Mr. Speaker, as we have made clear throughout the process for Bill S-2, the Liberal Party does not question the need to address the legal gaps and other problems surrounding the family breakdown for first nations living on reserve.
However, the political rhetoric of the government members regarding this bill has been absolutely shameful. It is reprehensible for the minister to stand in the House and say “I know opposition members do not care about aboriginal women and children, but we do.”
This partisan approach, this simplistic approach is completely against what the members on this side are objecting to. This problem will only be solved in a holistic way and if it is in keeping with the advice of first nations leaders and organizations and first nations women themselves.
The truth is that this bill will not effectively deal with the problem of matrimonial breakdown on reserves and fails to provide first nations with the tools to implement appropriate measures for families to resolve disputes safely in a culturally appropriate way.
Furthermore, the assertion of the government that the bill is the answer to the disproportionate levels of domestic and other violence against aboriginal women is appalling. It is patently dishonest for the Minister for Status of Women to stand in the House and claim emergency protection orders alone will save lives.
The fact is the government's decision to move forward with this legislation, without dealing with the issues of access to justice and gaps in enforcement capacity, could actually make matters worse.
When Mr. David Langtry, acting chief commissioner, Canadian Human Rights Commission, testified before the Status of Women committee, he asked parliamentarians to consider three fundamental questions. First, would the proposed legislation provide women with fair access to justice? Second, would the proposed legislation ensure that women would be able to access their rights in a safe way? Third, would first nations communities have the capacity they needed to develop and implement their own matrimonial real property systems?
Although I would broaden the questions to include first nations men, I believe answering these three questions provides an ideal framework to analyze Bill S-2 in both its scope and effectiveness. As one reviews the limited evidence the House of Commons committee was willing to hear, experts who testified before the Senate and the many stakeholders who had provided comments outside the committee process, the answer to all three of these questions was a resounding “no”.
The government's own ministerial representative on matrimonial real property on reserve, Wendy Grant-John, noted in her report:
The viability and effectiveness of any legislative framework will also depend on necessary financial resources being made available for implementation of non-legislative measures such as programs to address land registry issues, mediation and other court related programs, local dispute resolution mechanisms, prevention of family violence programs, a spousal loan compensation fund and increased funding to support First Nation communities to manage their own lands.
She went on to say:
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.
The Liberal Party is very concerned that the government disregarded her advice and that of first nations from across the country and brought forward legislation without these non-legislative supports.
The potential solutions under the interim rules imposed by this legislation rely heavily on access to provincial courts.
As we have heard from many witnesses, many first nations communities are in areas with limited access to courts or lawyers and provincial courts may not be financially or even physically accessible for many first nations individuals.
Michéle Audette, president, Native Women's Association of Canada, put this issue into context when she told the committee:
Canadian women find it difficult to access justice because of the high costs involved, or, in the case of those who live in remote areas, because of the long distances to be travelled.
Therefore, imagine what it is like for women in our aboriginal communities. It is even worse.
She went on to say:
—it would be difficult for a woman who lives in a remote community such as Attawapiskat or in other communities in other provinces, such as in Quebec, to find a lawyer who knows family law and the Indian Act.
The persistent underfunding of legal aid systems across Canada have left them ill-equipped to deal with current demand. It is clear that they will be unable to deal with the additional burden of the unique legal and cultural realities of property division on reserve.
Another fundamental challenge facing the provincial court systems relates to a lack of experience with and understanding of these matters.
To mitigate these issues of access and cultural sensitivity, we heard time and again about the importance of the availability to alternate dispute resolution mechanisms in first nations communities to deal with matrimonial breakdown if there was no commitment to provide funding for alternatives to the court system, which would be more cost effective and culturally appropriate.
The government does not have a comprehensive plan to deal with these realities, which will deprive first nations individuals of practical access to the legal rights the law claims to provide.
The government has tried to frame this legislation in terms of responding to violence against aboriginal women. As noted earlier, it has emphasized that this legislation provides for emergency protection orders for women living on reserve and claims this will save lives.
Unfortunately, the government's decision to move forward with legislation, without non-legislative support, maybe the opposite for many first nations women.
Regional Chief Jody Wilson-Raybould addressed this in her testimony when she said:
—preliminary research we have uncovered shows a correlation between increased harassment and threats of violence against women who file for protection orders in instances where there are issues with their enforcement. We question the capacity and ability of such orders to be effectively enforced, particularly in remote communities with limited access to police services.
