Debates of Nov. 22nd, 2012

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, when the parliamentary secretary talks about the amount of consultation that happened across this country, I would refer to the ministerial report by Wendy Grant-John that was done for the former minister of aboriginal affairs, Jim Prentice, back in 2006.

As the ministerial representative, Wendy Grant-John talked extensively to first nations from coast to coast to coast and found that there was no consensus regarding the legislation that could be applied to matrimonial real property. She did make a number of recommendations. We closely examined the legislation that was before the House. When we compared the old legislation to the new legislation, we found that the bulk of Ms. Grant-John's recommendations had not been included in the new legislation.

When the government talks about consultation, it forgets that a vital piece of that is to not only go out and do a consultation but to actually incorporate those recommendations into the legislation that is before the House.

I would like the parliamentary secretary to address specifically how Ms. Grant-John's recommendations were incorporated into this legislation before us.

[Susan Truppe, Conservative, London North Centre, ON]

Mr. Speaker, the Standing Senate Committee on Human Rights conducted a review of Bill S-2. Many witnesses testified, including the Minister of Aboriginal Affairs and Northern Development.

An excerpt of his testimony in November 2011 reads:

The time has come to solve this issue once and for all. We all agree the status quo is not acceptable. It has not been acceptable for 25 years, yet here we are. Without legislation, the legislative gap continues to impact individuals negatively. Most of these individuals are women and children—already among the most vulnerable of all Canadians—and no court can help them.

This statement neatly summarizes why I believe we must lend our support to Bill S-2. We already have more than 25 years' worth of research, analysis, consultation and engagement. I cannot imagine how more consultation would deepen our understanding of the essential issues or influence the positions taken by various stakeholders.

[Roxanne James, Conservative, Scarborough Centre, ON]

Mr. Speaker, I thank the hon. member for London North Centre, the Parliamentary Secretary for Status of Women, for her remarks and for moving this important legislation.

I, too, support Bill S-2, not simply because I am on the Standing Committee for the Status of Women and not because I am a woman, but because it is simply the right thing to do.

There are a number of reasons why I support it, two of which are as follows. First, the proposed legislation would eliminate the inequity that is currently on reserves that causes so much hardship to the women who are currently within our first nations communities.

Second, it would support first nations that wish to develop and implement community-specific matrimonial real property laws on their own reserve lands.

Those are just some of the reasons why I personally support it. I am wondering what the Parliamentary Secretary for Status of Women feels would be the important benefits of Bill S-2 to first nations women.

[Susan Truppe, Conservative, London North Centre, ON]

Mr. Speaker, the legislation would ensure that individuals living on reserves have similar matrimonial real property rights and protections as those available anywhere in Canada. That is the same benefits that we have here in the House and outside of the House. We have benefits and rights but women on reserve do not have rights.

Some of the benefits that Bill S-2 would provide are: safety for children and their caregivers in instances of family violence; stability for women and their children through continued access to the family home; continued connection to the community and extended family; access to services, children's programs and education facilities in the community; the equitable distribution of matrimonial real property assets; and that is just to name a few.

The legislative gap that Bill S-2 would fill has hurt families and entire communities. Moving forward with Bill S-2 to provide individuals living on reserve--

[The Acting Speaker, Conservative, Bruce Stanton]

Order, please. There are other members who still wish to pose questions.

Questions and comments. The hon. member for Nanaimo--Cowichan.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, what the member has failed to address in her comments is that there is not one red cent for housing on reserve.

A recent decision at the Convention of Elimination of Discrimination Against Women cited a case in the north where a woman's relationship split up and she lost the right to housing on reserve. CEDAW recommended two important things: first, that there needed to be some remedy around housing, which this bill does not include; and second, that there needed to be some remedy around access to legal services, which this bill does not include.

I wonder if the member could talk about the fact that there is absolutely not one thin red dime to do anything about the housing shortage or the lack of legal services.

