Debates of the Senate (Hansard)

1st Session, 41st Parliament,
Volume 148, Issue 36

Thursday, December 1, 2011
The Honourable Noël A. Kinsella, Speaker

Family Homes on Reserves and Matrimonial Interests or Rights Bill

Third Reading

Hon. Nancy Ruth moved third 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, as amended.

Hon. Mobina S. B. Jaffer: Honourable senators, I rise here today to speak to 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.

In May and June 2010, the Standing Senate Committee on Human Rights examined Bill S-4, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights. Bill S-4 was identical to other, previous bills, including Bill C-8, introduced during the second session of the 40th Parliament, and Bill C-47, introduced during the second session of the 39th Parliament.

The committee reported Bill S-4 back to the Senate with amendments and the amended bill passed the Senate on July 6, 2010. Bill S-2, a revised version of that bill, was introduced on September 28, 2011, and the committee examined the issue of matrimonial real property once again.

The committee’s pledge to correct something described as a legislative gap on reserves dates back to 2003, when it examined the issue for the first time and published an interim report entitled A Hard Bed to Lie In: Matrimonial Real Property on Reserve. The committee understood the urgency of the situation facing women in some First Nations communities when their spousal relationship breaks down. The committee therefore called for a legislative solution to resolve the injustices that exist.

Honourable senators, for most Canadian individuals who are facing a breakdown of their conjugal relationship or who are suffering the loss of a spouse or common-law partner, legal protection is in place to help ensure that matrimonial real property assets are distributed in an equitable fashion. Unfortunately, this is not the case for those living on reserves governed by the Indian Act. For men and women living on reserve, death or the breakdown of their relationship often leads to homelessness, financial woes and insecurity. This is because the Indian Act is silent on issues of matrimonial real property rights, and there is no legislation in place to fill this gap.

Bill S-2 is the fourth attempt by our governments to fill the current legal gap and provide First Nations people with the same protection that we often take for granted.

Honourable senators, after thoroughly studying this bill in committee, I would like to say that this legislative measure has brought hope to many First Nations people.

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 the 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.

Although in principle this bill aims to provide safeguards to Aboriginal people, it is my fear that it will be unable to achieve its intended effects. This is because Bill S-2 is not accompanied by the necessary resources that will be required for this to be the case.

Honourable senators, in a speech I delivered at second reading on this bill, I stated that a right without resources is not a right. When attempting to provide Aboriginal people with rights similar to those enjoyed by the rest of Canadians, we must remain mindful of the fact that Aboriginal people are often subject to extremely different circumstances.

During our study of Bill S-2, our committee heard from several witnesses who explained how Aboriginal women in particular were often placed in positions where they had to sacrifice their own personal rights and freedoms so that their families could have access to the most basic necessities.

We heard from a woman named Danalyn MacKinnon who explained this when stating:

One is the hierarchy of needs. People are spending their time trying to have housing. When I met my husband on reserve, there were 27 people living in his house. Housing, food, caring for your children, water — these are all essentials that we all take for granted. Women in particular have to make sure those things are there for their children.

In our region, the communities have been devastated by the impact of residential schools. This has resulted in a lot of community and family dysfunction. The result is a lot of violence in communities, sexual and physical abuse; these are the results that people are dealing with.

Honourable senators, I have been on many reserves while I was the Chair of the British Columbia Task Force on Family Violence, as a member of Mr. Mulroney’s panel on violence against women and as a lawyer. It is my view that there is a lot of work to do on the reserves. We do need to have legislation to assist those we can and eventually, hopefully, the legislation will assist more people in the communities to stay on reserves. However, these other issues of resources and the communities’ needs are overwhelming for everyone who lives there.

Honourable senators, after hearing Ms. MacKinnon speak, I learned we cannot look at issues facing Aboriginal people in silos. We must look at the bigger picture. We must ask ourselves if those who require this legislation to be in place will be able to access the necessary resources for it to be effective. For example, Bill S-2 relies heavily on provincial courts, which are not meeting current needs, let alone future ones created by this bill.

During our study, our committee had the opportunity to hear from Ms. Mary Eberts, who is the Ariel F. Sallows Chair in Human Rights at the College of Law, University of Saskatchewan. When I asked Ms. Eberts if she felt Aboriginal women would experience difficulty accessing justice, she responded by stating:

. . . in all of the provinces and territories of Canada, whether or not you are living on an Indian reserve, there are substantial problems for all women getting access to justice in family law situations. There have been radical scale backs in legal aid and the provision of legal aid for family law matters. There are increasing numbers of self-represented people appearing in family courts on their own.

That kind of problem is multiplied manifold when one considers the position of women living on reserve. They do not have legal aid for family law, and their access is further limited because near many of the remote reserves, there are not any lawyers. Even when criminal courts go into the remote reserves, they fly in and everyone comes on the same plane as the judge.

I know of this challenge firsthand, as yesterday my son, Azool Jaffer-Jeraj, who is President of the Trial Lawyers Association of British Columbia, organized an awareness session for provincial courts as duty counsels are withdrawing their services in British Columbia from January onwards.

