Debates of the Senate (Hansard)

3rd Session, 40th Parliament,
Volume 147, Issue 25

Wednesday, May 5, 2010
The Honourable Noël A. Kinsella, Speaker

Family Homes on Reserves and Matrimonial Interests or Rights Bill

Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Comeau, seconded by the Honourable Senator Tkachuk, for the second reading of Bill S-4, 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 today to speak on Bill S-4, a bill respecting matrimonial property situated on First Nations reserves.

The preamble sets out:

WHEREAS it is necessary to address certain family law matters on First Nation reserves since provincial and territorial laws that address those matters are not applicable there and since the Indian Act does not address those matters;

WHEREAS measures are required to provide spouses or common-law partners with rights and remedies during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner in respect of

The preamble goes on to talk about how it is necessary also to look after the interests of the children. When decision-makers look at the whole issue, they should look at how this bill will protect the children. Bill S-4 clearly emphasizes to the decision- makers that protecting the rights of the child to maintain contact with the First Nation community is paramount. The child also needs to know his or her First Nation culture and social rights.

Presently, when a marriage breaks up, people living on reserves do not enjoy the same rights on a break-up of marriage 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 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 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 on separation.

There is a legislative gap. The courts have no authority to protect the matrimonial real property interests of spouses on reserves. In a report called Reclaiming Our Way of Being: Matrimonial Real Property Solutions, People’s Report, the Native Women’s Association of Canada states:

This lack of legal clarity and protection also means that women who are experiencing violence, or who have become widowed, may lose their homes on the reserve. NWAC understands that this gap in the law harms Aboriginal women and children more often than Aboriginal men. Women and children who have to move away from the reserve lose the support and help of their families, friends, and community. They also lose their access to benefits and programs that are only available to people living on reserve. The entire community will miss the women and their children’s contributions as well, if they have to move away from the reserve.

Later, the report continues:

Children have the right to live in a safe and healthy environment. The well being of children is best met by their parents being able to find solutions to their disagreements that consider the needs of the children first.

“. . .the importance of making the children feel safe in their communities and not having to leave their communities and so that they can have some stability.”

Men are our equal partners, and their skills and knowledge give them an essential and equal role in the community. Men contribute to and benefit from the existence of strong and respectful families in our communities. Men also provide leadership in rebuilding our communities. As one woman said:

“We need to work together, right – men and women. I’m a mother of two sons; I don’t want my sons separated from stuff that’s going to affect them. We are women, we give birth to men, and they are a part of us.”

The report later says:

“. . . our traditional ways have brought us through and we have the ability to pull back from the memories of our elders and utilize those systems for our people.”

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 blush, there could be an assumption that provincial or territorial legislation would also govern property rights upon a break-up of a 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 have the same rights. Bill S-4 is trying to right a wrong and be just for all Canadians.

The provincial law applies to personal property in the event of a break-up of marriage on the reserve; that is to say, assets such as cars, furniture and personal effects. The Supreme Court 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 held that the courts cannot rely on provincial law to order the division of real property on reserves.

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

Honourable senators, there is a legislative gap for people on reserves and then there is the issue of ownership of land and collective rights on the reserves.

Most Canadians who own land have full — fee simple — ownership of land itself. Reserve land is not “owned” in the usual meaning of the word by the people of the First Nation. Underlying title is held by the Crown. As section 18 of the Indian Act says:

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

Aboriginal people can obtain possession of land on which they would be able to erect buildings, and the buildings will belong to them, but in most cases, they will never have full fee simple ownership of the land itself.

In 1986, as I have already stated, the Supreme Court, 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 do not enjoy the same matrimonial property rights as the rest of us have. Upon the breakup of a marriage, the people on the reserve 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 meant the courts cannot grant relief on such things as: to stop a spouse from selling their house; order that one spouse — normally the spouse who has the sole custody of the children — have possession of the house; order the partition and sale of the family home; order one spouse to receive compensation from the sale of the house; or order that the spouse who has the house in his or her name not further encumber the property.

Bill S-4 purports to provide for interim measures and these should be examined in committee.

Some key elements of this bill are that one spouse can apply for exclusive occupation of the matrimonial home. Another element is that a person can apply for an order for compensation on sale of the home and, if there is an assault by one spouse, the other spouse can apply for an immediate order that the offending spouse vacate the home for up to 90 days. In addition, the court can order the transfer of certain rights and interests in the reserve lands to either spouse.

