Hon. Lillian Eva Dyck: Honourable senators, I rise
today to speak to Bill S-2, An Act respecting family homes
situated on First Nations reserves and matrimonial interests
or rights in or to structures and lands situated on those
reserves. I would like to start off my remarks by stating
that I thank the Honourable Senator Jaffer for her excellent
speech and that I agree with her in principle.
matrimonial property is an important issue that affects the
everyday lives of First Nation Canadians living on reserves,
and I agree that the intent of Bill S-2 is good. This is not
the first time this chamber has seen the bill, and while it
has been changed in some significant ways, there still
exists a substantive problem in that there is a distinct
possibility that non-First Nation people may claim ownership
of reserve land, though under section 91(24) of the Indian
Act, reserve lands are supposed to be lands set aside only
for Indians. In other words, the collective rights of a
First Nation band to its reserve lands may be compromised by
What really puzzles me is that the solution to this
problem is known, and yet it has not been incorporated into
the bill before us. The solution is clearly outlined in the
2007 report on Matrimonial Real Property Issues on Reserves
submitted by the Ministerial Representative, Wendy
Grant-John. However, the report is massive — about three
centimetres thick. Perhaps, given the complexity of the MRP
issues and the focus on protecting vulnerable women and
children on reserves, the way to preserve the collective
rights of a band to the inalienability of reserve land was
somehow lost in the mix.
First, I would like to speak to the reason why we need
this bill. The issue that is really driving the
implementation of proposed MRP legislation on reserves is a
difference of rights between individual First Nation
Canadians on reserves and other Canadians when a marriage or
a common law relationship breaks down and matrimonial
property must be split up. This inequity is often
illustrated by the scenario of a First Nation woman and her
children locked out of their home by an abusive partner. She
is perceived as being helpless and powerless. Without
minimizing her dire situation, it should be pointed out that
she does have some options though, depending on her reserve,
they may or may not be very good ones.
For instance, she can get financial compensation for
matrimonial property so she will not necessarily be without
money. She can also utilize her band's MRP codes, which may
or may not provide an equitable solution. If she lives on a
reserve that has developed MRP codes under self-government
agreements or through the First Nations Land Management Act,
such bylaws are recognized by the federal government and are
presumably fair to her. Finally, since June 2011, when the
exemption of the Indian Act from the Canadian Human Rights
Act ended, she can file a human rights complaint if she
finds that she has been discriminated against.
Honourable senators, the First Nation woman in this
scenario does have several options. Nonetheless, apparently
in most instances, the options available to a First Nation
woman living on reserve are not satisfactory and, more
importantly, she does not have the option available to her
had she and her family lived off reserve, and that is to
have a court order ordering her exclusive occupation of the
family home. Bill S-2 fills that gap in her available
options. It gives First Nations women and men more choices
when their conjugal relationships break down and matrimonial
properties are divided. I support the aspects of the bill
that attempt to remedy the unequal legal remedies that
Indians on reserves have compared to other Canadians.
However, Bill S-2 goes too far by offering an open-ended
interest in structures on reserve lands for non-First Nation
individuals through the Exclusive Occupation Order provision
of clause 20. This provision compromises the collective
rights of the First Nation community to their reserve land.
Under clause 20 of the bill, the court of jurisdiction can
grant exclusive occupation of the home to a spouse or common
law partner, whether the partner is an Indian or band
member. It would be up to the court to determine the
duration of the occupation. From the witnesses who testified
during the Senate study of Bill S-4, that time period may be
upwards of 10 years. Clause 25 of Bill S-2 makes it clear
that exclusive occupation of the family home includes
exclusive occupation of the portion of the land that is
contiguous to the family home.
Honourable senators, this would set a dangerous precedent
of non-Indians having an indefinite interest in Indian land.
Furthermore, the authority is granted to the court rather
than to the First Nation itself. In other words, it takes
away the right of First Nations to govern their own land, a
critical feature of Aboriginal or treaty rights, and this
may well constitute an infringement of section 35 rights.
During the Senate's study of Bill S-4, the Canadian Bar
Association, the Atlantic Policy Congress of First Nations
Chiefs, the Association of Iroquois and Allied Indians and
Dr. Pamela Palmater all addressed this serious problem. The
Canadian Bar Association stated:
We believe omitting any time limit on duration is a
particular concern. It would create a life interest in
the home (a beneficial interest, if not a legal
interest) for non-Band members and non-First Nations.
The government argues that because there is no change in
the legal interest of home and its contiguous land, there is
no conflict with the exclusive occupation provisions and
section 89 of the Indian Act, enacted for the very purposes
of protecting real property on reserve.
Section 89(1) of the Indian Act states:
Subject to this Act, the real and personal property
of an Indian or a band situated on a reserve is not
subject to charge, pledge, mortgage, attachment, levy,
seizure, distress or execution in favour or at the
instance of any person other than an Indian or a band.
