The Minister of Health is continuing to heckle in the background about how it is.
Mr. Speaker, one of the things that I want to point out is that Bill S-2 was passed in the Senate back in December 2011. Here we are in the spring of 2013, finally debating it here in the House. If it was so urgent, first, why did the Conservatives not introduce that piece of legislation here in the House where we could have the kind of debate that is required, and second, why have they waited so long to bring it forward?
Once they decided that the House should actually debate the bill, they then invoked time allocation so that we could not have a full debate in the House. Then they moved a motion at the status of women committee limiting the time that we could call witnesses.
Contrary to what the members opposite have portrayed, what we actually heard from a number of witnesses is some very grave concerns with this piece of legislation.
First, let us recap this situation.
It was not urgent enough to bring it forward for a timely debate. It was not worth the kind of deliberation and consideration that the House should be taking because the Conservatives invoked time allocation, both in the House and at committee. They disrespectfully shut down witnesses and did not allow the opposition an opportunity to question key witnesses, such as the Native Women's Association of Canada. They are expecting us to just roll over for a piece of legislation that will not achieve what they are claiming it would achieve.
One of the things the Conservatives like to assert is that this bill is about protecting aboriginal women against violence, but I have to point out to the Minister of Health is that the bill does not talk about violence against aboriginal women. It talks about family violence, which is mentioned eight times only, and only in the context of emergency protection orders. Just because one says it is so does not make it happen.
If the government were truly serious about tackling the issues about violence against aboriginal women, it would endorse Motion No. 444, put forward by the member for Churchill, which calls upon the government to:
...develop, in collaboration, with the provinces, territories, civil society and First Nations, Métis and Inuit peoples and their representatives, a coordinated National Action Plan to Address Violence Against Women, which would include: (a) initiatives to address socio-economic factors...; (b) policies to prevent violence against women...; (c) benchmarks for measuring progress...
and so on.
There is a whole series of very concrete steps that the government could take if it were serious about dealing with violence against aboriginal women and children, but instead, it continues to put forward the empty words that would not keep women and children safe.
I also need to point out that many people recognize that matrimonial real property is a family and a community issue and that it is absolutely something we should be tackling. The problem is that the solution that the government puts forward is, as always, going to fall far short.
In a letter we sent to the Minister of Aboriginal Affairs and Northern Development, we outlined the concerns we have with the bill. I will read this letter into the record:
I wanted to express the profound concerns of the New Democratic Party regarding the current government's approach in dealing with the legislative gap related to matrimonial real property rights and interests on reserve.
During committee hearings on matrimonial real property (MRP) legislation currently before the House, we heard legal experts, First Nations' representatives and women's organizations speak against the current approach because they do not believe it will protect women from violence while also infringing on the collective inherent rights that women hold as members of individual First Nations.
In order to successfully address the issue of MRP, a collaborative process is necessary so that an appropriate and effective solution can be found that is supported by all stakeholders.
I would like to propose to you that we work on a new approach to MRP following all of the recommendations proposed by the Ministerial representative that would respect First Nations' jurisdiction and the principles of the UN Declaration of the Rights of Indigenous Peoples (to which Canada is a signatory).
To ensure full participation a key aspect of this approach is meaningful consultation on any proposed legislative solution, not just consultation on the principle or issue the legislation is intended to address.
Any MRP legislation should also be accompanied by non-legislative remedies to serious problems, including:
Timely access to remedy;
Ending violence against Aboriginal women through a national action plan;
Addressing the housing crisis on reserves including funding for women's' shelters;
Better access to justice including increased funding to legal aid especially to remote communities;
Increased financial resources to support First Nation governments to actually implement new process; and
Access to alternative dispute resolution.
In order to promote the process of reconciliation mandated by section 35 of the Constitution Act, 1982, we hope that you will follow up with us on this new way forward.
There is another way that matrimonial real property could be addressed. However, sadly, what we have here is a Conservative government track record of ramming through legislation without seriously looking at the consequences.