[Susan Truppe, Conservative, London North Centre, ON]

Mr. Speaker, in my view, they are trying to deflect attention from the critical need for this legislation to address the issue of matrimonial real property on reserves. Interested groups have unanimously agreed that this legislative gap needs to be resolved on an urgent basis. It should not be stalled because of the fact that someone should have a broader discussion on the concept of inherent rights.

As I mentioned earlier, Bill S-2 offers a recourse to a spouse or common-law partner and his or her children who have been kicked out of the family home. The individual should not continue to be denied basic rights that people living off reserve take for granted. This is why we need to pass this legislation without further delay.

[Joyce Bateman, Conservative, Winnipeg South Centre, MB]

Mr. Speaker, I welcome this legislation because I think, as does the group I represent, all women in this country should have the same rights. I am proud to be associated with a party that believes that, no matter where one lives in this great country, all people should have the same rights.

I would like clarification on one point from the parliamentary secretary. In her remarks she mentioned that over $8 million had been spent in consultation just since 2006-07 and that organizations, like the Assembly of First Nations and the Native Women's Association of Canada, each received $2.7 million to do this consultation. Could that item be clarified for me?

[Susan Truppe, Conservative, London North Centre, ON]

Mr. Speaker, in addition to the Senate amendments to Bill S-4 , changes were also made to the bill before it was introduced as Bill S-2. These changes encourage and assist first nations in developing their own laws. The verification process, including the role of the verification officer, has been removed. First nations are still required to ensure voters are informed of the first nations proposed law and when and where the vote will take place. The ratification threshold for first nations matrimonial real property laws has been lowered to a single majority with a set participation rate of at least 25% of all eligible voters. The lower threshold will help first nations approve their own laws and a 12 month transition period before the federal provisional rules come into force.

[The Acting Speaker, Conservative, Bruce Stanton]

Before resuming debate, it is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Algoma—Manitoulin—Kapuskasing, Fisheries and Oceans; the hon. member for Nanaimo—Cowichan, Aboriginal Affairs; the hon. member for Saanich—Gulf Islands, Foreign Investment.

Resuming debate, the hon. member for Manicouagan.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I will be sharing my time with the hon. member for New Westminster—Coquitlam.

In a continued effort to raise the cultural subtleties that should be weighed and examined during the review of a given legislative initiative, I think it is important to emphasize the highly questionable nature of importing statutory measures that are incompatible with parallel tribal mechanisms that better respond to the uncertainties associated with life on reserve. I stress the word “importing” because I would like to use comparative law to illustrate that sometimes transposing into another reality certain rules of law that apply indiscriminately across the country can become a problem. That is what I want to illustrate here.

As I have indicated in many of my previous speeches in the House, life on reserve—and I mean no disrespect—is like living in another galaxy. I spent some of my formative years in my native community on the Uashat reserve. I often tell new visitors that life on reserve is like living in another galaxy. I say this so that people are not surprised at what they see and are prepared for this type of reality. When I say that it is another reality or another galaxy, I mean that life is different there. I will explain what I mean.

I am a lawyer. I am a criminal lawyer first, and I deal with psychiatric cases, but I have also taken on a few civil law cases having to do with, among other things, the division of property and the division of acquests in aboriginal communities. This was extraordinarily complicated.

Under Quebec civil law, in the event of divorce or the dissolving of a civil union, there are required steps that are outlined in the Quebec Civil Code and related statutes. Certain rules apply, particularly to the family home. Often a declaration of family residence is filed. The declaration is meant to protect the rights of the former spouses and their children and, ultimately, the occupancy rights concerning a given home. I would remind the House that the bill currently before us has to do with real property.

These provisions and rules apply equally to everyone across Quebec. However, they can be contentious; there is a reason these matters often wind up before the courts. Courts dealing with matters of family law can spend days hearing a single divorce case. In Quebec, these are big civil law cases.

