Debates of the Senate  
3rd Session, 40th Parliament,Volume 147, Issue 41.
  Monday, June 21, 2010
Family Homes on Reserves and Matrimonial Interests or Rights Bill

Third  Reading-Motion in Amendment- Vote Deferred

On the Order:

Resuming debate on the motion of the Honourable Senator Nancy Ruth, seconded by the Honourable Senator Nolin, for the third reading of Bill S-4, 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, as amended.

Hon. Lillian Eva Dyck: Honourable senators, today I rise at third reading of Bill S-4, 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, as amended.

Honourable senators, today, June 21, is National Aboriginal Day, so it is quite important that we deal with this bill on this day.

This is a dangerous bill. It contains the seeds of destruction of two fundamental First Nation rights: first, the inherent rights to self-government; and, second, the inalienability of reserve lands that should be reserved for occupation by only First Nation people. I urge all honourable senators to defeat Bill S-4. It is a terrible bill.

In the testimony of the committee's witnesses, one can see that we heard from 13 chiefs who all were basically opposed to it. We had chiefs from the Assembly of First Nations, the Association of Iroquois and Allied Indians, the Federation of Saskatchewan Indian Nations, the Native Women's Association of Canada, Six Nations of the Grand River, the Chiefs of Ontario, the Mohawk Council of Akwesasne, the Atlantic Policy Congress of First Nations Chiefs, the Chief of the Serpent River First Nation, and Emma Meawasige, an Elder from the Serpent River First Nation. They all thought Bill S-4 should at least be withdrawn and amended. They did not want it. The Native Women's Association of Canada and the Quebec Native Women were opposed to it. The National Aboriginal Circle Against Family Violence issued a report that said they were opposed to this bill. They did not want this legislation. The lawyers who appeared before the committee were opposed to it, or at least said we should withdraw it and do in-depth consultation and accommodation. In other words, they said that we should listen to what the First Nation people have to say. The lawyers were from the Canadian Bar Association and then there was Dr. Pamela Palmater, who has incredible credentials. She has a Bachelor of Laws, a Master of Laws and a PhD in the Science of Law. She panned this bill.

This bill should be defeated. I will keep saying that over and over again.

Even the matrimonial real property report prepared by the minister's representative, Wendy Grant-John, said that the Department of Justice should confirm compliance with both the charter and section 35 of the Constitution Act. In other words, is this bill against the constitutional right of First Nations to inherent self-government and treaty rights? This compliance has not been confirmed. It is unconstitutional and some chiefs said they will oppose it. However, they lack the resources to take it to court to challenge it.

In her report, Wendy Grant-John also said to evaluate the First Nations Land Management Act program and assess any shortfalls. We had a chief from Saskatchewan, from the Muskoday First Nation, who said that the First Nation Land Management Act works well. The only problem is that it is not resourced. First Nations are waiting for the resources to implement matrimonial real property laws through this act, which we already passed. Apparently, it has expired, but it can be reopened. Therefore, we have a solution that was already in place.

In addition, this is the third time this bill has gone through Parliament; it has not made it yet. In May 2009, the Native Women's Association said that "NWAC uses this legislation as an attempt to erode the land base of First Nations." It will divide up the reserve land so that it is no longer land that is occupied only by First Nations or Indian people who are registered under the Indian Act.

NWAC was opposed.

The Assembly of First Nations dealt with it in July 2008. They had an annual general assembly and passed resolutions. At that time, it was called Bill C-47. The chiefs and the assembly rejected Bill C-47 because it did not fulfil the duty of the Crown to consult and to accommodate the views and interests of First Nations. They wanted the government to withdraw Bill C-47 and provide First Nations with resources to develop and implement a meaningful process properly that respects First Nations jurisdiction and existing First Nation processes addressing matrimonial real property.

Honourable senators, all the chiefs from across Canada were opposed to the bill. How much clearer can it be?

In her report, the chair of the Standing Senate Committee on Human Rights indicated that the chief from the Federation of Saskatchewan Indian Nations described the bill as "encouraging." However, we must also recognize that the chief said,

We must ensure that legislation developed does not take away from the human rights issue and put it against the rights of First Nations people. I am here to serve notice that Saskatchewan is treaty based. Therefore, it is natural that we want to ensure our collective rights are met and respected. I ask that we have more time to assess this possible conflict to ensure that our collective rights will be met when MRP legislation is put in place.

That is from Chief Marie-Anne Day Walker-Pelletier, Federation of Saskatchewan Indian Nations.

