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
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
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
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
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
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
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
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
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
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
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
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.