Debates of April 17th, 2013

Family Homes on Reserves and Matrimonial Interests or Rights Act

[The Speaker, Conservative, Andrew Scheer]

I declare the motion carried.

The House resumed from November 22, 2012, consideration of the motion 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, and of the motion that this question be now put.

Second Reading

[The Speaker, Conservative, Andrew Scheer]

I wish to inform the House that because of the proceedings on the time allocation motion, government orders will be extended by 30 minutes.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Speaker, today I rise to speak to the piece of legislation before us, Bill S-2. This bill marks the fourth attempt by the government to address a serious problem in the first nations community, a problem created by the Indian Act itself. Sadly, like the first three attempts taken by the government, it simply misses the mark.

Bill S-2 is a very simplistic attempt to rectify a very complex problem that stems from the Indian Act.

On reserves, gender discrimination clearly exists when it comes to matrimonial real property. However, Bill S-2 will be impossible to implement for the following reasons: a lack of financial resources to support first nations governments to actually implement the law; a lack of funding for lawyers and legal advice; a lack of funding to account for limited geographic access to provincial courts; a lack of on-reserve housing; and a lack of land mass that would be necessary to give both spouses separate homes on reserves.

There are no measures in the legislation to address the systemic problem of violence that faces so many women and that leads to divorce. According to Statistics Canada, first nations women are 3.5 times more likely to be victims of violence than non-aboriginal women, and 35% of aboriginal women have already been victims of violence.

Overcrowded housing has been linked to a number of health and social problems, including higher rates of respiratory infections as well as mental health and domestic violence problems.

In 2006, 14% of aboriginal women and girls were living in overcrowded housing—a proportion three times higher than among non-aboriginal women. On reserves, 26% of women and girls were living in overcrowded conditions, compared to 6% of those living off-reserve.

All the statistics I have just read into the record show that we have a serious problem before us. Those problems require a serious, well-thought-out solution. That is not what the Conservatives have brought before us today. They are once again fast-tracking legislation without addressing all of the relevant non-legislative problems first nations women and families have identified. They are showing that they are not interested in a fulsome discussion of this bill or any other issue affecting the indigenous peoples of this land. I am left with the strong impression that all they want is to quickly enact a bad law, just to say that they have done something.

The problems we are facing require a comprehensive response that is led by first nations communities first and foremost. The Conservatives did do some consulting with first nations and the Native Women's Association of Canada, but then in typical Conservative style, they ignored the results of the consultation when preparing the original legislation. As a result, both the Native Women's Association of Canada and the Assembly of First Nations are demanding better legislation, because the consequences of passing inadequate legislation are so dire.

One of the basic problems with this bill is that while it removes some of the most onerous parts of previous legislative attempts, it still refuses to recognize first nations' inherent right and jurisdiction in this matter. As a result, we again have the government telling first nations how they should run their lives, their communities and their systems rather than respecting their laws, their traditions and their inherent right to self-government.

This is the ultimate “daddy knows best” approach taken by the government, and it does nothing to make life better for women who live on reserve.

The Assembly of First Nations determined that three broad principles were key to addressing matrimonial rights and interests on reserves: recognition of first nation jurisdiction; access to justice, dispute resolution and remedies; and addressing underlying issues, such as access to housing and economic security.

Bill S-2 does not take any of these three principles into account in any meaningful way.

My province, Quebec, is a good example of the problems this bill will create. According to lawyer David Schulze, the particularities of my province have been overlooked in Bill S-2. Under the Civil Code, common-law partners do not hold any rights to property, but they would under Bill S-2. For example, a first nations member would have rights to his spouse's home on the Uashat reserve, but she would not have any rights to his home in Sept-Îles, across the street.

The lands covered by the most recent treaties, such as the Cree-Naskapi (of Quebec) Act, which applies to large portions of my riding, are excluded.

Under this bill, a Naskapi would have rights to his Innu spouse's home in Schefferville, but she would have no rights to his home 80 km away in Kawawachikamach, which is part of the Category I-N lands under the CN Commercialization Act and the Northeastern Quebec Agreement.

These examples show the new problems this legislation would cause in my home province alone, and they highlight another glaring problem with the bill: the imposition of provincial law on reserve. Imposing provincial legislation on first nations without their consent is ethically lacking and practically problematic and ignores the inherent rights of first nations citizens. By taking this avenue, the Conservatives are trying to make a quick fix, the equivalent of slapping a band-aid on an injury that requires major surgery. This approach is lazy and disrespectful toward those women who they claim to seek to help.

