Debates of the Senate  
1st Session, 41st Parliament,Volume 148, Issue 16.
  Tuesday, October 4, 2011
Orders of the Day

  Family Homes on Reserves and Matrimonial Interests or Rights Bill

Hon. Nancy Ruth moved second reading of Bill S-2, 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.

She said: Honourable senators, I support Bill S-2, the family homes on reserves and matrimonial interests or rights act. The legislation offers a balanced solution to a long-standing inequity that affects people living on reserves, particularly women and children. Bill S-2 builds on previous legislative efforts to facilitate the resolution of this issue, including the development of First Nation laws in this area.

Canadians who live on First Nation reserves do not have the same legal protections as those of us who live off reserves. This situation was created more than 25 years ago, in 1986, when the Supreme Court of Canada rendered decisions in two cases: Paul v. Paul and Derrickson v. Derrickson. The cases involved the rights and interests of couples who lived on reserves and whose relationships fell apart.

The Supreme Court ruled that provincial or territorial family laws related to matrimonial real property, interests and rights did not apply on reserves. Given that no relevant federal law existed, individuals living on reserves had no legal protection.

The legislative gap applies to a wide range of situations. For instance, an abusive husband can evict his wife and their children from the family home. Not a court in the country has the power to intervene.

Issues of jurisdiction contribute to the problem. Our Constitution grants provinces and territories jurisdiction over family law, while the federal government has jurisdiction over reserves. This jurisdictional divide is at the core of the Supreme Court's rulings. Provincial and territorial laws governing matrimonial real property interests and rights simply do not apply on reserves. Since no relevant federal laws exist, residents of all but a handful of First Nation communities have no legal recourse to the family home in the event of a family breakdown or on death of a spouse.

Sixteen First Nations have established their own laws in this area, and these First Nations took advantage of legislation passed in 1999. It was called the First Nations Land Management Act. This act enables, at this point, 30 First Nations to enact laws related to their reserve lands.

In other cases, however, First Nations have enacted similar laws following the completion of self-government agreements. They are the exception. The vast majority of our 600 First Nations have not enacted laws in this area, and hundreds of thousands of individuals remain in legal limbo when it comes to matrimonial real property interests and rights on reserves.

Honourable senators, this gap has had, and continues to have, real and often devastating consequences for individuals and families living on reserves.

A common example is this: After years of abuse, a woman flees her husband and takes refuge in an emergency shelter along with their children. Although safe, the shelter is miles away from her community and the support of her friends and other family members, elders and schoolteachers. The wife and children are keen to move back, but no court has the authority to issue orders for emergency protection or exclusive occupation of the family home. The woman faces a choice: return to the community and risk further abuse, or start all over again somewhere else, with little more than the clothes on her back and removed from her support system.

Consider another example: After more than 25 years of marriage, a husband dies. He and his wife had been pillars of their community, serving as foster parents to more than a hundred children over the years. However, the wife was not named on the Certificate of Possession and the band council orders her out. With no legal protection for her rights, she can be evicted immediately from her home and her community and be forced to find a new place to live.

A man and a woman in a common-law relationship separate after living together for six years in a house on the reserve. During their time together, the man paid for thousands of dollars worth of home renovations. While both are members of the First Nation, the woman is the only one named on the Certificate of Possession and decides to stay in the home. The man agrees to move out, but he wants to recoup his investment in the renovations. He cannot turn to the justice system, because no court has the authority to order an effective remedy, such as a transfer or partition. The man's only recourse is to try to convince the woman to pay him some of the money.

Bill S-2 would address all these scenarios. Bill S-2 proposes to protect the matrimonial real property rights and interests of all individuals who live on reserves. The bill would give First Nations the authority to create their own laws in this area, laws informed by their own cultures and traditions. The bill also proposes a provisional federal regime that would protect people on reserves unless or until First Nations develop and ratify their own laws.

To provide time for First Nations to develop laws, the federal regime would not come into effect until 12 months after Bill S-2 comes into force.

During the 25 years since the legislative gap was first identified, a long list of authoritative and independent groups both here in Canada and abroad have studied the matter.

Many calls for a solution have also come from within Canada. Back in 1988, for instance, an inquiry into the justice system's treatment of Aboriginal peoples cited the legislative gap. The inquiry's final report recommended that ''The Indian Act be amended to provide for the equal division of property upon marriage breakdown.''

Parliament has also long recognized the need for a legislative solution. Standing committees, both here and in the other place, examined what such a solution might look like, what it would contain and how it might be implemented. In 2003, the Standing Senate Committee on Human Rights, chaired by Senator Raynell Andreychuk, published a report entitled A Hard Bed to Lie In: Matrimonial Real Property on Reserve, which made a number of valuable recommendations, including recognition of the need for culturally sensitive laws to be developed.

The House Standing Committee on Aboriginal Affairs and Northern Development also investigated the issue and heard from more than 30 witnesses. The legislation before us today has its roots in this committee's final report, Walking Arm-In-Arm to Resolve the Issue of On-reserve Matrimonial Real Property, tabled in 2005. The report featured two principal recommendations. The first reads, in part:

That, consulting with the Native Women's Association of Canada and the Assembly of First Nations to the extent possible, considering the urgency of the situation, the government immediately draft interim stand-alone legislation or amendments to the Indian Act to make provincial/territorial matrimonial property laws apply to real property on reserve lands.

