Debates of the Senate (Hansard)

1st Session, 41st Parliament

Volume 148, Issue 23

Wednesday, October 26, 2011

The Honourable Noel A. Kinsella Speaker

Second Reading—Debate Continued

Family Homes on Reserves and Matrimonial Interests or Rights Bill

On the Order:

Resuming debate on the motion of the Honourable Senator Nancy Ruth, seconded by the Honourable Senator Champagne, P.C., for the 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.

Hon. Mobina S. B. Jaffer: Honourable senators, I rise before you today to speak on 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.

For me, the Senate of Canada is a trustee of two main issues: Canadian national interests and protection of minority rights in Canada and abroad.

Honourable senators, the bill that is before us today is a reflection of the work we do in the Senate. It was in the Senate Human Rights Committee that the issue of matrimonial real property rights on reserves was initially addressed and it is in the Senate that the issue of human rights on reserves should be championed. I believe it is our responsibility to ensure that minority groups have the same rights and protections as the rest of us. In a diverse Canada, basic human rights should be the same for all.

In 2003, I was a member of the Standing Senate Committee on Human Rights which studied property rights for women on reserves. In a report entitled A Hard Bed to Lie In, the committee addressed the need for legislation to be drafted to help ensure that Aboriginal women enjoy the same rights as the rest of Canadian women when a marriage or common-law relationship breaks down. In 2004, the committee released a subsequent report entitled On Reserve Matrimonial Real Property: Still Waiting, which further emphasized the need for legislation to be drafted and implemented.

Presently, when a marriage breaks up, people living on reserves do not enjoy the same rights that are enjoyed by the rest of us. The people on the reserve are left without protection because the Indian Act is silent on the division of matrimonial property. Unfortunately, there is no federal legislation to fill the gap.

In our legal system, matrimonial property is normally owned by one or both spouses and used for a family purpose. What is matrimonial property? Matrimonial property can be divided into two types of property. There is the matrimonial real property, which includes land and anything permanently attached to the land, such as a home for the family. Under the Constitution Act, 1982, provincial and territorial governments have jurisdiction over property. As a result, the provinces and territories have laws protecting spouses or common-law spouses on separation or divorce.

There is a legislative gap. The courts have no authority to protect the matrimonial real property interests of spouses or common-law partners on reserves.

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As I have already stated, the land on reserves falls under the exclusive jurisdiction of the federal government within the meaning of section 91(24) of the Constitution Act, 1867.

Under section 88 of the Indian Act, subject to treaties concluded by First Nations with the Crown and to the federal government laws, First Nations people are bound by all provincial laws of general application except to the extent that such laws are not consistent with the Indian Act.

The provinces are responsible for family law matters, including matrimonial property under section 92(13) of the Constitution Act, 1867. At first glance, there would be an assumption that provincial or territorial legislation would also govern property rights upon a breakup of marriage on reserves. However, because of the legal status of Indian reserves, there needs to be a distinction between real and personal property.

There is no law in place for division of matrimonial real property on reserves, and, therefore, there is a need for legislation so all Canadians can enjoy the same rights. Bill S-2 is trying to right a wrong and be just for all Canadians.

The provincial law applies to personal property in the event of a breakup of marriage on the reserve; that is to say, assets such as cars, furniture and personal effects. The Supreme Court of Canada in Derrickson v. Derrickson held that the possession of land on reserves and the transfer of a right of possession are governed by the provisions set out in the Indian Act. The Supreme Court also held that the courts cannot rely on provincial law to order the division of real property on reserve.

In Paul v. Paul, a 1986 case that was handed down the same year as the Derrickson case, the Supreme Court of Canada held that the same principles apply to an application under provincial law for interim occupancy of the family home.

Honourable senators, first, there is a gap for people living on reserves, and second, there is the issue of ownership of land and collective rights on reserves. Most Canadians who own land have full fee simple ownership of the land itself. Reserve land is not “owned” in the usual meaning of the word by the people of the First Nations. Underlying title is held by the Crown. Section 18 of the Indian Act states the following:

. . . reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart . . .

Although First Nations people can obtain possession of land on reserves on which they are able to erect buildings and the buildings will belong to them, in most cases, they cannot have full fee simple ownership of the land itself.

In 1986, as I have already stated, the Supreme Court of Canada in Derrickson v. Derrickson and then in Paul v. Paul held that if a marriage breaks down on a reserve, the courts cannot apply provincial or territorial jurisdiction because reserve lands fall under federal jurisdiction.

The result of Derrickson and Paul and the lack of legislation have meant that people on reserves do not enjoy the same matrimonial rights as the rest of us have.

Upon the breakup of marriage, the people on reserves cannot seek the help of provincial or territorial courts to divide their assets.

