ON-RESERVE MATRIMONIAL REAL PROPERTY: STILL WAITING
Report of the Standing Senate Committee on Human Rights
Fourth Report
Chair: The Honourable Raynell Andreychuk
Deputy Chair: The Honourable Landon Pearson
December 2004
The Honourable Raynell Andreychuk, Chair
The Honourable Landon Pearson, Deputy Chair
and
* Jack Austin, P.C. (or William Rompkey, P.C.)
Sharon Carstairs, P.C.
Marisa Ferretti Barth
Marjory LeBreton
* Noel A. Kinsella (or Terrance R. Stratton)
Rose-Marie Losier-Cool
Donald H. Oliver
Vivienne Poy
* Ex Officio Members
Staff from the Parliamentary Information and Research Service of the Library of Parliament:
Laura Barnett, Research Officer
Marlisa Tiedemann, Research Officer
Line Gravel
Clerk of the Committee
Extract from the Journals of the Senate, Wednesday, November 3, 2004:
The Honourable Senator Andreychuk moved, seconded by the Honourable Senator Oliver:
That theStanding Senate Committee on Human Rights be authorized to invite the Minister of Indian and Northern Affairs to appear with his officials before the Committee for the purpose of updating the members of the Committee on actions taken concerning he recommendations contained in the Committee’s report entitled A Hard Bed to lie in: Matrimonial Real Property on Reserve, tabled in the Senate November 4, 2003; and
That the Committee continue to monitor developments on the subject and submit a final report to the Senate no later than March 31, 2005.
The question being put on the motion, it was adopted.
Paul Bélisle
Clerk of the Senate
Following in the footsteps of this Committee’s study of on-reserve matrimonial real property in 2003, the Senate Standing Committee on Human Rights today presents its current report and recommendations on this pressing issue. The previous Committee worked with diligence, issuing its interim report, A Hard Bed to Lie in: Matrimonial Real Property on Reserve, in November 2003. That report stressed the deplorable conditions under which on-reserve First Nations women and their children often live, while emphasizing the work that must be done to rectify the situation where no federal or provincial law applies on-reserve to protect a spouse’s real property rights.
Today’s report builds upon that previous study and sounds the alarm, highlighting what action must be taken before this issue is resolved and the study effectively completed. On 22 November 2004, the Minister of Indian Affairs and Northern Development appeared before this Committee to inform us about government action on this issue. While the Committee is encouraged by the Minister’s comments and goodwill, we present today’s report with the aim of outlining the work that must still be done, strongly recommending that consultations and proposals for legislative change be undertaken in a timely manner, and that First Nations women’s groups be included in this consultation process. The Committee sees a definite role for the Standing Senate Committee on Aboriginal Peoples in this process and stresses that the parameters of the study must be carefully set so as to ensure that focus on the important issues is not lost.
Women and children are suffering as a result of the legal lacuna concerning on-reserve matrimonial real property – where rights are denied, justice is denied. This Committee’s report stands as a call to action, immediately.
Raynell Andreychuk
Chair
FIRST NATIONS: STILL WAITING
The Standing Senate Committee on Human Rights makes the following recommendations to the Minister:
- that both the reference to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, and the consultations that that Committee is to undertake, be done in a timely manner;
- that the Standing Senate Committee on Aboriginal Peoples be involved in the consultations to be carried out by the House of Commons Committee;
- that the Minister give strong consideration as to who is to be consulted, and include parameters for the consultation in his order of reference;
- that in referring this consultation to the House of Commons Committee, the Minister ensure that that Committee does not lose sight of the key issue, namely that women and men on reserve need to have their property rights with respect to real matrimonial property clarified; and
- that this Committee’s Order of Reference received from the Senate on November 3, 2004 be extended to December 2005.
Pursuant to the Order of Reference received by this Committee on 4 June 2003, and as a follow-up to the Interim Report submitted by this Committee in November 2003, this Committee now submits the following report:
On 4 June 2003, this Committee was authorized to examine and report upon key legal issues relating to the division of on-reserve matrimonial real property. In particular, this Committee was authorized to examine:
- the interplay between provincial and federal laws in addressing the division of matrimonial property (both personal and real) on-reserve and, in particular, enforcement of court decisions;
- the practice of land allotment on-reserve, in particular with respect to custom land allotment;
- in a case of marriage or common-law relationships, the status of spouses and how real property is divided on the breakdown of the relationship; and
- possible solutions that would balance individual and community interests.