This proposed bill also runs afoul of the UN Declaration on the Rights of Indigenous Peoples, which the Conservatives finally endorsed in 2010. According to the declaration, consultation requires consent as well. While Canada has conducted some limited consultations, no consent was given by the rights holders to have provincial laws applied in their communities. Therefore, if the House passes and moves to enforce Bill S-2, we will be in violation of article 32 of the UN declaration, which ensures free, prior and informed consent on any matter relating to the lands or welfare of the rights holders.

Given the government's view of the UN declaration, I doubt that it sees that as a problem. Maybe that is why, after 14 months, we are still waiting for the Minister of Foreign Affairs to reply to the request of the UN Special Rapporteur on Indigenous Rights to study Canada. This approach shows why a bill like Bill C-469 is so important and needed today.

We have a big problem before us. It will require a comprehensive approach to arrive at a solution, one that must be led by first nations communities and be respectful of their own laws and traditions. Simply forcing provincial laws that were not written with those traditions and laws in mind will only make matters worse.

Part of the reason many first nations find themselves in this legal position today is that past governments took the “daddy knows best” approach, telling first nations how they should act, behave and govern themselves without giving any thought to their wishes, their needs, their desires or their rights. Today we know that this approach was wrong and a mistake, yet the Conservative government is determined to force us down the same failed path.

We cannot have true reconciliation and build that better tomorrow for all Canadians until we throw that failed approach into the trash can of history, where it belongs. We must renew a nation to nation relationship that begins with working with first nations communities, not dictating to them.

The Conservatives obviously have a great deal to learn about this. They seem more interested in being seen to do something while doing nothing, which is something they do with great skill. Now is not the time for pretending. It is the time to act and do this correctly right now. I hope that the government will take my words to heart, agree, and start to work with us to get this right, right now.

[Peter Van Loan, Conservative, York—Simcoe, ON]

Mr. Speaker, I rise on a brief point of order. I have the honour to table, in both official languages, documents entitled the government's responses to questions on the order paper numbers 1207, 1208, 1209, 1210 and 1211.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Mr. Speaker, I listened with interest to what members opposite were saying about the matrimonial rights issue. I find it really sad. Women's rights are being negated in the House. We need to support this issue. I have worked with many aboriginal women who have had so many challenges. They want to have these rights. They are so important. That has to be known to members opposite.

Why would the member deliberately shut off, just cut out, women's rights on reserves? That is exactly what is happening.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Speaker, a lot of aboriginal organizations have spoken against this bill. I am including in these organizations the Native Women's Association of Canada. If the member is suggesting that the Native Women's Association of Canada is against women in first nations communities, she is wrong. The Native Women's Association of Canada is right.

When we talk about respect for women, telling women what to think and what to do is not respect, for me at least. We have to listen to what they are saying. We have to act on the advice they are providing to the members of this House, and that is exactly what we are doing.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I thank the hon. member for the position he is taking on this bill. It is completely in keeping with what I have been told by the aboriginal community where I come from.

What deeply concerns me is the superficiality of the action taken by the government, and we see this over and over again. It is one thing to pass a bill in theory that gives a right to an aboriginal woman to go to court. However, how many of those women are living in isolated communities where there is a dearth of safe housing for anyone, including men, women and children? They cannot afford the bus fare, let alone have an available bus to go to town to hire a lawyer, let alone have the resources to hire a lawyer to fight these matters in court. Can the member speak to that and elaborate on the fact that the offer of the extension of the right is an extremely superficial one?

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Speaker, I thank my colleague for her question, which is very pertinent to our debate and our discussion about this bill.

In fact, there is much to be desired, even when it comes to contemplating how to apply and implement this bill. In our system of justice, the rule of law is part of our constitutional system. In this case, the rule of law is the government's constitutional obligation to consult the first nations and to make accommodations reflecting the concerns expressed during the consultations.

It is not enough to say that 100 organizations were consulted for hundreds of hours. It is not enough if the first nations are not heard or if the concerns they express during those consultations do not result in accommodations. That is the constitutional obligation that we have towards the first nations, the aboriginal peoples of this country. The government seems to be forgetting this.

[Shelly Glover, Conservative, Parliamentary Secretary to the Minister of Finance]

Mr. Speaker, I stand for victims today. I stand for those victims who are afraid, who have been kicked off reserve, who have begged us as a government to provide them with the same rights as all other Canadian woman. I stand for those victims who were kicked off reserve, who were sent into cities, who became exploited in the sex trade, whose children were taken away, and who will not come forward because of the fear of people on reserve who do not agree with giving them rights. Those victims are who we care about. That is what this bill is about.

I am ashamed of that side for not supporting it.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Speaker, what the women in particular have begged for is to do things right. They did not do it. That is the problem. That is what we are trying to fix. That is what the representations that were made were about. That is what the consultations were supposed to be for, and that did not happen. The Conservatives did not listen to them.

