Debates of the Senate  
3rd Session, 40th Parliament,Volume 147, Issue 46.
  Tuesday, July 6, 2010
Family Homes on Reserves and Matrimonial Interests or Rights Bill

Third  Reading

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. Gerald J. Comeau (Deputy Leader of the Government): Honourable senators, my speech will be very short. If I have understood correctly, Senator McCoy would like to speak to this bill.

Senator McCoy is at the Finance Committee at this moment and I understand that Senator Brazeau wants to speak on this bill. That will give Senator McCoy a chance to be called over from the committee so that she can also speak on this bill. We will then be able to proceed further with it.

That is the length of my speech on this bill. I think Senator Brazeau wants to speak to it now.

Hon. Patrick Brazeau: Honourable senators, we have before us 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.

It is no big secret that a regime in the case of marital breakdown on reserves has been missing forever. It is equally inconceivable that, in 2010, while every woman has protection in the case of marriage breakdown, First Nations women do not have the same protection. It is about time that we passed this legislation. Let me outline some reasons why.

The organization that represents native women across Canada, the Native Women's Association of Canada, went to the United Nations many times to make presentations calling on Canada to develop a matrimonial real property regime. We now have one before us.

Like any piece of legislation, honourable senators, it is not a perfect piece of legislation. However, this is what it would do: First, in the case of marriage breakdown or separation, it would protect all Aboriginal peoples with respect to their matrimonial real property; second, it would allow for the recognition by the Minister of Indian Affairs of a matrimonial property regime or code currently in place that has been ratified by a First Nations community. A First Nations community might have their code right now, but, because of the Indian Act, it cannot it be recognized by the minister. This would be a step forward in recognizing what many First Nations communities have worked hard at, namely, to develop their own matrimonial real property regime that reflects their traditions, values and customs. That is extremely important.

Among those who seem to oppose this piece of legislation, there is a lot of fear-mongering by people who are saying that non-Aboriginal women, for example in the case of the breakdown of a marriage to an Aboriginal man, would have access to the lands. Honourable senators, this has nothing do with lands; it has to do with matrimonial real property.

The second instance of fear-mongering we hear is that we might have an influx of non-Aboriginal women marrying Aboriginal men. Furthermore, if there is a divorce or a break-up, then non-Aboriginal women would have access to the home. That might happen in certain circumstances, but what about the children of those marriages? What about the children who are First Nations? What about the chiefs, leaders and Aboriginal people who talk about the importance of learning traditions and culture on reserve and going to school on reserve? What about the rights of those children? Even if they have a non-Aboriginal mother, they have a right to be part of that community. That is what this bill would do. It would protect the rights of Aboriginal men but, in particular, it would protect the rights of Aboriginal women and their children.

Honourable senators, we hear a lot of talk about how much money will be given to communities to develop their own codes, but it does not cost a lot of money to do that. Let me be blunt many of the witnesses who appeared before the committee who opposed this piece of legislation are also the consultants who would be doing the work on behalf of the First Nations communities at $500 a day or $1,000 a day. They have a vested interest in ensuring that their nest is feathered as well.

This is not about money, honourable senators. This is about human rights and about equality for First Nations women.

Honourable senators, as I said earlier, how can it be that, in 2010, Aboriginal women do not have this protection? If it were non-Aboriginal women, there would be a huge outcry in this place, in the other place, and all across the country.

Obviously, I am a strong supporter of this proposed legislation. I encourage all honourable senators to vote in favour of it. Think about this, honourable senators. How do you explain it to a First Nations woman who comes home late at night one night, puts her key in the door and finds the locks have been changed? She is stuck out on the streets with her two, three or four children with nowhere to go and with no one to go to, because there are no matrimonial real property regimes on reserves. How do you explain that to an Aboriginal woman?

We talk about the 500-plus missing and murdered Aboriginal women in this country women who have far too often gone missing or have been murdered in urban centres. Imagine how many lives could have been saved if there had been a matrimonial real property regime on reserves so that their rights and interests would have been protected. Let us think about that, honourable senators.

Some Hon. Senators: Hear, hear!

Hon. Joan Fraser: Would the Honourable Senator Brazeau take a question?

Senator Brazeau: Absolutely.

Senator Fraser: I did not have the benefit of attending the committee meetings, but it is my understanding that, as I think Senator Brazeau more or less agreed in his comments, many witnesses who opposed this bill. Who supported it and on what grounds that is, apart from the minister?

Senator Brazeau: As I mentioned several weeks ago, the current president of the Native Women's Association of Canada stated that they supported the piece of legislation as it was currently written. However, they would have liked more assurances in non-legislative terms with respect to addressing the needs of the shortage of housing on reserves, as an example.