Accessing legal aid is difficult for all Canadians, and it is even worse for Aboriginal people. Where are these people going to get lawyers? Even if they live near a town where there may be practising lawyers, how will everyone get a lawyer? In many of these communities, even if the money was there, it would be difficult to muster enough nearby lawyers who are skilled in family law to take the issues.

Ms. MacKinnon, to whom I addressed a similar question, stated:

In terms of access to lawyers, we live in an area probably the size of France. There might be, optimistically, maybe 15 or 20 lawyers who do any family law. Out of that, probably only half would take Legal Aid.

It is distances, time, and the resources of the individuals in the community. People just do not have money to ever privately retain a lawyer.

It is very difficult, but without a law, there is no other recourse. If you have a law, at least you can go to court on it if you can get those other things in place, but without those resources, then it is just a law on paper.

Honourable senators, while studying Bill S-2, our committee heard a number of women explain how Bill S-2 would change their lives. Although it does seem to provide protection, we must ensure that these women will have the resources needed to exercise their rights. We must not raise the expectations of Aboriginal peoples and then disappoint them.

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. When a marriage breaks down, the lack of housing is one of 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 the subject.

During our committee’s study of Bill S-2, we heard from a brave woman named Rolanda Manitowabi, who shared with our committee her personal challenges and experiences. During her testimony, she stated that she stayed in a relationship that was stressful and strained because she had no place to go. In fact, even after ending her relationship, Ms. Manitowabi continued to live with her ex-partner for six months before she came home one day to find he had changed the locks, thus leaving her and her son homeless and with no place to go.

Honourable senators, this is the unfortunate reality for many Aboriginal people living on reserves. What is perhaps even more unfortunate, however, is the fact that our government has cut funding to Aboriginal housing by $127 million since 2008, before the Economic Action Plan. Although it is commendable that our government is prioritizing matrimonial real property issues on reserves, the fact that at the same time we are cutting funding to housing on First Nations reserves is extremely troubling.

Honourable senators, we must ask ourselves, where will these displaced spouses go?

During our committee’s study of Bill S-2, we received a written submission from Grand Chief Denise Stonefish from the Association of Iroquois and Allied Indians. In this submission, Grand Chief Stonefish highlighted several concerns, many of which pertained to the authority First Nation governments have to create and implement their own matrimonial rights and interest laws.


She stated:

Under Bill S-2, section 7(1) enables First Nations to develop and enact their own laws for the breakdown of a conjugal relationship or death of a spouse. This provision, however, ignores the existing jurisdiction of Association of Iroquois and Allied Indian member Nations to enact their own laws related to matrimonial rights or interests. . .

She then proceeded to state:

With little to no funding available for First Nations to enact matrimonial rights and interest laws both within and outside the scope of S-2, many First Nation governments will be forced to use the federal provisional codes outlined in Sections 13-52.

Honourable senators, it is clear that many First Nations communities will need support if they are to develop their own laws relating to matrimonial interest and rights. The minister has twice indicated to our committee that a centre of excellence will be established as a source of information and support for First Nations communities.

During our study, the minister made the following statement about the proposed centre of excellence:

What is envisioned is a centre of excellence. A non-political, national First Nation organization would provide non-binding guidance on the direction of the centre, in such areas as research and implementation related activities. The plan is for the advisory committee to be comprised of key stakeholders that would include Aboriginal organizations, NGOs, centre of excellence staff and the Government of Canada.

There would be a targeted, 50 per cent female representation on staff, in an advisory capacity, to address the concerns of women.

I applaud the concept of such a centre. However, I remain concerned that the required Treasury Board approval may cause a delay in establishing the centre, as we were advised that the minister would speak to the Treasury Board about the centre of excellence only once the bill has passed.

Not only is the proposed centre of excellence without a budget, during our committee meeting when I asked the minister more about this centre of excellence I learned that there would be only one centre in the entire country, and the location of that one centre has yet to be determined.

Honourable senators, it is clear that this proposed centre of excellence will be faced with a number of delays, as it currently lacks both a budget and location. Therefore, First Nations communities that may be anxiously seeking out tools to facilitate their law-making process may also face delays.

That is why, during the clause-by-clause consideration of this bill at our committee meeting, I moved to amend article 56(2) and extend the transition period that is currently included in the legislation from one year to two years. This would allow time for both the centre of excellence to be established and for the First Nation communities to develop their own laws pertaining to matrimonial rights and interests. Although I was unsuccessful, I hope that when this bill is in the other place this one-year transition period is examined more closely.

Honourable senators, during our committee study we heard the concerns of a number of Aboriginal people, and we sympathize with their challenges. Although this bill may appear to be a remedy and a safety net, we must remember that this bill will only be implemented if the proper resources are in place for this to be the case.

It is clear to me that we have indeed raised the expectations of several Aboriginal people. However, it is now our duty to ensure that we do not let them down again.

Honourable senators, throughout our committee’s study we gave Aboriginal individuals and organizations a voice. Now we must listen.

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

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

The Hon. the Speaker: Carried, on division.

(Motion agreed to and bill, as amended, read third time and passed, on division.)