aboriginal women who had experienced spousal violence reported that they had been sexually assaulted, beaten, choked, or threatened with a gun or knife. A similar proportion...[just over 50%] of Aboriginal women who had been victims of spousal violence also reported that there were times when they feared for their life.
All of us have heard the statistic that aboriginal women are five times more likely to be murdered than non-aboriginal women. Those are the cold, hard, ugly facts about the situation aboriginal women face day in and day out with, at the very least, the same protection afforded to women who live off reserve.
It is no secret that many of these women are forced to flee their homes and communities to escape violence. Many end up homeless, alone and even more vulnerable than before. They become vulnerable to trafficking and further abuse and violence.
If it is possible to enforce emergency protection orders, abusers can be ordered to leave the home and women can stay in the home. The ability to remain in their home would ensure that aboriginal women on reserves could continue to care for their children, could access the support of the community around them, but most importantly, could escape violence.
Let me be clear. Today there are no protections for aboriginal women living on reserve. This means that, in the case of domestic violence and physical abuse, a court cannot order the spouse who holds the interest in the reserve home, which is almost always the man, to leave the home even on a temporary basis. The spouse who holds the interest in the on-reserve home, which is almost always the man, can sell an on-reserve family home and keep all of the money. As well, the spouse who holds the interest in the on-reserve home, which is almost always the man, can also bar the other from the on-reserve family home.
The proposed legislation in front of us would provide basic rights and protections with respect to the fair division of the family home to on-reserve aboriginal individuals facing the breakdown of a relationship or the death of a spouse. The legislation would also provide protection for women in the event of family violence. These rights and protections are available to all other Canadians through provincial and territorial laws, which of course cannot be applied on reserves.
It is unacceptable that first nations people, especially women, do not have access to the same protections simply because of where they live. This proposed legislation would offer protection to more than 100,000 individuals who are currently living without legal matrimonial real property protection. This is a very important change, but it is also a very big change, so it is planned that the implementation of this legislation would also include education and training for key officials, including police officers on reserve and judges. It is also planned that there would be a public education and awareness campaign.
I would like to take a moment to look at the history of women's property rights, because historically a woman's property was under the control of her father, or if she was married, it was under the control of her husband. This issue first began to be discussed in the 1850s in both England and France. In Europe, of course, the law sided with men, who provided women protection but not equality.
In the United States at the same time, women themselves began to speak out about the most important civil rights challenges that were facing women in that day. In Canada at the turn of the century, where marriage is a provincial matter, of course, most women still saw their property rights transferred to their husbands when they got married. However in 1911, the provinces began to examine the issue of a woman's right to property ownership after marriage dissolution. Married women in Manitoba, P.E.I. and Saskatchewan were finally permitted the same legal capacity as men with regard to their property.
I have to say that, in my role as Minister for Status of Women, I find it difficult to accept that 100 years later aboriginal women living on reserve have not yet achieved the same rights. More than 25 years have passed since the Supreme Court of Canada issued a landmark ruling on two cases that are very important to this issue: Derrickson v. Derrickson and Paul v. Paul.
In its 1986 landmark decision on Derrickson v. Derrickson, the Supreme Court of Canada stated that courts cannot rely on provincial law to order the division of matrimonial real property on reserves. In doing so, the court underlined a legislative gap that has since meant that women residing on reserves and facing the breakdown of a relationship have not been able to access the Canadian legal system to resolve matters concerning their real property.
In other words, aboriginal women who live on reserve do not have rights to property or protection on reserve. They are frankly being denied their very basic human rights, and we believe this must end. Without access to the same rights shared by other Canadian women, these women have been left vulnerable for far too long. Until on-reserve matrimonial real property laws are in place, aboriginal women who are living on reserve will continue to face the reality that in the event of spousal violence, separation, divorce or death, the law does not protect their property. It does not protect their interests. It does not protect their rights, but most fundamentally, it does not protect their safety.
