Mr. Speaker, this bill is the fifth of its kind to be introduced by the government since 2008. The background on this issue has been given and we have debated it. Every time it has had the opportunity, the NDP has opposed the bill, and that is the case again here.
I am a feminist and I fight for women's rights. I fought as part of the Quebec section of the NDP women's council for years, before I was elected, and I have had the honour of chairing the NDP women's caucus. I take these issues to heart.
Division of matrimonial property is an important issue. Courts have rendered decisions on this issue since the mid-1980s, and parliamentary committees have been studying it since the early 2000s.
Right now, when a couple divorces, the division of family property, such as the house and the couple's personal property, is determined by provincial legislation. Subsection 92(13) of the Constitution Act, 1867, provides that property and civil rights are under provincial jurisdiction. However, under subsection 91(24) of the Constitution, the Parliament of Canada has exclusive legislative jurisdiction over Indians and lands reserved for Indians. Therefore, provincial laws are not applicable to the division of property on the reserves.
In 1986, in the Derrickson case, the Supreme Court of Canada created a legal vacuum when it ruled that the courts could not rely on provincial law when determining the division of matrimonial real property on reserves. The absence of provisions at both the federal and provincial levels with regard to the division of matrimonial real property on reserves is a problem, because the people who live on reserves cannot appeal to the Canadian legal system to resolve issues relating to the division of property when a marriage has broken down. It is usually aboriginal women who pay for this legal vacuum.
The Assembly of First Nations determined that the following three broad principles were key to addressing matrimonial rights and interests on reserves: first, recognition of first nation jurisdiction; second, access to justice; and third, addressing underlying issues related to housing and economic security.
The bill does nothing to address any of these principles. On reserves, gender discrimination clearly exists when it comes to matrimonial real property. Everyone says so, including the courts, aboriginal people and politicians.
Bill S-2 does not solve the problem. It does not address the issues related to 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.
Here is what Assembly of First Nations National Chief Shawn Atleo had to say:
The legislation...does not provide the necessary tools or capacities for first nation governments to deal with the issues that arise when marriages break up. This is rightfully a matter of first nation jurisdiction and we must have this capacity.
First nations have repeatedly and forcefully called on the government to work with us on an approach that will truly give our people in our communities access to justice. There are already first nations that have put their own laws and approaches in place on this matter. These must be respected and a similar approach must be supported for all first nations.
The Native Women's Association of Canada also has a problem with this bill.
Despite previous recommendations that first nations must be involved and create the solutions that will address the multitude of socio-economic issues impacting on families, the government has consistently tried to rush the process and to push through legislation that has been drafted mostly on its own, with little involvement and disregard for the comprehensive recommendations of the past ministerial representative, and many first nations governments and organizations.
As I indicated earlier, a lot of work has already been done on this issue. For example, there was the 2005 report of the Standing Committee on Aboriginal Affairs and Northern Development entitled “Walking Arm-in-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property”.
The report set out a number of very worthwhile suggestions. It recommended that the government consult with the Native Women's Association of Canada and the Assembly of First Nations in order to develop a new law or amend the Indian Act. It also recommended that the first nations be given financial assistance so that they can develop their own matrimonial real property codes, and that any new legislation should not apply to first nations that have their own codes. What is more, the Canadian Human Rights Act should be amended to apply to people living on reserves. The report also suggested that Canada recognize the inherent rights of first nations to govern themselves.
Canada is a signatory to the UN Declaration on the Rights of Indigenous Peoples and, as such, consultation entails the consent of the people consulted. Although Canada conducted some limited consultations, no consent was given by the rights holders. As a result, we are opposed to Bill S-2 because it violates article 32 of the UN declaration, which requires the free and informed consent of the rights holders prior to the approval of any project affecting their lands or well-being.
Those are the reasons why I cannot support this bill. However, I would like to add that the government must treat our first nations with more respect. In addition to a better bill on matrimonial real property, it is urgent that the government work with first nations in order to put an end to violence against aboriginal women. It must improve living conditions on reserves, particularly with regard to the housing crisis, and it must put an end to systematic discrimination with regard to funding for first nations children.