Debates of June 11th, 2013

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Dany Morin, NDP, Chicoutimi—Le Fjord, QC]

Mr. Speaker, Bill S-2 puts the onus on couples to resolve disputes in court, yet it does not improve access to provincial courts. In addition, it is difficult for the bill to be enforced, in a practical sense, in many first nations communities. It is unrealistic.

Instead of presenting first nations with a bill that is ineffective, will the Conservatives commit to supporting the implementation of remedies within first nations communities that would stem from their own legal traditions?

[Wai Young, Conservative, Vancouver South, BC]

Mr. Speaker, that would be like saying that human beings cannot fly in an airplane. Just because things are sometimes difficult, it does not mean they are not the right thing to do, nor are they insurmountable.

We have built into Bill S-2 all kinds of abilities with respect to technology, as well as funding a centre, which would help first nations across Canada devise their own laws and devise how they would implement this within their own communities across Canada. With this new convention centre as well as the ability to phone, email or talk to a peace officer, certainly the access points for an order would be there, through Bill S-2.

In addition, I do not believe that this Parliament, in righting a wrong, should hang on the fact that it is difficult. The government and this country have overcome many other difficulties and we are confident that this is a good bill, a necessary bill and an urgent bill.

Again, I would urge the member opposite to vote with us on protecting women and children on reserve.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I do not doubt for one moment the intention my friend from Vancouver South brings to this is to right a wrong.

My problem is that I have looked at the briefs and talked to women in first nations communities who do not think the bill would accomplish its end, and they see significant problems.

Because she is not on the floor of the House to say this, my friend Ellen Gabriel from Kanesatake in her brief said that the areas of concern for the bill, the problems, include, one, the incorrect assumption that the bill was accompanied by a consultation process. She was clear that it was not. Two, the lack of inclusion of the Constitution Act that protects and affirms inherent treaty rights of aboriginal peoples; three, the lack of resources for communities' implementation of the bill and problems with potential court orders; four, non-legislative matters and lack of access to justice; five, financial burdens placed on women who pursue these issues and are reliant on their spouses; and six, jurisdictional issues of provincial, federal, common law, civil law and indigenous customary laws.

Native women's associations of this country are not supporting the bill, and I ask my hon. friend from Vancouver South if we cannot step back and ensure that any bill we pass can work.

[Wai Young, Conservative, Vancouver South, BC]

Mr. Speaker, I am indeed shocked that someone of the member's stature, being a lawyer herself, does not recognize the fact that we need to start somewhere. By starting somewhere, we need to have the legislative framework to do so.

My short answer is, without the bill, women and children have no rights on their reserve. There is nowhere to start in terms of any of these programs and services.

The hon. member knows that consultation has occurred extensively across this country.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I will be sharing my time with the member for Saint-Bruno—Saint-Hubert, who will be taking the second half of the speech on Bill S-2.

I was deeply disturbed last night by the aggressive, attacking tone of the government on the bill. What we heard last night from speakers, and we are hearing a bit of that today, are very aggressive attacks from the government.

I certainly understand that the government feels it is in a weak position. The Conservatives brought forward Bill S-2 for consultation. They actually tried yesterday to say that they consulted with groups like the Assembly of First Nations and the Native Women's Association of Canada. They talked about the consultation process as something meaningful. None of them, not a single Conservative member of Parliament who spoke on this issue last night, and we have not heard any this morning, acknowledged that those organizations opposed the bill. In the consultation process that supposedly took place, the government was met with opposition from aboriginal women's groups from across the country.

There is something profoundly disturbing about government members who would stand in the House and say that they have done some kind of consultation when the organizations that they consulted with have said that the bill would not get the job done and, in many respects, the bill would actually be harmful.

The aggressive tone of government members has done nothing to allay the many concerns that we are hearing from first nations, aboriginal women's groups and aboriginal groups across the country. The reality is, the aggressive tone belies what the government's agenda has been when it comes to first nations. We have seen it cut back on funding for the aboriginal police forces that should be ensuring that women are protected on reserve across the country. It slashed and closed the First Nations Statistical Institute that gave us important information about what was happening right across the country. It closed down the National Centre for First Nations Governance.