Honourable senators, the Government of Canada followed this recommendation. Shortly after the publication of the committee's final report, officials with Aboriginal Affairs and Northern Development Canada initiated a planning process in partnership with the two national Aboriginal organizations named in the recommendation. During the planning process, the parties agreed to collectively implement the second principal recommendation of the standing committee's report, which reads as follows:

That, in broad consultation with First Nations organizations and communities, the government collaborate with those organizations and communities to develop substantive federal legislation on matrimonial real property for those First Nations that have not created their own laws on the subject matter within the time frame set out in the interim legislation. This legislation should cease to apply to First Nations that subsequently develop their own matrimonial real property regimes.

Honourable senators, the Government of Canada heeded this recommendation and allotted $8 million plus to Aboriginal organizations and First Nations communities to consult their members and stakeholders. To help focus the consultation process, the Government of Canada prepared a discussion paper outlining the issues and laying out three potential legislative solutions. To coordinate and report on the consultations and to forge a consensus on a potential legislative solution, a ministerial representative was appointed. That representative, as we all know, was Wendy Grant-John, one of the most eminent First Nations women in Canada. That consultation was launched on Parliament Hill, just steps from here, by then Minister Prentice and National Chief Fontaine.

During 2006 and 2007, more than 100 consultation sessions were held in communities across Canada. Each session was led by one or more of the following groups: the Native Women's Association of Canada, the Assembly of First Nations and Aboriginal Affairs and Northern Development Canada. First Nations representatives comprised the vast majority of session participants. Along with this input, dozens of groups provided written submissions.

During consultations, it became clear that there was little support for one of the potential solutions: incorporating relevant provincial and territorial laws into the Indian Act. As a result, this option was abandoned.

Once the consultations were complete, the ministerial representative held a series of consensus-building sessions with representatives of key stakeholder groups, including the Native Women's Association and the AFN. The goal of these sessions was to forge a consensus on a potential legislative solution. A consensus was not achieved on the precise contents of the legislation, but all parties did agree on several key points. For instance, they agreed that time was of the essence and that the legislation must include a mechanism for the First Nations to enact their own laws in this area.

Legislation was introduced in 2008, 2009 and 2010, and debates and a committee review led to a series of amendments. The bill was passed as amended by the Senate and introduced into the other place, where the bill died for the third time due to the recent election.

Honourable senators, this government remains committed to providing a legislative solution to address the issue of matrimonial real property. To further support First Nations in developing their own laws in this area, this government has opted to make further improvements to the bill. These improvements address specific concerns expressed by many groups during previous rounds of parliamentary examinations.

The first improvement is the removal of the verification process, including the role of the verification officer proposed in the old bill. Under Bill S-2, a First Nation must inform all on- and off-reserve eligible voters of the proposed law and the date and time of the vote, but no verification officer is needed to oversee the voting process.

The second improvement, a significant one, changes the ratification threshold for the law developed by First Nations. Under Bill S-2, the ratification threshold has been changed to a single majority with a minimum level of participation. That means a First Nation must ensure that at least 25 per cent of all eligible voters participate in the vote on its proposed legislation and that a single majority of the voters a majority of those participating in the vote vote to support it. This change further supports First Nations in enacting their own matrimonial real property laws. I have to say, though, that I am sorry that of the 25 per cent of voters, 50 per cent of them are not required to be women.

The third improvement is the addition of a 12-month delay in the implementation of a federal regime. This provides First Nations with time to design and ratify matrimonial real property interests and rights laws before the federal provisional rules will apply.

Honourable senators, the existing legislative gap affects many of Canada's most impoverished and vulnerable citizens. As long as the current gap exists, one group of Canadians will continue to be denied the protection the law affords to other groups of Canadians. An important aspect of the justice system that is central to our democracy will remain inaccessible to them. All Canadians are diminished to some degree when an inequity like this is not addressed.

Honourable senators, it is our duty to properly consider both the broad, collective interests of First Nations and the interests and rights of individual Canadians, especially those who are vulnerable. When these interests do not perfectly coincide, we must try to achieve a reasonable compromise. In doing so, we must ensure that the most vulnerable people in our society have the legal rights and protections that they need. I believe Bill S-2 effectively balances the protection of individual rights with the recognition of First Nations' collective interests.

The legislation now before us is the result of an extensive process of research, consultation and engagement. Bill S-2 has been informed by years of study and incorporates dozens of improvements, including suggestions by the national Aboriginal organizations and other stakeholders during the review of the draft bill; legislative amendments introduced when a similar bill was previously before Parliament; and more recent changes to facilitate development of First Nations laws in this area.

A key element of Bill S-2 is the opportunity for First Nations to enact laws based on their unique customs and traditions.

For all these reasons, I ask honourable senators to vote for Bill S-2.

Hon. Lillian Eva Dyck: Would the honourable senator take a question?

Senator Nancy Ruth: Yes.

Senator Dyck: I thank the honourable senator for her presentation, which was clear and gave interesting scenarios.

The question I have for the honourable senator is the following: This summer, Bill C-21 dealing with the removal of section 67 from Canadian Human Rights Act, which essentially said that the Indian Act trumped the Canadian Human Rights Act, took effect. How does that change affect this bill?

Since that act is now in force, it would seem to me that provincial laws with regard to division of matrimonial assets, anything like emergency protection orders, exclusive occupation orders and all the kinds of things the honourable senator was talking about that are in this bill would now be subject to provincial and territorial law. It sounds like there no longer is a legislative gap. How does this bill now address that reality?

Senator Nancy Ruth: I will have to get back to Senator Dyck with an answer to that question.

Senator Dyck: The short question, if the honourable senator will respond later, would be: Is this bill even necessary if that act now applies?

(On motion of Senator Tardif, debate adjourned.)