The chair also indicated that the chiefs from the Atlantic Policy Congress of First Nations Chiefs thought the bill was positive, but they also go on to say:

Our member chiefs do not support Bill S-4 as it currently stands. [APC] passed a resolution in their last meeting in May expressing their non-support for this bill due to their serious concerns with its potential impacts.

Honourable senators, they do not want it.

The chair indicated that she thought Bill S-4 strikes an appropriate balance between protecting rights of individual Canadians and accommodating the collective interests of First Nations. However, almost all the First Nations who testified stated that balance was not met.

Dr. Palmater probably said it best when she said:

A fundamental difference in world view is involved. The principle behind Bill S-4 is protecting Aboriginal women. Aboriginal people look at the entire community. We talk about a bill protecting individual rights; Aboriginal people talk about protecting communal rights, which include the individuals. The situation is not either/or. The ministerial representative specifically said this is a false dichotomy perpetuated repeatedly by Canada to push forward individual rights over collective rights.

Honourable senators may recall from my questions at committee report stage that there may be problems with amendments to the bill that include the principle that the collective interests of First Nations can now be ruled upon by a judge. I do not think that is appropriate. That principle will further erode the section 35 constitutional rights of First Nations to govern themselves. Dr. Palmater agrees. I contacted her for her professional legal opinion and she agreed that it was not a good thing to do. She said:

By adding these provisions, we are requiring First Nations to defend the title to their reserve lands over and over again. We are requiring that First Nations appear in courtrooms to defend their treaty rights and constitutional rights at their expense. There are no other constitutional rights that must be defended over and over again but those of First Nations. Canada has already stated that section 35 protects the inherent right of self-government. Bill S-4 does not protect any of those rights but, instead, belittles them and reduces them to mere consideration for judges who must decide how to dispose of reserve property.

Honourable senators, as I said before, this bill is unconstitutional; it goes against section 35 of the Constitution.

Bill S-4 ought to be defeated because the evidence given to the Human Rights Committee from the witnesses overwhelmingly showed that, first, the Government of Canada did not fulfill its duty to consult and accommodate First Nations. Even the minister's representative stated that in her report, namely, that she did not fulfil the duty to consult and accommodate.

Second, the imposition of federal MRP legislation on First Nations is unconstitutional. It violates section 35 of the Constitution Act. Virtually all the chiefs who appeared as witnesses mentioned this point specifically. I know I am repeating myself, but I am doing it deliberately so that honourable senators get the point.

Third, the implementation of Bill S-4 contravenes the sections of the Indian Act that guarantee the inalienability of lands for Indians.

Fourth, the enactment of Bill S-4 may help some First Nations women and men to achieve a fair settlement upon divorce, including those leaving abusive relationships.

The Hon. the Speaker: Order! I must remind honourable senators to respect the chamber as a chamber of debate and not a chamber for side conferences.

Some Hon. Senators: Hear, hear.

Senator Dyck: Thank you, Your Honour.

The enactment of Bill S-4 may help some First Nations women and men to achieve a fair settlement upon divorce, including those leaving abusive relationships, but, with poverty being so prevalent among First Nations people, they will not be able to afford a lawyer anyway. We are putting middle-class white-society values upon First Nations reserves, many of which live below the poverty line and some of the witnesses said that, on their reserves, half are on welfare.

Fifth, other options are available. We talk about a legislative gap, but other options are available. I already talked about the First Nations Land Management Act. To say that we leave First Nations women helpless if we do not pass Bill S-4 is dishonest. The false dichotomy articulated by the minister of there being only two options leave Aboriginal women and children helpless or enact Bill S-4 ignores the existing mechanisms that address MRP and the creation of better ways to help First Nation people leave abusive marriages or those that are simply not working out.

Even those First Nation women who have been forced to leave the reserve and who were in abusive relationships did not want legislation. That is what the National Aboriginal Circle Against Family Violence said, and the report was commissioned by INAC. In the report, they said that they want sentencing circles and restorative justice that brings responsibility to the community, not to the courts. In addition, they want actions that respect First Nations sovereignty with little implementation of legislation from the provincial or federal governments, although they recognize that such involvement would be very difficult to avoid.

In terms of this idea of individual rights versus collective rights, I will quote again from Dr. Palmater:

I cannot think of many Aboriginal women who would sacrifice their Aboriginal and treaty rights, the inherent rights of their First Nations to be self-governing, or the reserve and titled land rights of their children and grandchildren for seven generations into the future, for their own immediate needs. That is why you see Aboriginal women willing to forego their immediate right to be registered under Bill C-3 in order to ensure that the Indian Act is amended to protect the future rights of their children and grandchildren.

