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.
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
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
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
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
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
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
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
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
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
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
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.)