The Supreme Court of Canada's ruling did spark a dialogue and a larger effort to identify, develop and implement an effective solution. Over the years there have been a number of respected institutions, both in Canada and abroad, that have completed studies and analysis of relevant issues in this subject matter. Since 1986, a host of both domestic and international human rights bodies have studied, referenced and called for action on this matter.
The United Nations Committee on the Elimination of Discrimination Against Women is one of them. The Standing Senate Committee on Human Rights, the House Standing Committee on Aboriginal Affairs and Northern Development, the House Standing Committee on the Status of Women, the Aboriginal Justice Inquiry of Manitoba and the Royal Commission on Aboriginal Peoples have all studied this issue. The overwhelming conclusion of these reports was that legislation is the only effective solution and the only course of action.
With this bill, the family homes on reserves and matrimonial interests or rights act, I am proud that our government is moving to tackle this critical issue. It is not just for aboriginal women and children on reserve but also as an important part of the continued fight for equal rights for all women. This legislation would finally eliminate the longstanding human rights gap and in doing so contribute to the end of the suffering of many women and families who live on reserve.
I do want to acknowledge that there have been some efforts to address the issue of matrimonial property rights already by first nations. The First Nations Land Management Act does require first nations to develop laws related to matrimonial property rights and interests as part of their own land codes that they are developing. However, while these solutions have helped a handful of first nations, Bill S-2 would ensure that all women and individuals living on first nations reserves would have access not only to emergency protection orders to ensure their safety and security but also to equal matrimonial real property.
In 2005, the Government of Canada initiated preliminary consultations on this issue. In 2006, we announced a national consultation process to find a solution to fill this legislative gap. This consultation process was conducted in collaboration with the Assembly of First Nations and the Native Women's Association of Canada, so that they could engage and consult with individual aboriginal communities across Canada.
Along with these sessions, Aboriginal Affairs and Northern Development Canada held consultations with and provided funding to a wide range of other aboriginal organizations. This is an important point because aboriginal women have waited for 25 years to see this type of protection, and it is a big change. The government has recognized this. There has been opposition to it by some parties. However, let us remember that, in total, to date, 103 consultation sessions have been held at 76 different sites across Canada. Hundreds of people have participated and expressed a wide range of opinions.
To prepare a report and make recommendations for a legislative solution, the government also engaged a ministerial representative, a respected entrepreneur and former first nation chief.
Due to the complexity of this issue and of course the diversity of views, consensus could not be reached on every aspect of what the legislation should entail. Consensus did emerge, though, on the key elements of a legislative solution. These elements, I am happy to say, are all part of the legislation that is being introduced to Parliament, which is Bill S-2.
One of these elements is a two-part solution that is both practical and sensible. First, the bill would allow for first nations to develop and implement their own laws to protect the matrimonial real property rights and interests of community residents. These laws could be based on the community's tradition. The content of the laws would be entirely between the members of the first nation government, and must be approved by a community ratification process. The second part of the solution is a provisional federal regime that would apply, once in force, until the time the first nations develop their own laws.
I want to emphasize the point that these provisional rules would apply to first nations unless or until they enact their own matrimonial real property laws under this legislation. This would ensure that laws exist to protect the rights and interests of all Canadians, regardless of where they live in Canada.
As well, parliamentary committees reviewing these bills have considered the testimonies of a long list of witnesses and proposed a series of improvements. All of these amendments are also in Bill S-2.
The simple fact is that the legislation now before us represents the culmination of decades of work to find an effective solution. Now is the time to implement this solution. Aboriginal women who have lived on reserve have waited too long.
Bill S-2 also includes additional improvements that were made to the bill prior to its introduction in September of 2011. These improvements respond directly to concerns that were raised by stakeholders.