Since 1986, the Derrickson decision of the Supreme Court of Canada and the gap in the law has meant that the courts cannot grant relief, such as ordering that one spouse — normally the spouse who has the sole custody of the children — have possession of the house or ordering that the spouse who has the house in his or her name not further encumber the property.

This means that any legislation that is developed regarding matrimonial real property on reserves must successfully balance the individual rights, which protects spouses and common-law partners, and, at the same time, protects the collective interests of the First Nations on their reserve lands.

In addition, the resulting legislation would set out provisions for the enactment of First Nations laws respecting on reserve matrimonial real property as well as provisional and federal laws. These federal and provisional laws would apply unless and until First Nations communities establish their own matrimonial real property law, as the legislation provides a mechanism for First Nations to apply their own matrimonial real property laws, which would then be applied by courts across Canada.

Bill S-2 is our government’s fourth attempt at doing just that. The most recent incarnation, Bill S-4, passed through the Senate in June 2010.

Throughout the committee meetings and during a speech I delivered at third reading of Bill S-4, I brought up several points of concern, and I am extremely pleased to see that the bill that is before us today has improved in three important ways.

The first change is the removal of the verification process, including the role of the verification officer. When I spoke at third reading on Bill S-4, I referred to the paternalistic undertones that were embedded in the legislation. I spoke to the part of Bill S-4 that called for a verification office and a verification officer whose job it would be to oversee and approve First Nations matrimonial real property laws. This was problematic for a number of reasons, particularly because the verification officer would determine whether or not the First Nations community approval and ratification process were acceptable.

I commend our government for acknowledging the various concerns that were brought forward, for it has deleted the entire verification process from the legislation. Now First Nations citizens are the sole approving authority for First Nations matrimonial real property laws, and their councils are responsible for reporting the community approval outcome in writing to the minister if the First Nation law is approved.

The second change is a lower ratification threshold. During committee, several of my colleagues and I spoke out the against the high ratification threshold which appeared unreasonable as it would make it extremely difficult for First Nation communities to pass their own laws relating to matrimonial real property on reserves. Bill S-4 required a double majority for the adoption of First Nations laws, which meant a majority of eligible voters had to participate in the vote, and of that, 50 per cent plus one, the majority, had to vote in favour.

I again commend our government for lowering the ratification threshold to a single majority with a set participation in the vote of at least 25 per cent of eligible voters. This will indeed make it easier for First Nations to adopt their own laws.

The third change is the inclusion of a transition period. In Bill S-4, there was no transition period, meaning that legislation would have to come into force on a day or days to be fixed by order of Governor-in-Council. Bill S-2, which we have here today, includes a 12-month transition period before the federal provisional rules come into force. This transition period has been incorporated to allow those First Nations that are well advanced in developing their own laws with time to enact them before the provisional federal rules take effect.

I commend our government for having taken the recommendations we made while studying Bill S-4 and having adapted Bill S-2 which is before us today accordingly.

Honourable senators, although I am pleased to see that several troublesome components that were present in Bill S-4 have been amended in this piece of legislation, there are still, however, several areas of concern as we are granting rights to people living on reserves but not providing them with resources necessary for those rights to be exercised.

Today I would like to share with you the concerns I have, namely, lack of resources, housing shortages, legal aid and adequate consultation.

In June 2010, when the Standing Senate Committee on Human Rights was studying matrimonial real property on reserve legislation in the form of Bill S-4, we heard from Member of Parliament John Duncan, who is presently the Minister of Aboriginal Affairs and Northern Development. In his remarks, he stated:

Enacting this proposed legislation is the right thing to do for three reasons. First, Bill S-4 affords residents of First Nation communities a level of protection similar to that enjoyed by other Canadians. Second, it enables First Nation communities to design and implement matrimonial real property laws tailored to their own cultures and traditions. Third, the immediate and concrete solution articulated in Bill S-4 is informed by considerable research and consultation conducted by independent groups, including national Aboriginal organizations.

After studying Bill S-4 closely, I learned that, although the legislation was indeed needed to deal with the issue of matrimonial real property on reserves, Bill S-4 was not the answer.

Although I am pleased to see many improvements in Bill S-2, I am still concerned that the three priorities that Minister Duncan set out will fail to be met.

First, rights without resources: I firmly believe that the Aboriginal men and women are entitled to the same rights granted to the rest of Canadians. However, I am not sure how this bill will make that a reality.

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Honourable senators, it is important we remain mindful that First Nations men and women living on reserve are subject to different circumstances than the rest of Canadians. Unfortunately, those living on reserves do not have access to the same resources as the rest of us.