The Conservative government has a lamentably poor record when it comes to adequately funding of first nations organizations. It is making first nations and aboriginal peoples in Canada pay the price of the Conservative agenda of bestowing billions of dollars on its pet projects, whether it is the F-35 or many others that we have spoken of over the last few days. It is aboriginal Canadians who are paying the price for the government's mean-spirited attitude toward first nations across the country and indeed toward all Canadians.

The government stands in the House and says it has slashed funding and would not provide any funding for Bill S-2, yet any aboriginal women's organizations that raise concerns, any opposition members of Parliament who raise concerns, are treated with an aggressive and attacking tone. We simply beg to disagree. This is a fundamentally wrong approach.

There is a duty to consult by the government and it did not consult in any meaningful way. Aboriginal organizations across the country are opposing Bill S-2.

Aboriginal organizations and aboriginal women's organizations are on one side saying the bill should be opposed. The government says it knows better, it will try to ram it through with closure and takes a very aggressive attacking tone with anyone who raises any of the very valid concerns that aboriginal organizations, aboriginal women's organizations and first nations have raised across the country.

The question then is, who has credibility? It is worth reading into the record what the Conservative government's record is. It has closed a wide variety of first nations organizations doing important work. It actually shut down the statistical institute that allowed all Canadians to understand the current situation of first nations. After seven years in power, here are the results: a quarter of first nations' children live in poverty. That is double the national average.

Suicide rates among first nations youth are five to seven times higher than rates among young non-aboriginal Canadians. Life expectancy of first nations citizens is five to seven years shorter than that of non-aboriginal Canadians. Infant mortality rates are 1.5 times higher among first nations. Tuberculosis rates among first nations citizens living on reserve are 31 times the national average.

A first nations youth is more likely to end up in jail than to graduate from high school. First nations children, on average, receive 22% less funding for child welfare services than other Canadian children. There are almost 600 unresolved cases of missing and murdered aboriginal women in Canada.

The Conservative government's record is appalling. It has not taken action on any of these issues. Last year, we saw our former leader, the member for Hull—Aylmer, go with the member for Timmins—James Bay to Attawapiskat, where they saw appalling housing conditions.

In the same way that the government is attacking members of the opposition, it told aboriginal women's groups and aboriginal groups in first nations across the country on Bill S-2 that if they dared to disagree, it would attack them. It would insult them and degrade them. In the same way that the government did that, we can remember the attacks on Attawapiskat. The attacks were on the first nations there, which were simply looking to ensure a better future for their children.

The Conservative government's attitude is that anyone standing in the way of its agenda is somebody to be attacked, insulted and degraded. The first nations of this country deserve much better than a government that will insult and deride them when they disagree fundamentally on a bill's direction.

The government introduced the bill, first in the Senate and then here in the House. The government introduced the bill and it has not got it right. The government cannot stand and say that it has done the consultation when the groups that it consulted with oppose the bill. There is an illogical disconnect between government members standing up and saying they have done the consultation and not mentioning that the groups they consulted with oppose the bill. It simply does not make any logical sense.

What it does, of course, is lessen the integrity of the individuals from the government side who are standing up and making these comments. Maybe they do not know. Maybe they are reading prepared talking points from the Prime Minister's Office, so maybe they really do not know that the organizations that they are trumpeting about having consulted with are opposing the legislation. I do not know.

On this side of the House, when we carefully read our comments on any bill that is coming forward, we make sure that we get it right. We make sure that we are making comments that are factually true. However, here we have Conservative members who, perhaps in a mean-spirited way or perhaps unknown to them, are mentioning organizations like the Assembly of First Nations and the Native Women's Association of Canada and saying that they have consulted with them, when those organizations oppose the bill and disagree with the government, very vehemently in some cases.

Where do we go from here? We have an appalling state of first nations after seven years of a Conservative government. We have slashing and cutting of a wide variety of important first nations organizations, including the First Nations Statistical Institute. It did not cost a lot of money, but given the horrendous situations in health and unemployment and the lack of opportunities for children and youth on reserve, one would expect that a government would want to know what was going on. The Conservative government wanted to be blind and wanted to shut off that source of information.

With that approach from the government, we can only say this. Yes, we will continue to stand up and speak against this bill, as so many aboriginal women's organizations, aboriginal organizations and first nations have. The New Democratic Party members of Parliament will be the voice of first nations, the voice of aboriginal women and the voice of aboriginal Canadians here in the House of Commons. We will continue to say, very clearly, that this bill needs to be strongly redrafted.

