Proceedings of the Standing Senate Committee on
Human Rights
Issue 12 - Evidence
OTTAWA, Monday, October 30, 2006
The Standing Senate Committee on Human Rights met this day at 4:10 p.m. to examine and report upon Canada's international obligations in regards to the rights and freedoms of children. This committee also invites the Minister of Indian and Northern Affairs to comment concerning the recommendations contained in the committee's report entitled A Hard Bed to lie in: Matrimonial Real Property on Reserve, tabled in the Senate on November 4, 2003.
Senator A. Raynell Andreychuk (Chairman) in the chair.
[English]
The Chairman: Honourable senators, the Standing Senate Committee on Human Rights is empanelled to examine and report upon Canada's international obligations in regards to the rights and freedoms of children. We have had an exhaustive study of the United Nations Convention on the Rights of the Child and other international legislation that affect children in Canada. Obviously, we look beyond the conventions, but our focus and our report will be on the issue of the United Nations Convention on the Rights of the Child and soon we will report our recommendations to the federal government.
Today, we have two representatives from FUJA, Ms. Youngson and Ms. Gillespie. Both women have short opening statements. We will then turn to Mr. Robert Marsh who will explain his presence here.
Linda Youngson, Representative, FUJA Unity: FUJA is a loose association of families who have felt that they have been victimized by the Minister of Community Services in Nova Scotia and have grave concerns about what is going on as far as children in state care in Nova Scotia. We have banded together to help, assist and encourage each other. I will go into more detail when I give my presentation. We are family unity and justice advocates. We are both from Nova Scotia.
We would like to thank you for giving us this opportunity to bring our concerns to this important committee. For a number of years, we, along with others, have been working as advocates for families in conflict with the Nova Scotia Minister of Community Services over the apprehensions of our precious children and grandchildren. In our work, we attempt to give families encouragement and direction as they wind their way through the system. We go to court appearances as court observers and accompany families to various meetings and appointments as support persons. We conduct ongoing research, pulling up reports, papers and government documents that provide evidence of what we believe is a systemic corruption that has surrounded the apprehension of children in Nova Scotia for generations.
In addition, we have established three blog sites where we are in the process of posting our findings. We also maintain contact with individuals in the media, encouraging them to exert their responsibility of taking the government to task to encourage government accountability to the people.
In September 2005, we stumbled across the Hansard of this committee where Senators Mercer, Pearson, Oliver and Andreychuk came to Halifax on June 16 to gather information from various provincial government representatives. We were disappointed that we, who have a very different story to tell, only heard about this meeting after the fact. We were not aware beforehand of the senators coming to Halifax. In fact, when I visited my local MP's office, they were astounded to hear that their own Liberal senator was in town for this hearing and they expressed to me that he had not even heard of this meeting. I was told that personally.
In the future, this committee needs to ensure that the process for public participation is secure. We, the people, not just government representatives, need to be heard. For the sake of our children and for the sake of the families the politicians claim to support, the voice and the evidence of the people must be guaranteed in committees such as this.
In general, the representatives of the Nova Scotia government are in the habit of pulling out sections of the Nova Scotia Children and Family Services Act as it suits them, quoting from the act and speaking as if they actually follow it. In his submissions to this committee and in answer to direct questions from this committee, Mr. George Savoury, Senior Director of Family and Children's Services for the Government of Nova Scotia, made statements that were inaccurate and misleading. First, he referred to section 88 of the Children and Family Services Act, whereby the Minister of Community Services is mandated to appoint an advisory committee to review the CFSA and its implementation on an annual basis, as if this committee were an ongoing reality. The truth is that since the act came into being in 1990, the committee had only been formed twice, in 1993 and 1996. In December 2005, exactly six months after the meeting of the Senate Committee on Human Rights in Halifax, another advocate, Ms. Marilyn Dey, and I took the minister to court to force him to follow this section of the act. We won, but it is important to understand the mindset of this government. It is important to note that the legal argument put forward by the provincial government was that ``the Crown only owed its duty to the Crown,'' and that individual citizens like Ms. Dey and I did not have the right to bring the government to court to obey its own laws.