While the division of on-reserve matrimonial real property has been a known problem for a number of years, it has recently received increased attention. The issue is essentially that there is no federal or provincial law that applies on-reserve to protect a spouse’s rights with respect to either possession of the matrimonial home or the equal division of real property. Other Canadians can avail themselves of provincial laws to resolve these matters, but provincial laws that govern real property do not apply on-reserve because Parliament has exclusive jurisdiction over lands reserved for Indians and, as a consequence, over real property. Since Parliament has not enacted any law that addresses how this real property is to be divided upon the breakdown of either a marriage or a common-law relationship, people residing on-reserve are treated differently than other Canadians. This is not acceptable, against the CanadianCharter of Rights and Freedoms and probably not in keeping with our international obligations.
Those most likely to suffer as a result of this different treatment are Aboriginal women and children. In the autumn of 2003, this Committee heard heart-wrenching testimony from a number of Aboriginal women and Aboriginal women’s organizations. In some instances, a lack of housing on-reserve meant that women who had not been able to stay in the family home were forced to leave the reserve with their children.
Amnesty International’s October 2004 report, Stolen Sisters: A Human Rights Response to Discrimination and Violence Against Indigenous Women in Canada, states that the failure to implement measures that could help reduce the risk of violence to indigenous women is “only one example of the way Canadian authorities have failed in their responsibility to protect the rights of Indigenous women in Canada.” Canada’s failure to protect the real property rights of women on reserve in the event of a marriage breakdown is clearly another example, and this has been pointed out by a number of United Nations committees.
In November 2003, this Committee released an interim report entitled A Hard Bed to Lie In: Matrimonial Real Property on Reserve which contained the following preliminary recommendations:
- amend the Indian Act in order that provincial/territorial laws respecting the division of matrimonial real property can apply on-reserve;
- amendments to the Indian Act should not impact on First Nations that already have measures in place for the division of real property, provided that those measures afford protection equal to that of provincial legislation;
- amendments to the Indian Act should take into account the rights of children;
- amend the Indian Act in order that a person’s right to occupy a matrimonial home is recognized regardless of whether their name appears on the Certificate of Possession;
- allow for the registration of on-reserve family homes in order to protect the rights of spouses;
- amend the Indian Act so that the children and grandchildren of women who had lost their status prior to 1985 may have status and membership, and grant automatic membership to a woman who upon marriage lost her membership in the First Nation into which she was born;
- address the issue of the division of on-reserve matrimonial real property in any self-government negotiation and include specific provisions in any agreement-in-principle or final agreement;
- provide appropriate funding to Aboriginal women’s associations so that they can consult First Nations women on this issue.
In March 2004, this Committee invited the then Minister of Indian Affairs and Northern Development to respond to the recommendations contained in the interim report. At that time, the then Minister encouraged this Committee to continue its study, but as a result of the prorogation of Parliament at the call of the 2004 general election, this Committee was unable to continue our study at that time.
With a new Parliament, a new reference from the Senate and a new Minister of Indian Affairs and Northern Development, this Committee saw fit to invite the Minister to discuss departmental progress as well as this Committee’s future role in addressing this issue. At the 22 November 2004 meeting, the Minister thanked this Committee for its “excellent” work, and advised us that he would be referring the issue to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development. The House of Commons Committee will undertake consultations and as the Minister said “produce a report that outlines a clear and comprehensive legislative framework to address the statutory and jurisdictional gaps regarding on-reserve matrimonial real property.”
While this Committee respects the Minister’s decision to refer this issue to the House of Commons Committee, this Committee has a number of concerns that need to be addressed. This Committee would like to emphasize that it in no way doubts the good intentions of the Minister. However, Parliament has been reviewing this issue for a number of years. Witnesses have testified, papers have been written, and debates have been held. The issue has also been raised independently by Senators. There comes a time in every review of an issue where someone needs to stand up and say “Enough with studies. It is time to act!”
This Committee takes the fiduciary relationship Parliament has with Aboriginal peoples in Canada very seriously, and urges the government to respect that relationship by demonstrating that it will no longer tolerate the existence of this inequality. In failing to take action to remedy the inequality faced by spouses residing on reserves, Parliament has fallen short of this Committee’s expectations.
This Committee would also like to express its apprehension that, in referring this issue to a different committee, valuable time may be lost as the House of Commons Committee takes the time to become knowledgeable with respect to this question. This Committee firmly believes that members of the Senate Committee have valuable experience to contribute to the next steps to be taken by the House of Commons Committee.