[Bernard Valcourt, Conservative, Minister of Aboriginal Affairs and Northern Development]

Mr. Speaker, I am indeed pleased to speak today in support of Bill S-2, the family homes on reserves and matrimonial interests or rights act.

Let me start by affirming and stating quite clearly that it is completely unacceptable that men, women and children living on reserve have for decades been deprived of the same basic rights and protections afforded Canadians living off reserve simply because of where they live.

Through this legislation, our government is addressing a long-standing legislative gap and ensuring that women, children and families on reserve can live in safe, stable home environments. I believe that the bill offers a practical, balanced and much needed solution that I wish to insist has been informed by national consultations with stakeholders, numerous reports, in-depth analysis and reasoned debate. I say now is the time for action.

I cannot emphasize enough the urgency of the issues that Bill S-2 proposes to resolve. Every day that passes until a solution is in place is one more day that women and children living on reserve do not have access to the same protections offered those living off reserve. Without the rights to matrimonial real property that other Canadians enjoy, more and more individuals and families, primarily aboriginal women and children living on reserve, are left defenceless, and in many cases, homeless and destitute. They are ostracized from the only community they have ever known and are forced to start life all over again elsewhere.

Bill S-2 offers an effective solution that would provide individuals with the rights and protections they need to ensure that they have access to the family home no matter which spouse is listed as the owner. The effect that the absence of legislation has on the lives on many individuals and families is a compelling reason for the members of the House to acknowledge the urgency of the situation and to pass Bill S-2.

Currently, and no one can dispute that, there is no law in place addressing matters related to on-reserve matrimonial real property and interests.

More than 25 years ago, two Supreme Court of Canada rulings clarified that provincial laws pertaining to matrimonial real property rights and interests do not apply in first nation communities. Given that no equivalent federal law exists, these interests and rights are not protected for individuals living on reserve in the event of a breakdown of a conjugal relationship or the death of a spouse or a common-law partner. This situation is unacceptable and should make endorsing Bill S-2 a top priority for the House.

Individuals who live off reserve have access to the protections and legal recourse set out in the provincial or territorial laws. However, individuals living in first nations communities, with few exceptions, do not benefit from such protections. No judge, police officer or court representative is authorized to intervene if someone throws his or her spouse out of the house or sells the family home and keeps all the proceeds from that sale. In other words, our justice system is not currently in a position to be able to end the harmful discrimination faced by an identifiable group of Canadians.

Canadians should not tolerate this fundamental injustice. The fact that this has been going on for 25 years is shameful.

It is true that a small number of first nations have developed laws pertaining to matrimonial rights and interests under the First Nations Land Management Act or self-government agreements. However, these options are not currently available to most first nations. As a result, over 100,000 Canadians do not have any legal protection in this regard. This has been harmful to many people, families and communities. These injustices have a negative impact on the lives of all Canadians, without exception. The only way to move forward is to enact an effective legislative solution, which is what Bill S-2 seeks to do.

Earlier, I heard the member opposite going on about consultations. Bill S-2 is based on extensive national consultations and Parliament's study of this issue. This work produced a wealth of high-quality information in the form of reports, studies, testimony and analyses. Bill S-2 is the result of all these contributions and analyses. The facts show that previous attempts strengthened the bill—

[The Deputy Speaker, NDP, Joe Comartin]

You have one minute left to wrap up your speech.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Mr. Speaker, I was talking about the consultations in 2010. The Standing Senate Committee on Human Rights studied an earlier version of the bill. The committee heard from more than 30 witnesses and adopted 12 amendments to improve the bill and reflect the input and comments received from stakeholders, including first nations and provinces. That version of the bill died on the order paper with the dissolution of Parliament, it but serves as an example of how previous studies and testimony have strengthened the legislation now before us.

In 2011, Bill S-2, the current iteration of the legislation, was introduced. It included not only the 12 amendments but also three additional changes that were suggested and made to the bill.

Therefore, I would say that we have spent enough time on it. This is the time for action. Let us pass this bill.

[The Deputy Speaker, NDP, Joe Comartin]

It being 5:45 p.m., pursuant to an order made earlier today, it is my duty to interrupt the proceedings and put forthwith every question necessary to dispose of the second reading stage of the bill now before the House.

The question is on the motion that the question be now put. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Deputy Speaker, NDP, Joe Comartin]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker, NDP, Joe Comartin]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker, NDP, Joe Comartin]

In my opinion the yeas have it.

And five or more members having risen:

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Vote #659

Family Homes on Reserves and Matrimonial Interests or Rights Act

[The Speaker, Conservative, Andrew Scheer]

I declare the motion carried.

The next question is on the main motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Speaker, Conservative, Andrew Scheer]

All those in favour of the motion will please say yea.