This bill does not look ahead into the future. It is looking at what is happening now. In the long run, it will have a very negative impact.

When I first found out that First Nations women do not have any legal rights to matrimonial real property on reserves, I, too, was astounded and thought we ought to have the same rights as non-First Nations women who live in the rest of Canada. I thought provincial laws or divisions in matrimonial real property should apply just as they do for personal property. Then I heard from several chiefs and from the witnesses before the Standing Senate Committee on Human Rights that this bill and its two predecessors would erode the integrity of First Nations reserves and that, as First Nations lose the rights to be the sole occupants of reserve lands, they also lose their sovereignty. That is one heck of a huge loss.

While this bill does not impose provincial law, it does impose federal legislation which gives non-First Nations rights to reserve land. That contravenes the Indian Act and by so doing, it creates a more severe problem for the community as a whole.

While an individual First Nation woman or man may benefit from Bill S-4 and get the exclusive right to occupy the matrimonial home, she or he runs the risk that there may not be a reserve for her grandchildren, as the quote from Dr. Palmater stated.

In addition, Dr. Palmater said:

Bill S-4 contains legal remedies that would have been exercised through the courts, knowing that the majority of Aboriginal women on reserve will not be able to access the courts or lawyers needed to assess them. This results in an empty shell of a legislative right of protection.

It looks as though you will protect them but you are not really. It is an empty shell.

The individual rights set out in Bill S-4 are based on the assumptions that the First Nation woman can afford a lawyer; that she can find a family lawyer and we were told they are hard to come by these days that she lives near to a family lawyer and not up North, where there are no courts or lawyers; and that, with respect to the division of assets, that her home is not owned by the band. In many cases and in Saskatchewan, all of the homes are owned by the band.

In many cases, all of those assumptions are false. If all of those assumptions are correct, then she may get a fair settlement. However, this fair settlement can also be secured in other ways that do not put the community land's that is the reserve land integrity at risk.

There are other options. First, if she is in an abusive relationship, she can call the RCMP and have her husband removed from the reserve. Several witnesses told us that. Second, her band may have some alternative dispute mechanisms or mediation services that can help her during the divorce. We had a couple of examples of that, as well. Third, if she does have access to federal compensation orders, the Assembly of First Nations can tell her how to access that. The report from the AFN says that is true. Therefore, if they happen to be well off enough off to own a house, she may not get the house but she will get the money.

Fourth, her band may have its own matrimony real property policies, either through traditional customs we heard about some of those self-government agreements, or First Nation Land Management Agreements. We heard witnesses tell us about those kinds of things that operate traditionally or through the First Nations Land Management Agreement.

Finally, after June 2011, if she feels she has been discriminated against because of her gender, she can lodge a human rights complaint against the band through Bill C-21, which we passed here two years ago.

There are alternatives; we are not leaving people completely and totally helpless.

Honourable senators, we ought to defeat Bill S-4. Legitimate First Nation organizations and chiefs, male and female, are opposed to Bill S-4 for good reasons. It is unconstitutional, threatens the inalienability of reserve lands and is an empty shell that promises to help First Nations women and children but it is simply a promise. Bill S-4 ignores existing remedies that help resolve matrimonial real property disputes, particularly the First Nations Land Management Act.

I will give honourable senators a couple of examples of what two of the witnesses said with regard to what goes on if we do not have Bill S-4, which are the kinds of things that happen now. We heard from Chief Lawrence Paul who said:

The Criminal Code overrides the Indian Act. We have RCMP detachments under First Nations. If family violence occurs, the RCMP is called. If no one will open the door, the door is kicked down. They listen to the parties and cart one party off to jail. A court order will be put into effect, and the male or female may be made to stay away from the residence for a period of time.

The Criminal Code protects everyone, regardless of race, sex or colour. Women on my First Nation are protected. It boils down to one thing: The land and the Constitution. It will end up in court cases.

Chief Marie-Anne Day Walker-Pelletier, from the Federation of Saskatchewan Indian Nations, said:

If there was violence taking place between a husband and wife in my community, the husband would be removed. We have our own policing on the four reserves. The women and children would stay because usually the kids are in school. Once the husband has left, any charges are dealt with.

In my community, I have an unfunded wellness team that deals with families. It has well trained members who work with women, children, men, young adults and youth.

A family is a family and we do not want to create division. Children want their parents. When the husband returns to the community, we have mediation and a wellness team formulates plans.

They have mechanisms in place to deal with abusive situations and to deal with what happens to the women and children.