As noted by many of the witnesses during the study of
Bill S-4, it would seem that section 20 of Bill S-2 creates
an exemption to section 89 of the Indian Act without any
reconciliation. This grave inconsistency is made even more
apparent when one looks at other sections of the Indian Act
that deal with occupation of reserve lands by non-Indians.
Section 28(2) of the Indian Act permits non-Indians to
occupy reserve land, but the consent of the First Nation is
required for any period over one year. Clearly, section 20
of Bill S-2 violates these provisions of the Indian Act.
I suggest that during committee study this issue be
examined and that the committee suggest a simple amendment
to limit the duration of occupation under the Exclusive
Occupation Order to one year, or a requirement to get the
consent of the First Nation when a non-First Nation member
or spouse or partner is involved.
Honourable senators, a similar recommendation was made by
Wendy Grant-John. On page 63 of her report, she recommends
temporary exclusive possession of the matrimonial home
because they ". . . present few if any difficulties in terms
of the scope of potential infringement on collective
interests precisely because of their temporary nature."
I will repeat this important aspect: She recommended
temporary exclusive possession orders.
Honourable senators, the Constitution of 1982 and the
Charter are supposed to protect Aboriginal treaty rights.
Bill S-2 is a significant infringement of those rights in
two ways. First, it allows non-Indians to obtain a
beneficial land interest on reserve land. The Indian Act
states that reserve lands are for the use of Indians only.
Second, the band or First Nation owns the reserve
collectively, and any change to this fundamental
characteristic of First Nation governance ought to be under
the control of First Nations through their inherent right to
self-government in accordance with the UN Declaration on the
Rights of Indigenous Peoples. For these reasons, I believe
Bill S-2 infringes upon the Indian Act and the Constitution.
While it may be argued that Bill S-2 is provisional in
nature and thus in effect only until a First Nation develops
its own MRP laws, for some First Nations that may well be
many years. It is likely that many First Nations do not have
the expertise or resources to develop their own MRP laws in
the near future, so Bill S-2 may be impinging upon their
rights for many years. Why should they risk losing their
rights to parts of their reserve lands, when the way to
prevent this is known and straightforward?
I urge the committee studying Bill S-2 to incorporate the
recommendations made by Wendy Grant-John. In her report she
. . . the debate has been framed by an assumption
that First Nation people must necessarily choose between
their collective rights in the land or to govern
themselves on the one hand and the enjoyment of
individual human rights to equality and dignity on the
other. It is time for a new direction and new policies
that do not insist on such a false choice being
presented to First Nation people over and over again.
Such a false choice is before us now with this bill. Ms.
Grant-John states in her report that she believes ". . . the
recommendations made in this report reflect a balance
between collective and individual rights that respects
How did she achieve that? She recommended the inclusion
of two provisions in an MRP bill. One, to recognize the
paramountcy of First Nation law and, two, another to clarify
the inalienability of reserve lands.
First, on page 61, she recommended that, ". . .
provisions relating to the recognition of First Nations'
jurisdiction should be set out in Part I before the interim
federal rules, in order to emphasize the paramountcy and
preference for the operation of First Nations' jurisdiction
in this area." She even went so far as to provide a sample
of this on page 62 of her report.
Second, to make it absolutely clear that Indian reserve
lands continue as lands reserved for Indians, she states: ".
. . there should be a 'for greater certainty provision'
confirming this," and on page 59 she provides an example
using the wording from the First Nations Land Management
Act, which states:
Title to First Nation Land
For greater certainty.
a) Collective title to First Nation land is not
affected by this act;
b) First Nation land continues to be set apart
for the use and benefit of the First Nation for
which it was set apart; and.
c) First Nation land continues to be land
reserved for the Indians within the meaning of class
24 of section 91 of the Constitution Act, 1867.
This "for greater certainty" clause is a stronger "for
greater certainty" clause than is currently in Bill S-2.
Specific reference to the collective interests of the First
Nation community is necessary to address the potential
claims of non-First Nation spouses to ownership of reserve
lands after issue of an exclusive possession order in their
Honourable senators, the minister's representative, Wendy
Grant-John, clearly provided the solutions to recognizing
the rights of First Nations to govern themselves and to the
continuation of the inalienability of reserve lands.
Incorporating her suggested provisions into Bill S-2 will
prove to Canadians that we can protect the rights of
individual members of a First Nation and, at the same time,
in the same bill, we can protect the collective rights of
the First Nation as a whole to self-governance and to their
Honourable senators, I urge you to push for amending Bill
S-2 so that it incorporates the suggested amendments and the
recommendations made by the ministerial representative on
MRP noted above. By including these changes we will achieve
the laudable goal of protecting vulnerable First Nation and
non-First Nation people on reserve from unfair practices
when their conjugal relationship ends; offer equitable
settlement of matrimonial properties to the individuals;
and, equally important, we will not infringe upon the
collective rights of the First Nation community with respect
to jurisdiction of their reserve lands that are set aside
specifically for their use and not for others.