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
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withdrawn and amended.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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
"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
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.