This very telling quotation must be viewed in light of the lack of funding available to first nations police forces and the fact that some first nations communities have far greater police presence than others.
While we are happy that the government is finally listening to first nations and Inuit police forces and the communities they serve by providing a longer-term funding agreement, it is clear that the government is still not providing these essential services with the resources they need to do their job.
In other communities serviced by the RCMP or other police services, there is often an inadequate police presence and the enforcement of existing laws is an ongoing challenge for these overstretched offices.
Beyond issues around adequate enforcement, the bill also fails to address the root causes of family breakdown and domestic violence, mainly the lack of housing, inadequate funding for child welfare and inadequate access to legal aid and other services for aboriginal women. For example, only 41 shelters serve more than 630 first nations communities in Canada.
Even Betty Ann Lavallée, the national chief of the Congress of Aboriginal Peoples, told the Senate that this bill should address the issue of emergency housing for victims of domestic violence, a recommendation that the government clearly chose to ignore.
We are concerned that many first nations do not currently have the capacity to develop their own rules around matrimonial property and will be left with the provisional rules for an extended period of time. That means communities will have provisional rules that do not reflect their traditional laws, culture or reality imposed upon them without the time or the capacity to move beyond them.
The government cuts to the National Centre for First Nations Governance, tribal councils and other institutions focused on building first nations governance capacity is further undermining the ability of first nations to develop and implement such a review.
The government talks about a promised centre of excellence which would help first nations develop rules of their own, but this will not be up and running until after the passage of the bill and likely after the time frame allocated to most first nations to develop their own rules.
There will only be a 12-month window for the first nations to develop and adopt their own regulations regarding matrimonial real property on reserves, before the provisional rules are imposed.
All the testimony we heard on the issue suggested this was a completely unrealistic time frame. The legislation that brought first nations communities under the jurisdiction of the Canadian Human Rights Act provided a three-year transition period.
We heard from the Canadian Human Rights Commission officials that in their experience that period may not even be enough, but would be more realistic.
Officials from the first nations Lands Advisory Board had more than 10 years of experience facilitating first nations law-making for matrimonial real property rights on reserve and they made it clear that they were:
—concerned about the potential impact of the proposed legislation on the 68 first nations that are presently waiting to become signatories to the framework agreement, and the other communities across Canada.
They went on to say:
Successful enactment of these laws by framework agreement signatories has invariably been the culmination of a multi-year, community-driven, consensus-building process...
The AFN has also suggested 36 months would be a more appropriate transition period and that is the time provided in this very bill to first nations in the First Nations Land Management Act process. Given current capacity issues and the fact that the centre of excellence would take time to develop, it was clear that all first nations should have the benefit of a consistent 36-month transition period to develop their own culturally sensitive matrimonial property regime, but the government refused even that common-sense amendment.
Although general public discussions were held on first nations matrimonial real property in 2006-07, it is important to note that both AFN and NWAC, the two first nations organizations the government engaged to facilitate those meetings, oppose this bill. Consultation requires both a substantive dialogue and the government members to listen and, when appropriate, incorporate what they hear into the approach. The Native Women's Association of Canada and the AFN have been clear that they are not confident the legislation will resolve the problems associated with matrimonial real property on reserve and have pointed out that the current bill will fail to address many of the recommendations repeatedly raised each time this legislation has been brought forward.
Further, given the recommendations of the government's own representatives and first nations about the need to deal with capacity and resourcing issues before, or at least in concert with, legislation, it is curious why the Conservatives decided to introduce the bill in the Senate where it was subject to increased restrictions on incorporating resources.
Since this bill was initiated in the Senate, it cannot generate any spending.
Then, despite the fact that the legislation was introduced in the House of Commons on behalf of the Minister of Aboriginal Affairs and Northern Development, the bill was sent to the status of women committee to be pushed through with only two weeks of witnesses.
This legislation deals with legal and cultural issues in the first nations, for both men and women.
It was completely inappropriate to, for reasons of expediency, have the study of these complex matters done by a committee with no prior experience with aboriginal issues. The fact that the committee did not allocate reasonable time to hear from organizations with the expertise and experience to highlight some of the challenges was particularly disappointing. The AFN and the first nations Lands Advisory Board had less than 20 minutes of committee time and NWAC was allocated 8 minutes. The Conservative majority then pushed this flawed bill through the committee without accepting a single amendment. This is not the way to produce effective and well thought out legislation.
The Liberal Party will not be supporting this legislation because the government has decided to move forward in a way that not only ignores many of the fundamental issues at stake, but actually may make things worse.