If we are going to recognize the rights of First Nations communities and work with First Nations citizens to ensure those rights are protected, we need to remember that a right without resources is not a right. It is a hollow right. We need to do more than acknowledge that men and women living on reserve are entitled to the similar rights that the rest of Canadians enjoy. We need to ensure that the proper resources are in place and can be exercised. If we are going to fight for the rights of Aboriginal women living on reserves, we must realize those rights come with corresponding duties. We have to ensure they have the ability to exercise their rights. Not doing so would be comparable to giving a woman the right to vote in Ottawa, but having the ballot box in Vancouver.

Another concern is housing shortages on reserve. While working on this issue for many years, I have heard a number of heartbreaking stories told by women who were displaced from homes with no place to go. A story that still stands out in my mind is one of an Aboriginal woman who committed suicide after authorities apprehended her children. This woman, who was the mother of five children, was forced to leave her reserve because of the housing shortage. Unfortunately, she was unable to find affordable housing off-reserve and was forced to move herself and her five children into a rundown boarding house. When the authorities found out about this, they apprehended her five children. Unfortunately, having felt she had lost everything, this woman decided to take her life.

The unfortunate reality is that this is one of the many devastating examples of how dire the housing situation on reserves is. When a marriage breaks down, the lack of housing is one the main reasons forcing people to leave the reserve. This needs to be appropriately acknowledged and addressed as part of a broader, more comprehensive approach to this subject.

Another issue that men and women are confronted with is access to justice. Accessing legal aid is difficult for all Canadians, however it is even more difficult for those living on reserves. Bill S-2 requires one to rely heavily on provincial courts. In light of the fact that legal aid systems are severely underfunded, I worry about the fact that this piece of legislation requires First Nations communities to further exhaust these already exhausted resources. For example, imagine a woman who comes home to find her husband has changed the locks on their home, leaving her and her children with nowhere to go. In clause 16 of Bill S-2, there exists an emergency protection clause that ensures that this woman must go to court, obtain a lawyer, and obtain an order to re-enter her house. However, this order will only protect her for 90 days. After the 90 days, this woman is left in the same position she was in initially, and she and her children once again have no place to go.

Honourable senators, many women living on reserve do not have the money, the transportation or the ability to access justice through such a court order. We must ask ourselves, “What recourse does this woman have?” In order for this bill to be successful, we need to ensure the proper resources are in place so that our goal of granting Aboriginal people the same rights that are granted to the rest of the Canadians becomes a reality. If this is not done I fear that this will be yet another example of out how our government raises the hopes of Aboriginal people only to let them down.

In the 2004 case of Haida Nation v. British Columbia (Minister of Forests), the Supreme Court of Canada outlined principles that were set out to help guide consultations that ensured the Government of Canada engages in effective and efficient consultations with the First Nations people. These principles can be described as follows:

First, shared commitment: Consultation will be based on a commitment to cultivate a climate of good faith, mutual respect, reciprocal responsibility and efficiency.

Second, sound decision making: The consultation process will ensure that the results of meaningful consultation are sustainable.

Third, transparency: Effective and efficient consultations must be timely, accessible, inclusive of all potential stakeholders, and be based on clear, open, two-way communication and accountabilities.

It has been argued that First Nations members did not have a meaningful opportunity to consult with the government, in clear contradiction of the principles set out in the Haida case.

In 2006, the then Minister of Indian and Northern Affairs appointed Chief Wendy Grant-John as the ministerial representative whose job it was to examine the issue of matrimonial real property rights on reserves. After working with several First Nations representatives and community members, Chief Wendy Grant-John advanced several recommendations to help ensure that a proper consultation process occurred. She stated:

Situating matrimonial real property issues within the legal, social and cultural context in which they are experienced by First Nations families, including the particular experience of First Nation women, is an important reference point for the recommendations I have made.

Although consultations have taken place, there have been uncertainties surrounding whether or not they are meaningful. Although some First Nation groups had the opportunity to participate in the consultation process, many of the witnesses who have appeared before our committee in the past have made it clear that they did not feel as though they were heard, as their concerns were not reflected in the resulting pieces of legislation.

It is my understanding that no further consultations were undertaken for Bill S-2. Presently, it appears that the guidelines that emerged from the Haida case have been overlooked as were the recommendations provided by Chief Wendy Grant-John, who was the minister’s representative. As a result, I am afraid that Bill S-2 appears to be another example of how we have failed to fulfill our duty to consult.

Honourable senators, I know this bill will be thoroughly studied at the committee stage, where we will have the opportunity to hear the voices of those who will be most affected by this legislation. I look forward to reporting back to you.

(On motion of Senator Tardif, for Senator Dyck, debate adjourned.)

 

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