Debates of the Senate (Hansard)

3rd Session, 40th Parliament,
Volume 147, Issue 41

Monday, June 21, 2010
The Honourable Noël A. Kinsella, Speaker

Family Homes on Reserves and Matrimonial Interests or Rights Bill

Third Reading—Motion in Amendment—Vote Deferred

On the Order:

Resuming debate on the motion of the Honourable Senator Nancy Ruth, seconded by the Honourable Senator Nolin, for the third 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, as amended.

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak on Bill S-4, An Act respecting family homes on First Nation reserves. In 2003, I was a member of the Senate Human Rights Committee which studied property rights for women on reserves. In a report entitled A Hard Bed to Lie In: Matrimonial Real Property on Reserve, the Senate committee addressed the need for legislation to be drafted so that Aboriginal women would have access to the necessary resources to ensure that they could protect themselves and their families.

Seven years later, I stand before you with Bill S-4. Unfortunately, this bill has been unsuccessful in filling the legislative gap that would still exist even if this bill was accepted and implemented. Not only does Bill S-4 fail to provide adequate support for women who are placed in vulnerable positions, it also oppresses entire communities and infringes on the constitutional rights guaranteed to First Nations people. Essentially, this bill raises the hopes and expectations of First Nations, but fails to provide the desired outcome.

Many of the ideas advanced in this bill are honourable, but practically speaking, very few will materialize. In my presentation this evening, I will highlight three specific areas of concern which demand our attention.

To begin, I will address our government’s failure to fulfill its duty to consult. I will then proceed to discuss the lack of resources available to Aboriginal people living on-reserve, focusing specifically on women. I will conclude by discussing the condescending and paternalistic undertones of Bill S-4, paying particular attention to the instatement of a verification officer. Finally, I will propose an amendment to this bill.

In the 2004 case Haida Nation v. British Columbia (Minister of Forests), the Supreme Court of Canada outlined principles that were set out to help guide consultations to ensure that 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 accountability.

Most of the witnesses who appeared before the committee stated that they had not been consulted. Contrary to the principles set out in the Haida case, First Nations members did not have a meaningful opportunity to consult with their government.

Furthermore, the consultation process was flawed in a very important way. In 2006, the Minister of Indian and Northern Affairs appointed Chief Wendy Grant-John as the minister’s representative to examine the issue of matrimonial real property rights on reserves. After working closely 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.

When drafting Bill S-4, the guidelines that emerged from the Haida case were overlooked, as were the recommendations provided by Chief Wendy Grant-John, who was the minister’s representative. As a result, Bill S-4 is an example of how we have failed to fulfill our duty to consult, and this is one of the several reasons why this bill should be rejected.

Not only did Chief Wendy Grant-John advance recommendations regarding how a proper consultation process can be undertaken, she also focused on ensuring that women were no longer silenced. One of her objectives was to highlight current issues pertaining to the disproportionate and negative effect the current matrimonial real property system was having on women. She stated that:

. . . the impacts of the lack of matrimonial real property protections have been greater for First Nation women overall than for First Nation men due to the current social roles and ongoing impacts from past discriminatory provisions of the Indian Act that excluded First Nations women from governance and property.

The unfavourable circumstances that women who live on reserve are currently confronted with, and will continue to be confronted with, even if this bill is passed, can be demonstrated in the following example.

Imagine a woman who comes home to find that her husband has changed the locks on their home, leaving her and her children with nowhere to go. In section 21 of Bill S-4, 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 protect her only for 90 days. After those 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.

What do we say to this woman? Do we assure her that within those 90 days, she can apply for an extension? What happens if she does not have the money, the transportation or the ability to access justice and extend her order from a remote area? What recourse does this woman have?

Honourable senators, the reality is that Bill S-4 does not place women in favourable positions. It only raises expectations of women. It does not relieve their pain and suffering; it simply postpones it for a period of 90 days.

As I stated previously, Chief Wendy Grant-John’s objective was consistent with the initial objective advanced by the Standing Senate Committee on Human Rights. Unfortunately, Bill S-4 fails to meet that objective, as it does not reflect the interests of the women it primarily seeks to protect.

This failure became clear after hearing testimony from several female First Nations representatives, many of whom were concerned about whether they would have adequate protection as well as access to the necessary resources required for them to ensure that they, along with their children, were protected.

More specifically, although Bill S-4 may appear to be a feasible solution to matrimonial and real property issues for the average Canadian, it fails to acknowledge the fact that many Aboriginal people are subject to different financial and geographic circumstances.

Only last Tuesday, Minister Chuck Strahl stood before the House of Commons during Question Period and stated that Bill S-4 would give Aboriginal people the same amount of key rights as the rest of Canadians. He then proceeded to state that the members of the Liberal Senate did not care about Aboriginal rights, and they were hesitant to sign off on this bill. These statements were not accurate.

Honourable senators, we have all been seriously studying this bill. Bill S-4 cannot provide Aboriginal people with the same rights as other Canadians because it does not provide them with the tools needed for this to be the case. Until legal aid, adequate housing and funding for native child and family services is made available, Aboriginal people will continue to be treated as unequal to the rest of us. Once again, this bill raises expectations of women but fails to deliver their desired result.