Bill S-2 also features another improvement over previous versions, a significantly lower ratification threshold. Several witnesses who appeared before committee expressed serious concerns about the ability of some first nations to engage enough voters to secure a meaningful result under a double majority, which requires that a majority of eligible voters must vote and that a majority of those who vote must vote in favour. Now, with the changes that we have made, a first nations council would be responsible for informing its members of the content of its laws and secure the approval of a majority of voters. It must also inform the minister of the results and provide a copy of the approved law to the minister, any organization that may be designated by the minister and the respective attorney general.
More important, I think the changes we have made to Bill S-2 are consistent with the direction this government is taking in terms of diminishing the role of the federal government in the day-to-day administration of first nations and handing those responsibilities over to first nations, where it belongs.
Finally, when the Senate adopted Bill S-2, it did so with two additional changes that would allow judges to extend emergency protection orders beyond 90 days. This would allow judges to exercise discretion on the duration of the order upon the rehearing of the case or when changing or revoking emergency protection orders. This is very important for the safety and security of aboriginal women living on reserve.
The Senate passed Bill S-2, as amended, on December 1, 2011. Bill S-2 is informed by many years of study, consultation and debate. The proposed legislation builds on previous attempts to enact similar legislation. It incorporates a series of amendments adopted by parliamentary committees in response to stakeholder testimony, and was substantially altered before its introduction into this Parliament to further strengthen the bill and to facilitate the development of first nation laws in this area.
I believe it is our duty to adopt Bill S-2 and finally put in place a legislative solution, which is long overdue, to support aboriginal women on reserve.
I also want to point out that some of the criticisms raised of the bill are based on false information. For instance, some people believe that the proposed legislation could take away the property rights of first nations. The view that a non-member of a first nation could gain ownership of reserve lands is completely false.
The bill, in clause 5, explicitly states:
(a) title to reserve lands is not affected by this act; (b) reserve lands continue to be set apart for the use and benefit of the First Nation for which they were set apart; and (c) reserve lands continue to be lands reserved for the Indians within the meaning of Class 24 of section 91 of the Constitution Act, 1867.
The legislation is very clear. At no point would the collective ownership of first nation lands be jeopardized under Bill S-2.
Another criticism refers to what is actually not in the bill, namely that Bill S-2 does not include specific funding to improve access to the courts, to emergency family shelters and to on-reserve housing. Bill S-2 is not about policy or funding levels. It is about eliminating a cause of injustice and closing a legal loophole that creates inequality and leaves aboriginal women vulnerable. It is about ensuring all Canadians, whether they live on or off reserve, have similar protections and rights when it comes to family homes, matrimony interests, security and safety.
Consider the testimony provided by one aboriginal leader before committee during its review of Bill S-2. This is what Betty Ann Lavallée, national chief of the Congress of Aboriginal Peoples, had to say. She said:
[Bill S-2] is addressing the real human issue of an aboriginal person, something taken for granted by all other Canadians.... A spouse within an aboriginal relationship should not be denied, or put out on the street alone and without any recourse, because of a family [or marital] breakdown.
That has been happening in Canada for far too long.
National Chief Lavallée recognizes that Bill S-2 is ultimately about preventing abuse and discrimination. Her words are informed by her knowledge of the often harsh realities of day-to-day life faced by many women residents of first nation communities.
I agree completely with Chief Lavallée's eloquent words and I believe that Bill S-2 strikes an appropriate balance between individual and collective rights.
Here again I must return to my role as the Minister for Status of Women. We also know that this issue is critical to future generations of aboriginal children. We are working hard to advance equality for women and to remove the barriers to women's participation in society and eliminate violence against women. This includes aboriginal women.
As the Minister for Status of Women I am very concerned with the pattern of violence against aboriginal women and the impact it has on the families and the communities who suffer from it. Today we have a chance to make a change. This issue is a responsibility that we all share and by working together we can better address it.
I call on my colleagues in the House to support the legislation. For more than 25 years women living on first nations communities have had to live with this human rights gap. For most Canadians that protection exists. For women on reserve, that protection does not exist.
I call on all of my colleagues in the House to move this forward and end this human rights gap once and for all for aboriginal women living on reserve.