To conclude, honourable senators, I will repeat what I said at the beginning: Bill S-4 is a dangerous bill. It contains the seeds of destruction of two fundamental rights: One, the inherent right to self-government and, two, the inalienability of reserve lands. I urge all honourable senators to defeat Bill S-4.

The Hon. the Speaker: Do any honourable senators wish to ask a question?

Hon. Patrick Brazeau: Will the honourable senator take a question?

Senator Dyck: Yes

Senator Brazeau: Senator Dyck, I thank you for that speech. On this special day, National Aboriginal Day, I have to say I am quite surprised to hear a little bit of what I heard today. However, in any event, it is true we had chiefs who came to committee and basically opposed the bill.

Yet let us consider that they are the same chiefs who have also rejected this matrimonial real property process regime. They rejected Bill C-21, to provide human rights for First Nations peoples on reserve.

They also rejected any attempt at reforming or bringing amendments to the Indian Act that would bring about more accountability and transparency. The honourable senator knows as well as I do that it is difficult to have individuals in particular, Aboriginal women who have been affected by a lack of matrimonial property regime and the shame they may have felt, the abuses, the hurt, the pain and the sorrow to come before cameras and parliamentarians to tell their story and be re-victimized.

The same chiefs talked about the inherent right to self-government and how this bill would oppose or go against that. However, this piece of legislation, if passed, would offer the opportunity to every First Nations community across Canada to develop their own MRP regime. The honourable senator said that this piece of legislation is unconstitutional. How is it unconstitutional when, first, it is enabling and, second, it gives the opportunity to every First Nations community to develop its own matrimonial property regime?

Finally, we talk about consultation. We have been consulting on this since 2006. How long do we have to consult and talk about more money until we offer Aboriginal women equality rights in this country?

Senator Dyck: I am surprised by the Honourable Senator Brazeau. The women of the National Aboriginal Circle Against Family Violence, who were abused, said they do not want this kind of legislation. They want to go back to their communities. It is about family and community. We are not pitting one person against another, as goes on in the courts during divorce settlement.

Why would we need this? We do not need this. If we put this in, there are no resources attached for the First Nations to develop their own MRP. There are resources attached to developing some kind of centre of excellence and we do not need that. We have wise people; we have our elders. If the resources were in that bill, they could do it; but without resources, how will they be able to do it? Where will they get the money to hire the lawyers? That is why they are opposed to it. It is an empty shell. There is no money to develop it.

First Nations land management seemed like a good option. There was money there, but now there are 60 First Nations lining up to get them and they do not have the resources and now, apparently, that act is dead, so that option is closed.

The honourable senator asks why the bill is unconstitutional. Obviously it is unconstitutional because First Nations have the right to self-government. One does not walk in and say, "This law shall apply if you have your own government." How would we like it if the Germans came over and said, "Canada, we want you to enact this law"? It is the same bloody thing.

Senator Brazeau: I have a supplementary question. Senator Dyck mentioned there are no resources or money. It is always a question of money. She was in committee, as well as I was, and the Assembly of First Nations and the Native Women's Association of Canada both received $2.7 million from the federal government. Aboriginal leaders always say that they are in the best position to consult with their own people, yet, when a question was asked of one of those chiefs if they had been consulted by the AFN, the response was no. Where did the money go?

The second part of my question is this. Senator Dyck talked about the president of the Native Women's Association of Canada rejecting this bill. I think she was quoting the former president. However, the new president, the day after she appeared before committee, was interviewed on APTN. When asked about the bill, she responded that they are willing to go with the bill the way it is, as long as the government is willing to put in some non-legislative measures in terms of dealing with the lack of housing and adequate access to justice.

Senator Dyck: Senator Brazeau talks about the money that was given to INAC and NWAC, the millions of dollars. So what? That was given for the consultation. They got the consultation, and the minister totally ignored it. So, who is to blame here? The money was laid out, but the whole consultation was totally flawed in the first place. There were three options. What kind of consultation is that? They could take provincial law; provincial law plus something else the incorporation of their tradition; or go with this, the federal law. There was no option. There was no questioning.

"What do you want?" would be the question to ask. That is consultation. You ask what I want, I tell you, and then you accommodate it. One may not get everything, but some kind of compromise is made. That did not happen, and if the minister has misspent his money, then that is the minister's own tough luck. However, if they want to set this up, along with a process that works, then assign some money to it. The First Nations Land Management Act works. Why do they not fund that?

With respect to the Quebec Native Women, they may have said that because the situation in Quebec is different. The government is taking a one-size-fits-all approach; however, it does not fit all of Canada. It is a bad bill, period.