Speech on First Nations Matrimonial Property Rights
November 22nd, 2012 - 4:15pm
Mr. Speaker, I sincerely appreciated the speech from the member for Manicouagan and his direct experience with the first nations' life and living conditions. It adds a lot to this debate.
I also want to take time to acknowledge our critic for Indian and northern affairs, the member for Nanaimo—Cowichan, who has done excellent work in the past and also adds a lot to this debate and this discussion.
Today we are talking here about Bill S-2, an act concerning matrimonial real property on first nations reserve lands. It makes changes to the Indian Act to allow for provincial family law to apply on reserves in the event of a matrimonial breakdown or the death of a spouse or common-law partner.
There is a legal vacuum concerning real property on reserves due to the jurisdictional divide, wherein provinces and territories have jurisdiction over property and civil rights within the provinces, and the federal government has jurisdiction to legislate “Indians, and Lands reserved for the Indians” under section 91.24.
The Indian Act does not provide for a division of MRP upon marriage breakdown, and first nations jurisdiction is not explicitly recognized by Canada. This has led to major legal cases, such as Derrickson v. Derrickson, 1986, and Paul v. Paul, also 1986, which were dismissed by provincial courts because the provincial laws cannot apply to lands on an Indian reserve. Thus, there is this legislative gap.
Bill S-2 is the fourth iteration of similar legislation that the Conservatives have tried to pass since 2008, and the NDP has opposed every time it has come forward for debate.
There have been five parliamentary studies that have been conducted on MRP: A Hard Bed to Lie In by the Senate in 2003; Still Waiting by the Senate in 2004; Arm-in-Arm by the aboriginal affairs and northern development committee in 2005; the report by the status of women committee in 2006; and a ministerial report by Wendy Grant-John in 2006.
I just want to mention the latter, which stated that no consensus has been found regarding legislation that could apply to MRP. Among other things, it recommended that concurrent jurisdictional models be used where first nation law was paramount and that the government needed to identify the real costs of implementing provincial legislation on reserves.
All previous bills, and now Bill S-2, neglect almost all of the recommendations made by all of the aforementioned reports.
The Conservatives are trying to say that the recommendations from the 2006 ministerial report by Wendy Grant-John are being implemented, but that is absolutely not the case.
There is no question that this issue needs to be addressed. However, the Conservatives are trying to pass a law that appears to be in favour of first nations women's rights while ignoring the voices of first nations women themselves. They are fast-tracking legislation without addressing all the relevant non-legislative problems that first nations women and families have identified.
The Conservatives are not interested in a fulsome discussion of the bill or any first nations issues. They want to hastily enact a bad law just so they can say they have done something.
The problem requires a comprehensive response led by first nations. This approach must address family support services; more on-reserve housing and shelters; police support services; building first nations capacity to resolve disputes; solutions to land management issues; and resolutions of matters relating to citizenship, residency and Indian status.
Bill S-2 is an insincere and overly simplistic attempt to rectify a complex problem that was brought about by the Indian Act.
The Assembly of First Nations facilitated a dialogue, which identified three broad principles that are key to addressing matrimonial rights and interests on reserve. I will identify those: recognition of first nation jurisdiction; access to justice, dispute resolution and remedies; and finally, addressing underlying issues such as access to housing and economic security.
Based on these principles, I would like to take a closer look at two important themes that underpin the position of the New Democrats on Bill S-2: the absence of meaningful consultation with first nations; and the need to address the non-legislative problems surrounding the issue of matrimonial property rights.
I will turn to what others had to say on this in elaborating on meaningful consultation and non-legislative problems.
Ellen Gabriel, the former president of the Quebec Native Women's Association and AFN grand chief candidate, said:
It is reprehensible that the Government of Canada is so eager to pass legislation [that seriously impacts the collective human rights of Indigenous peoples] without adequate consultations which requires the free, prior and informed consent of Aboriginal peoples.
This is a growing trend of the Conservatives thrusting legislation upon Canadians without first consulting.
For example, the fisheries and oceans committee studied several clauses of Bill C-45, including a clause relating to the definition of what constituted an aboriginal fishery. There was an absence of consultation with first nations. It was only a one-way dialogue.
I will offer another quote from Stuart Wuttke from the Assembly of First Nations. He said at the fisheries and oceans committee:
—we feel if there's consultation and accommodation with respect to first nation interests, there may be a balanced approach. We would definitely prefer that, and we would recommend that consultation and accommodation take place in order to alleviate any potential problems that may exist in the future.
Consultation allows a legislative to find a balanced approach that serves the best interests of all stakeholders and to alleviate any potential problems that may exist in the future. For example, if the government had properly consulted on Bill C-38, it probably would not have found itself making so many amendments now in bill C-45.
According to the UN Declaration on the Rights of Indigenous Peoples, to which Canada is a signatory, consultation requires consent. While Canada has conducted limited consultation, no consent was given by rights holders. Therefore, if we endorse Bill S-2, we will be in violation of article 32 of the UNDRIP, which ensures free, prior and informed consent of any matter relating to the lands or welfare of the rights holders.
I will further add what other first nation women are saying. The Native Women's Association of Canada says:
NWAC is being told by its members that the MRP legislation is too prescriptive and does not adequately support Indigenous legal systems. As well, no financial resources will be allotted to support First Nations Governments to actually implement the legislation, if it were to get passed.
The NWAC testified at the Senate hearings on Bill S-2 and said the following:
—our women and population and constituents have repeatedly told us 12 months is not a sufficient transition period if this bill were to go ahead. First Nations are dealing with governments that are already overloaded with many socio-economic issues.
We are looking at a longer-term plan: two years, five years and ten years. Those are the types of plans that need to be developed in cooperation with First Nations, not government designing it and having patchwork input from First Nations. You will have a holey quilt, if you will. Too many resources will also be spent, and it will not be a satisfactory result for anyone.
We would rather take the time, do it right and stop pushing ahead in a rush to have a quick resolution that might not be a good one for anyone.
The image of a holey quilt is a good one and identifies the need for co-operation with first nations that the government should have.
About Bill S-4, which was a previous incarnation of Bill S-2, Pam Palmater, a professor of aboriginal law at Ryerson, said:
The Minister also said that Aboriginal women are in need of “immediate protection”. If the Minister actually listened to the voices of Aboriginal women, he would have heard that Aboriginal women do not want Bill S-4 as it is currently drafted. He would also have heard that what they do want is gender equality addressed in all of Canada's legislative initiatives....