The duty to consult still exists for the government. The government has the obligation to consult with first nations and heed what they say.

[Rod Bruinooge, Conservative, Winnipeg South, MB]

Mr. Speaker, I would ask the member if he has any support for matrimonial real property rights for women on reserve who have gone through a marital breakup. Does he think there is any circumstance when that would be good public policy?

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I thank the member for his question. It was a sincere question, and I appreciate it.

There are numerous reports that deal with matrimonial real property that make solid recommendations. I am talking about “A Hard Bed to Lie In”, 2003; “Still Waiting”, 2004; “Walking Arm-in-Arm”, 2005; the Status of Women Report, 2006; and the Wendy Grant-John ministerial report from 2006.

All of these reports could have been guidelines for the government. They spoke to the issue of matrimonial real property rights and provided very substantive recommendations. A number of the aboriginal organizations across the country supported those recommendations. The question is this: Why did the government not heed those reports and follow those recommendations? The work had already been done, which is what I find so sad.

Aboriginal women have been waiting for such a long time. The government had a number of reports that provided substantive recommendations, but instead of following those recommendations, the government ignored them. Then, when first nation organizations said that this bill was inadequate and would do more harm than good, the government refused to listen to those aboriginal organizations and women's groups. It is sad. However, there is still time for the government to pull back and do the right thing.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Mr. Speaker, there is a concept that has been developing over the last two decades, and that is the honour of the Crown as it applies, in particular, to the aboriginal communities of Canada. I have been listening to some of the interventions on this debate at various readings, but I have yet to hear this mentioned. It puts on the Crown, as my colleague for Burnaby—New Westminster said, a true obligation to consult, and not to consult without the conclusions the consultations would lead to. The honour of the Crown is almost a fiduciary obligation and responsibility vis-à-vis our aboriginal peoples. I was wondering if my colleague would comment on that.

I hope that some members from the government side will speak to this later today. I might ask this question again. This is a very important matter that, unfortunately, has been neglected, but it should not be, because there is an obligation upon the Crown, and therefore the government, to act in a very particular manner vis-à-vis the aboriginal peoples of this country.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, first of all, the Conservative government has imposed closure, so there is not going to be this debate. The government's position seems to have weakened as the fact that it has not consulted aboriginal women's groups and organizations has become more apparent, and the government is shutting down debate.

I would quote Ellen Gabriel, the former president of the Quebec Native Women's Association. This is what she 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 require the free, prior and informed consent of Aboriginal peoples. While it is understood that legislation is not accompanied by commitments to adequate financial and human resources necessary to implement laws, these Bills will create further financial hardships on First Nations communities.

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

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.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I thank my colleague for all of the hard work she has been doing on women's issues for several years now.

She pointed out some problems inherent in this bill. Could she elaborate on those? We heard from first nations women, particularly in our women's caucus.

What is the member's perception of violence against women in aboriginal communities? What concrete measures could be taken, particularly with respect to the housing crisis and the fight against poverty?

I would like to hear the member speak to these major issues.

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, I thank my passionate and hard-working colleague for her question and I thank her for giving me the opportunity to talk about the testimony we heard in our women's caucus.

Aboriginal women are very disappointed that the government has not taken action to combat the violence they are experiencing. They told us that nothing has been done. Study after study gathers dust on the shelf. No action plan has been created. These women took the initiative to get organized and put pressure on the authorities to open inquiries, particularly in the case of abused, missing and murdered women.

These women do not even have the right to a roof over their heads. They have no financial assistance. WIthout a home or financial means, how do we expect them to be able to access the courts? That is the problem with this bill, which was unfortunately introduced in the Senate and not by the government. The government is trying to pass this bill today, but in my opinion, this bill is nothing but smoke and mirrors.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I thank my colleague for her speech.

The government boasts about having held consultations. Indeed, perhaps it did. However, after consulting communities, the government has to respond to their demands. In this case, most of the groups were very critical of this bill.

Does my colleague think that sound consultation involves taking into account what was said during the consultations and then incorporating all this information in a bill? Is that what the government did?

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, I thank our hard-working member, the youngest in the House, for his insightful question.

As I mentioned earlier, the government claimed that it consulted everyone, yet these consultations were quite limited. I quoted Mr. Atleo, the national chief of the Assembly of First Nations, and his words spoke volumes. Moreover, according to the Native Women's Association, this bill does not provide any tangible solutions to address the problems they face every day.