In aboriginal communities and on reserves, things are different, because the very concept of property is regarded from a different angle. I would point out first of all that, in the vast majority of cases, the houses belong to the band council. At least, that is the case in my situation and in Innu communities on the north shore. People's houses usually belong to the band council, because it is often difficult for family units to obtain credit on native reserves. It is a question of the possibility of seizure. More often than not, ownership of all residences on the reserve lies with the band council.

Let us look at a very personal example: my own family unit. A deduction for the mortgage is taken every month from the allowance that my father receives. Let us say that the mortgage on the home is worth $175,000. For 25 years, a monthly deduction is taken to pay that mortgage or to pay the band council for the house. The band council retains ownership of the house until the final payment is made.

The band council also makes decisions about and coordinates who occupies homes on the reserve. I worked for my own band council for two years and I was often called upon to go to court. The band council gave a directive that it would recognize all civil judgments made regarding custody and child support. As a result, when a judgment is made and grants custody of a child or children to one former partner or spouse, that individual has the right to occupy the house.

That is why it is rather ill-advised and uncalled-for to try to import external principles into a reserve.

People are already coming to their own arrangements. They have gotten together and have come to an understanding. The entire community comes to a consensus. I think that there is some friction related to that. I have seen it when someone dies and it is time to find out which family members will ultimately live in the house. However, we must also consider that our culture is a fundamentally oral one. People have come to a consensus and agreed on something that satisfies each of the interested parties.

I must also point out that although the problems related to sharing real property and the occupation of the family residence following a separation must be considered directly, it is up to this country's aboriginal communities to come up with measures that are culturally adapted to their own particular circumstances.

I will insist on the fact that imposing provincial laws on first nations without their consent is problematic ethically and practically, and it also disregards their inherent rights and their sovereignty. However, that is nothing new. In fact, in the past year and a half, the Conservatives have imposed measures unilaterally, especially in aboriginal affairs.

I am an expert in this area and, as the critic, I often talk about such matters. In this case, the Conservatives are just trying to prove that they have brought forward measures— albeit in a hasty, uninspired and rather disorganized manner—simply to take some credit and to say that they have dealt with the matter head-on.

I submit that it would be preferable to take a reasoned and slow approach, and one coming from and implemented first and foremost by the communities. Then government input could perhaps be added into the mix. However, above all else, these measures must originate with the members, the grassroots, the people in the communities, if we do not want this to be a stillborn initiative.

The government will have to realize that the people who live in these communities, in these sometimes contradictory conditions, are in the best position to evaluate which legislative measures could be implemented.

I submit this respectfully.

[Michelle Rempel, Conservative, Parliamentary Secretary to the Minister of the Environment]

Mr. Speaker, my colleague opposite has indicated that he is a bit of an expert in this area and obviously has worked in it. It is my understanding that, when there is a situation of abuse, a judge can order an injunction to remove the abuser from the home until the situation can be resolved.

This law would allow aboriginal women to have the same rights as the rest of the women in this country, so if there are situations of abuse, abused aboriginal women do not need to find their way on to the streets; a judge can intervene.

Given his experience in this area and his obvious concern for his band, how would he justify his comments that it is awkward or inappropriate to transpose these principles in a situation of property rights, when it clearly affects abused aboriginal women?

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I would like to thank the hon. member for her question.

It is important to pay close attention and to make a distinction. Criminal cases and civil cases are two separate things. Sometimes there is interference between the two, meaning that, in the end, decisions will be rendered in the civil court.

It is a shame, but nearly half my caseload involved cases of domestic violence. I am not proud of it, but that is the reality in our communities. Often this element comes into play.

When the criminal court delivers a ruling, when these cases are dealt with and a person is charged, the court imposes a restraining order and the offender is prohibited from contacting certain individuals. What we see most often is that, when judges—not civil court judges but criminal court judges—sentence an offender, that person is forbidden from contacting their family and from returning to the family home, even if the offender is technically a tenant or even the owner of the home. I have seen it before. If the woman stays with the children, the offender has to find another place to live.