While I have the floor, I also need to correct the record around the Manitoba NDP. We hear members talk about this consistently.
In the Manitoba Hansard of December 6, 2012, the Attorney General of Manitoba made this clear:
...we can't deny the fact there are serious concerns that have been raised by people across this country about the process by which this bill was created, the content of the bill and then the subsequent impact of this bill on First Nations....
The Conservatives fail to tell people that it was a private member's motion that was introduced by a Conservative. Of course people support the principle of matrimonial real property, but as is clearly outlined by the Attorney General in Manitoba, they have grave concerns about this particular approach to it.
One of the witnesses who came before the committee was the Acting Chief Commissioner of the Canadian Human Rights Commission. The Acting Chief Commissioner posed three very important questions that I would argue the Conservative bill fails to address.
First, the acting Commissioner asked, “Will the proposed legislation provide women with fair access to justice?” The second question was “Will the proposed legislation ensure women will be able to access their rights in a safe way?” and the third was “Do first nations communities have the capacity they need to develop and implement their own matrimony real property systems, and if not, what can be done to correct this problem?”
I would say that to all three of those questions, the answer would be no.
With regard to fair access to justice, the members opposite like to say that because we will make legislation, somehow or other fair access to justice will be in place. Well, we know that first nations in reserve communities have virtually no access to legal aid, and second, when it comes to getting to courts or having access to the court system, it is very difficult.
One woman from Quebec told us that when she was going to court, she had to travel in the same vehicle as the spouse she was separating from. There was no transportation to where the court system was and there was no money to provide for both parties in the dispute to go to court, so they had to travel in the same vehicle.
In terms of fair access to justice, there have to be legal remedies available, the court system has to be accessible for people, particularly in rural and remote communities, and some education and training should go into the court systems.
We have heard members opposite also talk about the centre for excellence. Let us think about it for one moment in terms of fair access to justice.
The Conservatives are saying that this centre of excellent would provide tools and resources for first nation communities who want to develop their own matrimonial real properly codes. This sounds pretty good. We would support that. However, in one year, first nation communities are not going to have access to the resources and tools they are going to need to have that code in place by the end of the year, because what has to happen is a very respectful process in order to develop that code.
The Acting Chief Commissioner's second question was “Will the proposed legislation ensure women will be able to access their rights in a safe way?”
We heard from a number of witnesses, and it was in the ministerial representative's report, that there are no non-legislative remedies attached to this piece of legislation. In terms of being able to access rights in a safe way, I want to talk about non-legislative remedies.
We understand there is a housing crisis in many communities. We also understand that in many communities, generations of families are living in one house. If a court order says one person or another will have the house, what happens to the rest of the family members who are living in that house? Where will they go if, for example, they happen to be related to the spouse who is not able to live in that house anymore? Where will people go on reserves where there are already very serious problems with housing?
The Acting Chief Commissioner's third question was “Do first nations communities have the capacity they need to develop and implement their own matrimonial real property systems...?”
It comes as no surprise that there is no money in this legislation and that the likelihood of first nations communities being able to develop their matrimonial real property codes in a timely way is nonexistent. The NDP proposed an amendment to this legislation that the coming into force be changed from one year to three years to allow an adequate period of time for first nations to develop their own matrimonial real property codes. If the government were serious, it would support first nations having the time and resources to develop these codes.
When the Acting Chief Commissioner of the Canadian Human Rights Commission appeared before committee, he referenced a tool kit for developing community-based dispute resolution processes in first nations communities. Although this tool kit is about alternative dispute resolution, it would be useful in terms of providing support and some guidelines for first nations who want to develop their own codes. As well, it was developed in conjunction with a number of first nations communities, so it has cultural relevancy and an understanding of the process in communities. The tool kit references article 34 of the United Nations Declaration on the Rights of Indigenous Peoples. It says:
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.