There have been some consultations with the First Nations, with Chief Wendy Grant John being the ministerial representative. However, I understand there is a concern that there have not been enough consultations. The Native Women’s Association of Canada, in their earlier report that I quoted, cautioned us to make sure that the ideas for solutions for this matrimonial real property division come from the people of the First Nation who have personal experience with matrimonial real property; and they further caution us that the First Nation’s own culture, knowledge and experience be reflected.

The Native Women’s Association of Canada, in their report, quote one of the women. She says:

I think there are just layers and layers like an onion. I always say when it comes to Aboriginal women it’s just like an onion, one layer after another after another after another. We’re so pushed down by all those determinants that it makes it quite difficult to hear our voice.

Honourable senators, Bill S-4 alone will not change the lives of First Nations people, especially of the women. The following are some of the resources that we need to provide for this bill to become an effective law.

The first is housing. The shortage of on-reserve housing is one of the main factors forcing people to leave the reserve in the event of a marriage breakdown. The Senate Committee on Human Rights studied this issue in 2003. In our report, which was titled A Hard Bed to Lie In: Matrimonial Real Property on Reserve, the Native Women’s Association of Canada stated to the committee:

NWAC takes the position that effective remedies to address a lack of matrimonial property rights regimes on reserves must be implemented in all communities immediately, even if this is before the realization of self- government and even if this means legislative reform, due to the severity of its impacts on the lives of First Nations women and their children. This impact is captured in the following account.

An Aboriginal woman committed suicide earlier this year after the authorities apprehended her children. The woman, who had five children, was forced to leave her reserve due to a chronic housing shortage. However, she could not find affordable housing off the reserve. Due to her financial situation she was forced to live in a rundown boarding house with five children. She sought assistance from the authorities to seek affordable housing for her and her children. The authorities responded by apprehending her children. At that point, the woman, sadly, lost all hope and took her life.

Besides providing housing, there is also the issue of access to justice. For this bill to help people on reserves there will have to be access to the courts, especially for women living in remote areas. With easier access to justice, there will have to be an implementation of legal aid for people on the reserves.

When this bill is sent to committee, in order to provide balance or justice with regard to matrimonial real property, we will have to work hard to ensure that we do not create injustice on the following issues, which we will have to look at when we study the bill.

We will have to look at whether Bill S-4 prejudices the inherent jurisdiction that the First Nations have over marriage and matrimonial property. We will have to study how Bill S-4 could affect the inherent right of self-government and what effect it will have on the collective rights of the First Nations when this bill comes into force. We will have to examine whether this bill will affect any other right of self-government and whether Bill S-4 would be contrary to the Constitution Act, 1982.

Honourable senators, I would like to conclude by reading the conclusion of the report of the Native Women’s Association of Canada.

On page 23, they state:

The connections of Aboriginal peoples to our lands and territories are sacred and historical. These are not just pieces of land, but our traditional territories. This issue of matrimonial property on reserve was not created by Aboriginal people. The issue of matrimonial real property on reserve is now a complex one to resolve; however, it should not be. There has been much discrimination in the past and it continues to this day. This discrimination has created detrimental impacts upon many generations of youth, women, men, families, and communities across this country.

NWAC believes that introducing legislation on matrimonial real property is only part of the solution, and they end by saying, as one participant told us:

I know that the urgency of the problems, one would be quick to look at what we do to “stop the bleeding” and why that concerns me is that I’ve seen over the years too often that if government can stop the bleeding, that is all they want to do, they haven’t healed the wound.

Honourable senators, Bill S-4 is a start to resolving issues for First Nations people on matrimonial property, but we also have to look at providing safe homes for women on reserves or near reserves, and how to help them build more housing and obtain better access to justice.

Hon. Sandra Lovelace Nicholas: Would the honourable senator take a question?

Senator Jaffer: Yes.

Senator Lovelace Nicholas: When the honourable senator was in committee hearings, did she feel that most of the problems originate with INAC? I refer to the housing shortage and the lack of adequate funding.

Senator Jaffer: Honourable senators I have to confess that the hearings were in 2003, so I could not say today exactly if most of the problems originated with INAC. However, having just read the report, I do know that housing and funding issues were emphasized by most on-reserve witnesses.