Everything changes when the case is dealt with by the criminal court.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I appreciate the member's background and comments on the issue, and I listened quite attentively through interpretation. Could he give us a sense, from his perspective, in terms of what he would see as a potential alternative? Are there some answers? Has he been able to have some discussions with individuals? How would he like to see it go?

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I would like to thank the hon. member for his question.

Generally speaking, it would be nice to see some real involvement in Canada's political scene. There are seven Indians here in this House and some of them have never or almost never given a speech in public. I suggest that we forget about having token representatives and stop keeping Indian MPs around just for show. Instead, we should really get them involved in the decision-making process. I also suggest inviting first nations community members to get involved and really listening to them.

The Conservatives will say that they held consultations with the first nations in this particular case, but there is no point if they are holding those consultations just for show and they do not take into account any of their comments or concerns. That is what happened in January. The Conservatives put on a big show complete with fireworks, but in the end, it was meaningless. There are still problems with education, and living conditions in first nations communities are still deplorable. That is because the Conservatives are all about smoke and mirrors and make-believe.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, in the speech by the member for Manicouagan, he raised the issue of provincial jurisdiction. I wonder if he could comment on whether he has any knowledge about whether the federal government actually even talked to the provinces, because of course this is another example of naming the provinces as having some jurisdiction here. I would suspect that the government has not actually talked to them about what it would mean to their own current caseload. Could he comment on that matter?

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I want to thank my colleague for her question. I am not aware of any real consultation with the provinces. However, if provincial standards are imported across the country, this will cause a great deal of upheaval.

I would like to address this because I read somewhere that provincial standards do not apply on reserves. That is not true. Almost all provincial standards, provided they do not violate the principles set out in the Indian Act, also apply on reserves.

When I say it is another galaxy, that is more or less what I mean. That is the image, the idea in terms of mentality and lifestyle. Provincial standards do indeed apply to all Indian reserves, provided they do not violate the Indian Act.

No, I have no idea whether there were any discussions with the provinces in this particular case.

[Fin Donnelly, NDP, New Westminster—Coquitlam, BC]

Mr. Speaker, I sincerely appreciated the speech from the member for Manicouagan and his direct experience with the first nations' life and living conditions. It adds a lot to this debate.

I also want to take time to acknowledge our critic for Indian and northern affairs, the member for Nanaimo—Cowichan, who has done excellent work in the past and also adds a lot to this debate and this discussion.

Today we are talking here about Bill S-2, an act concerning matrimonial real property on first nations reserve lands. It makes changes to the Indian Act to allow for provincial family law to apply on reserves in the event of a matrimonial breakdown or the death of a spouse or common-law partner.

There is a legal vacuum concerning real property on reserves due to the jurisdictional divide, wherein provinces and territories have jurisdiction over property and civil rights within the provinces, and the federal government has jurisdiction to legislate “Indians, and Lands reserved for the Indians” under section 91.24.

The Indian Act does not provide for a division of MRP upon marriage breakdown, and first nations jurisdiction is not explicitly recognized by Canada. This has led to major legal cases, such as Derrickson v. Derrickson, 1986, and Paul v. Paul, also 1986, which were dismissed by provincial courts because the provincial laws cannot apply to lands on an Indian reserve. Thus, there is this legislative gap.

Bill S-2 is the fourth iteration of similar legislation that the Conservatives have tried to pass since 2008, and the NDP has opposed every time it has come forward for debate.

There have been five parliamentary studies that have been conducted on MRP: A Hard Bed to Lie In by the Senate in 2003; Still Waiting by the Senate in 2004; Arm-in-Arm by the aboriginal affairs and northern development committee in 2005; the report by the status of women committee in 2006; and a ministerial report by Wendy Grant-John in 2006.