It is obvious that this government is once again trying to pass bills in a hurry just to get them done and pretend that it has already done all the required work.

Since the 2000s, no tangible solutions have been found to address the problem at the community level.

[The Deputy Speaker]

Resuming debate, the hon. Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development. The parliamentary secretary will have approximately five minutes.

[Greg Rickford, Conservative, Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development]

Mr. Speaker, I am thankful for the opportunity to speak to this particular piece of legislation. There have been discussions and contributions by a number of stakeholders. From my own experience and context, I think back to the more than eight years that I spent living and working in isolated first nations communities across Canada, in Ontario, Manitoba, Saskatchewan, British Columbia and parts of the Arctic Circle.

I mention this experience because earlier in the debate we heard some concerns put forward. I do not know if they are on the record or not, but I heard the words “jurisdictional matters”, and if I might say so with some humility, I have a sense not just for the issues as legal counsel for first nations communities over a number of years but for any of the jurisdictions where this might be a problem.

Earlier I had a line of questions for members across the way and in my own caucus, tough but fair questions around the emergency protection orders and priority occupation measures that this piece of legislation contemplates. In my respectful view, these are two key components of this legislation.

In the special standing committee on murdered and missing aboriginal women we heard from a witness who was unequivocal and categorical in her understanding of this legislation, particularly with respect to emergency protection orders and priority occupation. We heard that these two pieces would have, in fact, spared her from a tremendously difficult process that arose as a result of a domestic violence situation perpetrated on her by her partner at the time.

In the progression of this debate, we have heard members, particularly in the official opposition, identify a number of groups that they say are in principle against the legislation overall. With the greatest of respect, I do not think that considers some of the good people who commented on this legislation and may have made a general statement about it, because what they were really concerned about—and I think we are all in agreement on this point—is that whenever and wherever possible, the real effort should be to encourage first nations communities to develop their own matrimonial real property regime.

This bill would achieve that end. It says to first nations under a variety of different agreements, such as the First Nations Land Management Act and self-government agreements, to go out and make this. In fact, first nations do not even have to belong to one of those two categories to design or develop their own framework for matrimonial real property.

It is important, because we know that whether it is first nations communities or non-first nations communities, relationships do break down. In that final and most unfortunate category of relationship breakdown, or along the way, violence can arise. That is why my emphasis is on emergency protection and priority occupation: it is because this is where the real vacuum in the law exists. It is that fundamental ability of a police officer and a magistrate at that difficult time to give a woman and, most importantly, her children an opportunity to stay in the home.

I, unfortunately, have had a ringside seat in this special category that I am referring to. I have seen a woman and her family taken out of the home. It is not a very nice thing to see. I cannot imagine experiencing it. I can only relay to my friends across the way and to members of this government and caucus the importance of these two elements alone as grounds to consider matrimonial real property and how it would work on reserve until or unless first nations communities were in a position to develop their own regime that would respect these two important principles.

[The Deputy Speaker]

It being 11:12 a.m., pursuant to order made Tuesday, June 4, 2013, it is my duty to interrupt the proceedings and put forthwith every question necessary to dispose of the third reading stage of the bill now before the House.

The question is on the amendment. Is it the pleasure of the House to adopt the amendment?

[Some hon. members]

Agreed.

No.

[The Deputy Speaker]

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

[Some hon. members]

Yea.

[The Deputy Speaker]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker]

In my opinion the nays have it.

And five or more members having risen:

Pursuant to order adopted Wednesday, May 22, the deferred recorded division is deferred until later today at the end of oral questions.

Bill S-6—Time Allocation Motion

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I move:

That, in relation to Bill S-6, An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations, not more than five further hours shall be allotted to the consideration of the second reading stage of the Bill; and

that, at the expiry of the five hours provided for the consideration of the second reading stage of the said Bill, any proceedings before the House shall be interrupted, if required for the purpose of this Order, and, in turn, every question necessary for the disposal of the said stage of the Bill shall be put forthwith and successively, without further debate or amendment.

[The Deputy Speaker]

Pursuant to Standing Order 67.1, there will now be a 30-minute question period.

I invite hon. members who wish to ask questions to rise in their places so the Chair has some idea of the number of members who wish to participate in the question period.

Questions and comments.

The hon. member for Burnaby—New Westminster.