I asked Minister Strahl what a woman residing on a remote reserve in the North should do once her 90-day emergency protection order expires. Where will she find a place for her and her family to live in light of the housing shortage? Where does she find legal representation when lawyers in the area are scarce? How does she finance a lawyer in the case that she is fortunate enough to find one?

We heard testimony from Dr. Pamela Palmater, who is an Aboriginal woman that lives off-reserve and who holds a PhD in law. Even she could not afford the legal fees that were required to take her ex-husband to court for child support. She went on to state:

I am in far superior position to most of my large extended family, or those who live on reserve. Imagine, you have all of these remedies but you cannot access them.

We also heard from Chief Jody Wilson Raybould, a chief from British Columbia, who stated:

. . . the remedies proposed in Bill S-4 rely heavily on access to provincial courts. Legal aid systems are chronically under-funded, and are not meeting current needs, let alone the future demand created by the adoption of this bill. Due to the significantly lower income levels on reserves, it will be difficult for many couples to access existing or new remedies.

Aboriginal women will not have access to the resources they need to protect themselves and their families. At this time, it is irresponsible and ineffective to implement this bill, as it will be unable to generate the positive effects it intends to.

Something that is perhaps even more pressing is how this bill will be implemented and how individual bands will go about adopting these new provisions.

During our committee meeting, Minister Strahl stated that a Centre of Excellence will be established to help different First Nations communities institute this legislation in an individual and culturally sensitive manner. Minister Strahl stated that the Centre of Excellence will be a great resource for First Nations members.

I, too, agree that this centre indeed will be a valuable resource. However, when I inquired about where the centre would be located, how proactive would it be, how much money was set aside to fund it and what its mandate was, I was disappointed. This disappointment ensued after I realized that this proposed Centre of Excellence was without a budget, without a mandate and without a location. To me, this is another example of our government raising expectations of women but failing to follow through.

The fact that the First Nations people were not properly consulted, coupled with the fact that there are not adequate resources in place to ensure the bill is successfully implemented, is troubling. What is even more troubling, however, is the paternalistic and condescending undertones of this bill.

In sections 8 through 16, Bill S-4 calls for a verification officer, which is frankly an Indian agent by another name. Dr. Pamela Palmater described the purpose of a verification officer as follows:

The job of a verification officer is to ensure that the community referendum plan and process is suitable to the officer. At all stages of the First Nations law-making process, the verification officer can withhold his or her approval, which would prevent the First Nation from completing the next stage of the process. Even once the law-making process had been completed the verification officer must certify the “conduct” of the referendum process before the laws are deemed validly approved. The underlying assumption being that First Nations are not capable of respecting human rights.

The inclusion of a verification officer and a certification process has been described by various witnesses who presented on Bill S-4 as akin to reinstituting Indian agents. John Borrows, a respected indigenous scholar, wrote that the federal government, in earlier times, consistently undermined the liberties and freedoms of First Nations by placing Indian agents in supervisory roles in their communities and that positive change has come about in First Nations as a result of their continued resistance to these impositions.

The 1996 report of the Royal Commission on Aboriginal Peoples explained that the Superintendent-General of Indian Affairs had a vast array of powers to intervene in almost all areas of daily reserve life, and the majority of these powers were granted to Indian agents. This report described Indian agents as “all powerful” because of their control over local, financial and judicial matters.

The Hon. the Speaker: I must inform the honourable senator that her 15 minutes have expired.

Senator Jaffer: Do I not have 45 minutes?

The Hon. the Speaker: Is the senator asking for an additional five minutes?

Senator Jaffer: For clarification, I am the critic on this bill and I thought I had 45 minutes.

The Hon. the Speaker: I think Senator Dyck had 45 minutes.

Senator Jaffer: May I have an additional five minutes?

The Hon. the Speaker: Is that agreed?

Hon. Gerald J. Comeau (Deputy Leader of the Government): Five minutes.

Senator Jaffer: While some Indian agents demonstrated integrity, there were many problems with other Indian agents.

Honourable senators, two years ago our Prime Minister stood before Canadians and apologized for the assimilatory foundations and attitudes of superiority upon which residential schools were created. I believe that the Prime Minister took a step in the right direction, and we need to follow his lead in saying that we have to change the ways in which we work with Aboriginal people.

Motion in Amendment

Hon. Mobina S. B. Jaffer: Therefore, honourable senators, I move the following amendment:

THAT Bill S-4 be not now read a third time but that it be amended as follows:

THAT Bill S-4 be amended, on page 5, by adding after line 17 the following:

“2.1 For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.”.

THAT Bill S-4 be amended, on page 43, by adding after line 10 the following:

“REVIEW AND REPORT

57.1 (1) Within five years after the day on which this Act receives royal assent, a comprehensive review of its provisions and operations shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for that purpose.

(2) The committee referred to in subsection (1) shall, within a year after a review is undertaken under that subsection or within any further time that may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to that House or both Houses.”.

The Hon. the Speaker: Are honourable senators ready for the question on the amendment?

Some Hon. Senators: Question.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Hon. the Speaker: In my opinion, honourable senators, the nays have it.

And two honourable senators having risen:

The Hon. the Speaker: Do the whips have advice?

Hon. Consiglio Di Nino: According to rule 67(2), I request that the vote be deferred until tomorrow.

The Hon. the Speaker: Pursuant to the rule cited by Senator Di Nino, either the government whip or the opposition whip has the right to ask for deferral until tomorrow.

The vote is deferred until tomorrow.