I just want to mention the latter, which stated that no consensus has been found regarding legislation that could apply to MRP. Among other things, it recommended that concurrent jurisdictional models be used where first nation law was paramount and that the government needed to identify the real costs of implementing provincial legislation on reserves.

All previous bills, and now Bill S-2, neglect almost all of the recommendations made by all of the aforementioned reports.

The Conservatives are trying to say that the recommendations from the 2006 ministerial report by Wendy Grant-John are being implemented, but that is absolutely not the case.

There is no question that this issue needs to be addressed. However, the Conservatives are trying to pass a law that appears to be in favour of first nations women's rights while ignoring the voices of first nations women themselves. They are fast-tracking legislation without addressing all the relevant non-legislative problems that first nations women and families have identified.

The Conservatives are not interested in a fulsome discussion of the bill or any first nations issues. They want to hastily enact a bad law just so they can say they have done something.

The problem requires a comprehensive response led by first nations. This approach must address family support services; more on-reserve housing and shelters; police support services; building first nations capacity to resolve disputes; solutions to land management issues; and resolutions of matters relating to citizenship, residency and Indian status.

Bill S-2 is an insincere and overly simplistic attempt to rectify a complex problem that was brought about by the Indian Act.

The Assembly of First Nations facilitated a dialogue, which identified three broad principles that are key to addressing matrimonial rights and interests on reserve. I will identify those: recognition of first nation jurisdiction; access to justice, dispute resolution and remedies; and finally, addressing underlying issues such as access to housing and economic security.

Based on these principles, I would like to take a closer look at two important themes that underpin the position of the New Democrats on Bill S-2: the absence of meaningful consultation with first nations; and the need to address the non-legislative problems surrounding the issue of matrimonial property rights.

I will turn to what others had to say on this in elaborating on meaningful consultation and non-legislative problems.

Ellen Gabriel, the former president of the Quebec Native Women's Association and AFN grand chief candidate, said:

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.

This is a growing trend of the Conservatives thrusting legislation upon Canadians without first consulting.

For example, the fisheries and oceans committee studied several clauses of Bill C-45, including a clause relating to the definition of what constituted an aboriginal fishery. There was an absence of consultation with first nations. It was only a one-way dialogue.

I will offer another quote from Stuart Wuttke from the Assembly of First Nations. He said at the fisheries and oceans committee:

—we feel if there's consultation and accommodation with respect to first nation interests, there may be a balanced approach. We would definitely prefer that, and we would recommend that consultation and accommodation take place in order to alleviate any potential problems that may exist in the future.

Consultation allows a legislative to find a balanced approach that serves the best interests of all stakeholders and to alleviate any potential problems that may exist in the future. For example, if the government had properly consulted on Bill C-38, it probably would not have found itself making so many amendments now in bill C-45.

According to the UN Declaration on the Rights of Indigenous Peoples, to which Canada is a signatory, consultation requires consent. While Canada has conducted limited consultation, no consent was given by rights holders. Therefore, if we endorse Bill S-2, we will be in violation of article 32 of the UNDRIP, which ensures free, prior and informed consent of any matter relating to the lands or welfare of the rights holders.

I will further add what other first nation women are saying. The Native Women's Association of Canada says:

NWAC is being told by its members that the MRP legislation is too prescriptive and does not adequately support Indigenous legal systems. As well, no financial resources will be allotted to support First Nations Governments to actually implement the legislation, if it were to get passed.

The NWAC testified at the Senate hearings on Bill S-2 and said the following:

—our women and population and constituents have repeatedly told us 12 months is not a sufficient transition period if this bill were to go ahead. First Nations are dealing with governments that are already overloaded with many socio-economic issues.

We are looking at a longer-term plan: two years, five years and ten years. Those are the types of plans that need to be developed in cooperation with First Nations, not government designing it and having patchwork input from First Nations. You will have a holey quilt, if you will. Too many resources will also be spent, and it will not be a satisfactory result for anyone.