That would seem to be a very good starting point in terms of developing matrimonial real property codes.
The tool kit goes on to say that there are four stages to developing an alternative dispute resolution. They could also be used in developing matrimonial real property codes. They include “leadership, values and principles; capacity-building for development and engaging your community; developing your community's dispute resolution model; and implementation, monitoring and continuous improvement”.
The tool kit talks about the fact that developing these kinds of processes can also be an educational process within the community.
It goes on to talk about developing a regional dispute resolution process that could provide reduced costs for human and financial resources for all of the communities involved, the opportunity to begin developing a broader aboriginal human rights system and the chance to demonstrate how equality principles are being implemented in the community. With the appropriate time and resources, it is quite possible that the matrimonial real property codes that could be developed within first nations would more reflect their own customs, practices and traditions.
There are a number of problems with this legislation. I know I am not going to have time to go through every one of them, but I want to touch on a couple.
One is the whole issue around property. I sometimes wonder if the members opposite actually understand the complexities of the land codes that are facing first nations communities.
The briefing document that was provided to committee, Issue Paper No. 7, talks about how housing on reserve:
...varies among First Nations in terms of policies, rules and customs. Housing may be divided into two broad categories, including “band-owned” housing, consisting of an estimated two-thirds to three-quarters of all housing on reserve, and “individually-owned” housing. Band-owned or individually-owned housing allocations may be applied in nearly any combination to the broad range of landholdings on reserves, whether individually-held (e.g. individual with a Certificate of Possession) or communal (First Nation social housing on general band lands).
It also goes on to say:
Many First Nation families rent homes on reserves from their First Nation or from another First Nation member. The interests or rights of individuals renting on reserves are not as clear as those off reserves, nor are the regulatory powers of band councils that rent housing, because provincial tenancy statutes likely do not apply.
So here we have this very complex system of housing on reserve. To say that Bill S-2 would somehow or other allocate housing based on an off-reserve housing model simply is not going to wash.
Members opposite continuously point out that this legislation would make first nations women's lives better. As is pointed out by Issue Paper No. 10 on gender-based analysis, that may actually not be the case, and women may in fact be disadvantaged by this legislation. It says:
Because women are more likely to be caregivers of dependent children and/or adults, men may be less likely to retain occupation of the family home on breakdown of a conjugal relationship. As a result, more women than men may be required to financially compensate their spouse or common-law partner for their share of the family home.
That could be a problem for many women. They may be women who work in the home and do not have access to any additional income. They may be women who are underemployed, or they may simply not have been able to put away money that would allow them to buy their family homes from their spouses.
One of the measures called for in the ministerial representative's report is access to a compensation fund that would allow men or women to buy out their spouses. None of that is included in this particular piece of legislation.
One issue pointed out in the ministerial representative's report was that first nations could be placed in a Catch-22 situation in which they would be held to the same standard as provincial governments but would not have the resources and capacity to achieve it. There is nothing in this legislation that addresses that.
There are a number of other issues I would like to cover in terms of non-legislative measures. However, I will not be able to do that in the limited time available.
Therefore, I move:
That the motion be amended by deleting all the words after the word “That” and substituting the following:
this House decline to give third reading to 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, because it:
(a) is primarily a Bill about the division of property on reserve but the Standing Committee on the Status of Women did not focus on this primary purpose during its deliberations;
(b) fails to implement the ministerial representative recommendation for a collaborative approach to development and implementing legislation;
(c) does not recognize First Nations jurisdiction or provide the resources necessary to implement this law;
(d) fails to provide alternative dispute resolution mechanisms at the community level;
(e) does not provide access to justice, especially in remote communities;
(f) does not deal with the need for non-legislative measures to reduce violence against Aboriginal women;
(g) makes provincial court judges responsible for adjudicating land codes for which they have had no training or experience in dealing with; and
(h) does not address underlying issues, such as access to housing and economic security that underlie the problems on-reserve in dividing matrimonial property.