The Minister’s statement that he will be directing the House of Commons Committee to carry out a consultation on this issue raises the question about what the consultation will entail. The Minister has indicated that he wants to “encourage the broadest public consultation.” While this Committee appreciates the need for a thorough consultation, we want to ensure that it will be conducted in a timely manner, and will not cause further unreasonable delay in resolving this issue.
While the Minister has recommended a broad consultation, he has at the same time emphasized that the key players in the consultation process and subsequent assessment of options will be First Nations Leaders and Parliamentarians. Specifically, he commented that referring the consultation to the House of Commons Committee will “enable both First Nations Leaders and Members of Parliament in both houses to be engaged early in the development of legislative approaches.” The Minister also stated that he has “begun to advise the AFN and the NMC and other national organizations of [his] intentions.” This Committee does not believe that simply consulting Aboriginal organizations and the leaders of these organizations would be sufficient. Witnesses who appeared before this Committee indicated that they did not necessarily share the opinions expressed by Aboriginal organizations and community leaders. It is the voices of these women in particular that need to be heard. For that reason, we need to ensure that at the end of the consultation process, any legislative framework that is put forward by the House of Commons Committee is based on consultations with the First Nations women who are affected, and is not based solely on the desires of national Aboriginal organizations.
At this point, the Minister has not provided this Committee with detailed information regarding the terms of reference for the House of Commons Committee. As previously mentioned, this Committee has concerns about who will be consulted. We are also concerned that the consultations might not be binding on the government, in which case they may only lead to more consultations and studies instead of government action.
This Committee has brought their concerns to the Senate’s attention. We now put forward a number of recommendations in the hopes of assisting the Minister in making his directions to the House of Commons Committee. More importantly, we make these recommendations to push the government towards taking action on this issue.
First, this Committee recommends that both the reference to the House of Commons Committee, and the consultations that that Committee is to undertake, be done in a timely manner. We do not propose to set timeframes for the government, but do suggest that a timeframe be established within the order of reference itself, with clear benchmarks to mark the progress of the consultations. We also recommend setting deadlines for the subsequent legislative proposal, and request that the Minister keep this Committee informed of any delay in meeting that deadline.
We also strongly urge the government to set deadlines for the plain language document and the paper Housing and Matrimonial Real Property Issues on Reserves that he referred to at our meeting on 22 November.
Second, this Committee recommends that the Standing Senate Committee on Aboriginal Peoples be involved in the consultations to be carried out by the House of Commons Committee. We have already mentioned that there is expertise in the Senate on this issue, and we would like to avoid any further delay in remedying the inequality. It has happened in the past that the Senate has not been kept informed on the progress of an issue, and delay has resulted when the Senate has needed to “catch up” before it can proceed. Perhaps a Joint Committee could solve the potential problem of the Senate keeping up-to-date with the issue, and would also allow those in the Senate who are already knowledgeable on this issue to use that knowledge to the benefit of both Houses or the Senators could be invited to participate as expert witnesses.
Third, this Committee recommends that the Minister give strong consideration as to who is to be consulted, and include parameters for the consultation in his order of reference. The House Committee needs to hear from the affected women in the communities, and could do so either through communications technology or by travelling. We also want to emphasize the recommendation contained in our interim report that additional funding be provided to Aboriginal women’s organizations to facilitate their communications with Aboriginal women on this issue.
Fourth, this Committee recommends that in referring this consultation to the House of Commons Committee, the Minister ensure that that Committee does not lose sight of the key issue, namely that women and men on reserve need to have their property rights with respect to real matrimonial property clarified. The initial reference given to this committee was extremely broad. We would hope that the Minister would be able to provide the House of Commons Committee with the specific focus of consultations for the purpose of developing legislation. There are bound to be corollary issues raised, such as how appropriate it is to develop a legislative framework that affects the rights of First Nations individuals when examined through the lens of the inherent right of self-government. We emphasize to the Minister that the House of Commons Committee should not lose sight of the purpose of the consultation.
Our final recommendation is that this Committee’s Order of Reference received from the Senate on November 3, 2004 be extended to December 2005. This would allow our Committee to continue to monitor the progress of the House of Commons Committee and the Department of Indian Affairs and Northern Development on this issue.
In closing, this Committee stresses that there is political will from federal, provincial and Aboriginal governments to arrive at a solution to this problem. By working together, instead of separately and at different times, all of those involved should be able to develop a legislative framework that is acceptable to all affected. We will then be able to stand just a little bit taller when we are asked to update the United Nations on Canada’s progress in protecting the human rights of Aboriginal women. These are our recommendations to the Minister.