We would rather take the time, do it right and stop pushing ahead in a rush to have a quick resolution that might not be a good one for anyone.

The image of a holey quilt is a good one and identifies the need for co-operation with first nations that the government should have.

About Bill S-4, which was a previous incarnation of Bill S-2, Pam Palmater, a professor of aboriginal law at Ryerson, said:

The Minister also said that Aboriginal women are in need of “immediate protection”. If the Minister actually listened to the voices of Aboriginal women, he would have heard that Aboriginal women do not want Bill S-4 as it is currently drafted. He would also have heard that what they do want is gender equality addressed in all of Canada's legislative initiatives....

[Roxanne James, Conservative, Scarborough Centre, ON]

Mr. Speaker, I have a very big concern. I hear the member talk about not being interested in having fulsome discussions with the communities that are going to be affected by this legislation. I am not sure whether the member actually knows, but consultations on this issue began back in 2005 and consisted of four phases. The Parliamentary Secretary for Status of Women actually indicated the amount of money that has been invested in helping first nations go out to their communities and find out what the best decisions are for their own people. In fact, I think the number provided was $2.7 million in funding for both the Native Women's Association of Canada and the Assembly of First Nations. Funding toward this piece of legislation totals $8 million. I wonder if the member is actually aware of that.

The second thing I heard that I could not believe was that the member said 12 months was not a long enough process for first nations to enact this legislation. Going back to 2005 when consultations began, is seven years enough? Seven years this has been in the works. We are finally at this point to protect women—

[The Acting Speaker, Conservative, Bruce Stanton]

Sorry, I do not mean to cut the hon. member off, but I know other members may have questions.

The hon. member for New Westminster—Coquitlam.

[Fin Donnelly, NDP, New Westminster—Coquitlam, BC]

Mr. Speaker, in fact I did reference four previous studies over a period of time that identified a number of recommendations and that has been quite a problem. Those recommendations, as I pointed out in my speech, have actually not been implemented. They have not been listened to and the first nations women who were part of previous testimony have commented about how they are not feeling listened to and that their recommendations are not being heard.

I referenced those four reports. What was concluded was that if the government had actually listened to the consultations it would not implement Bill S-2, this incarnation of the legislation, because of a lack of financial resources to support first nation governments, a lack of funding for lawyers, a lack of funding to account for limited geographic access to provincial courts and a lack of on-reserve housing and land mass, which would be necessary to give spouses separate homes on reserve.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I thank my colleague for his overview and for reminding us of the trajectory of this initiative. One of the things that frustrates us on this side of the House is that the government is bringing forward an initiative such as this when it has not dealt with the fundamentals. The fundamentals are actually about funding for first nations. A year ago we dealt with the crisis in Attawapiskat. We have seen that young people do not have access to education. Those are the real issues.

When my colleague talks to first nations people who are working on these issues, what are the priorities for them? Is it about the processes that the government comes up with or is it about getting results for everyday people?

[Fin Donnelly, NDP, New Westminster—Coquitlam, BC]

Mr. Speaker, my colleague raises an excellent point about what first nations face on reserve and even off reserve, which goes to the heart of the matter. In terms of on reserve, it is basic fundamental principles and conditions that are at stake here. What has been addressed, whether it is education, housing, clean water or infrastructure, are basic common issues that are related to the underpinning of what we are talking about.

Further, the efforts to remedy the serious problem of matrimonial property rights must be guided by the three principles that I previously mentioned: recognition of first nation jurisdiction; access to justice dispute resolution and remedies; and addressing underlying issues such as access to housing and economic security, which my good friend mentioned.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, my hon. friend from Saint-Léonard—Saint-Michel also rose to speak. Therefore, pursuant to Standing Order 62, I move:

That the member be now heard.

[The Acting Speaker, Conservative, Bruce Stanton]

The House has heard the terms of the motion. Is it the pleasure of the House to adopt the motion?