I hope that the honourable senator will appreciate the fact that many chiefs appeared before committee. They were similarly opposed to Bill C-21, which provided for the repeal of section 67 of the Canadian Human Rights Act. Both bills are about human rights and protections for Aboriginal women, in particular in cases of discrimination.

I am sure the honourable senator will appreciate that many Aboriginal women have been affected by the lack of a matrimonial real property regime on reserves. The women support the concept but it is difficult for them to come before committee. They do not want to be re-victimized by having to retell their stories of abuse before a parliamentary committee. From my experience and work on information-sharing sessions in the past on this matter and others that there is a wide range of support by Aboriginal women across this country.

Senator Fraser: Honourable senators, I am well aware of the strong, legitimate and pressing desire of many Aboriginal women to have this matter addressed; but the chiefs oppose it. What are we to do? The chiefs are the legitimate democratic representatives of the people who are affected. How are we supposed to say: too bad? Is the honourable senator suggesting that we ignore the wishes of the chiefs?

Senator Brazeau: Honourable senators, certainly, we can listen to what the chiefs have to say. I disagree that they are the democratically elected representatives of the people because of the problems under the Indian Act associated with custom codes whereby First Nations people still do not have the right to vote on reserves because of so-called custom whatever those rules might be. I do not consider it democratic when people are excluded from voting. No, we should not turn a blind eye to the demands of the chiefs. However, parliamentarians on both sides of this place should pay more attention to the grassroots people across this country.

Hon. Sandra Lovelace Nicholas: Honourable senators, the chiefs disagree with this bill because it will cause more hardship for the women and children with an even greater lack of housing. What do you suppose the people will do then?

Senator Brazeau: Honourable senators, I am not sure if there was a question, but I fail to see how a matrimonial real property regime to protect the interests of women and their children in the case of marriage breakdown has anything to do with housing. Now, for the most part, when a marriage breaks down, the women and children are kicked out of the family home. I do not know what happens on your reserve but on mine, many women are kicked out of their family home. They are kicked out not because of a shortage of housing, although it can be, but because there is no regime in place to protect their interests.

Hon. Lillian Eva Dyck: Did the honourable senator read the report of the National Aboriginal Circle Against Family Violence commissioned by Indian and Northern Affairs Canada when this bill came forward several years ago? Those women were abused and thrown out of their homes, and yet they said they did not want legislative reform. They were not afraid to come forward to speak their minds.

Some of these women are relatively fresh out of the relationship and are reluctant to speak but not all are in the sorry state that the honourable senator portrays as typical. Some of these women are incredibly strong. This is not an either/or situation.

What did Pamela Palmater, Chair of the Centre for Study of Indigenous Governance at Ryerson University say about this bill when she appeared before the committee? Did she say we should go ahead with it?

Senator Brazeau: I will begin with the honourable senator's last question. Ms. Palmater is a lawyer and consultant who also works for chiefs. Obviously, she has a vested interest. She also worked for the Congress of Aboriginal Peoples, which I used to head. In my experience with the congress and women's shelters across the country that our provincial affiliates ran, I met with many women who were affected by lack of a matrimonial property regime. I still cannot understand how anyone can justify not passing this piece of legislation because it will allow First Nations communities who have a regime in place, which cannot be recognized by the minister of Indian Affairs and Northern Development, to recognize that regime. What is wrong with that?

If we were talking about non-Aboriginal people, there would be a huge outcry in this country. I am almost ashamed to stand before honourable senators to try to defend something that is so right. There have been consultations on this issue for years and years with Aboriginal women and other stakeholders. Wendy Grant-John was named Ministerial Representative for On-reserve Matrimonial Real Property by former Minister of Indian and Northern Affairs, Jim Prentice. She published her report on this issue. If I am not mistaken, 30 of her 33 recommendations were adopted and reflected in this bill. I do not think that is bad.

Senator Dyck: What did the witnesses say with respect to the problems associated with recognizing the codes they might have in place? Did they not say that they objected to the ministerial authority to recognize the code, which is a paternalistic, colonial way of operating, and that under section 35 of the Constitution, they should be able to enact their own laws? They said that the minister should not be in charge. Was that not what they said?

Senator Brazeau: Honourable senators, that is exactly what they said. Allow me to be blunt: I would like to be alive when we have a good understanding of rights under section 35. Anyone can stand up and say they have the right to this and that but if those rights are not negotiated or recognized by the courts, none of these rights will be recognized. I am about getting the job done and this bill will get it done.