Mr. Savoury misled this commission on a second subject by saying that children 12 years of age and older have access to legal counsel in children's services, children's aid and government agency cases. It is true that the Children and Family Services Act states that this should occur, but we have no knowledge of any child, 12 years of age or older, who has been able to obtain this legal right of independent legal counsel. It is only when children are criminalized, sometimes by individuals within the very system that is supposed to be looking after their ``best interests,'' that they are allowed criminal lawyers. However, the provincial government has stymied all attempts of which we are aware, when children attempted to get lawyers for their cases against the Minister of Community Services. Knowing this, we were surprised when Senator Oliver, assuming this right was being allowed, suggested a lower age of eight or nine years of age.
Third, Mr. Savoury praised the newsletter the Voice of Youth in Care, written by youth under the care of the Halifax Children's Aid Society. This publication represents no voice at all, for the true voice of the children that shone through in their original publication, entitled Listen! The System Does Not Work for Us, has been suppressed and censored. We believe that the current newsletter is no more than a glitzy, glossy propaganda tool for the Minister of Community Services.
Thelma Gillespie, Representative, FUJA Unity: My name is Thelma Gillespie and I will continue to itemize our concerns.
When Mr. Savoury spoke before the Senate committee in June 2005, he mentioned a recent presentation of grandparents before the legislature's community services committee. While speaking on this, he glibly mentioned, ``Most of these situations occur because of divorce proceedings.'' It so happens that apart from my advocacy work on this subject, I am a founding member of the Grandparents Rights for Nova Scotia Association, the very group to which Mr. Savoury was referring. As a member of this group, I want to make it clear that our concerns stem not only from families torn asunder by divorce but also by the actions of the Minister of Community Services when children have been unjustly apprehended.
In conjunction with the rights of the grandparents, I would also like to make it clear that contrary to Mr. Savoury's comment that ``the Children and Family Services Act requires that we always consider relatives as our first placement for children, as opposed to foster care or residential care,'' this is not being done. In fact, relatives who come forward to request placement are often subjected to shoddily-executed assessments that are then used against them.
Both Ms. Youngson and I had such assessments in our cases reviewed by well-respected psychologists with doctorates who were both appalled by the biased, unethical and improperly performed assessments. Though we both filed formal complaints to the Nova Scotia Board of Examiners in Psychology, both complaints were dismissed, with no right of appeal. In addition, we were both informed in writing to not bother asking any questions concerning our cases because no replies would be forthcoming.
Mr. Savoury also made mention of the ombudsman's office, about which I have a few things to say. Ms. Youngson and I had three lengthy meetings with officials at the ombudsman's office. At the time, the office was advertising on websites and in pamphlets that it was representing children in care. Through meetings with officials, and by researching their financial statements, we discovered that they had not been doing so. We also discovered that they did not have a mandate and did not have any desire to get jurisdiction over the children in foster care, where the youngest and most vulnerable children are placed. We have no faith in the ombudsman's office. For years, the officials sat on allocations of money that were to be spent on overseeing the rights of these children in the care of the state, but they chose not to take jurisdiction. Since we brought the financial reports to their attention, they have ceased to itemize a specific category for children in their financial statements.
Since these meetings at the office of the ombudsman, we have obtained government documentation that states that our children are currently being sent out of the province to Alberta and out of the country to Utah. Since the ombudsman's office is not doing its job looking after our children in the province, we have no reason to believe that it is looking after the rights of those children who are sent out of the country.
Senators, we understand that you would like to take a good report back to the international community concerning the rights and well-being of our children in the care of the state, but you also have an obligation to bring a balanced report that includes the voices of the families who have experienced the system first-hand. We are not government representatives; we are families who love our children. We are here to inform you that in Nova Scotia, nothing in our system is working concerning our children being apprehended by the state, and neither are any of the checks and balances that are supposed to keep this system accountable. Currently, we are lobbying for a general inquiry into Family and Children's Services, the Children's Aid Society and the government agency in the province of Nova Scotia. We have submitted a number of written documents to support and clarify the statements made in this presentation.
We have submitted a number of documents to support and clarify the statements made in this presentation. We implore senators to read these documents and we encourage you to access the blog address provided in this documentation.
The Chairman: Thank you.
Now, we will hear from Mr. Marsh and Ms. Lee, who have brought their daughter, Katie, with them today. Mr. Marsh, please proceed.
Robert Marsh, as an individual: Thank you for the invitation to appear before the committee. We will speak to citizenship rights for adopted children. We are the proud parents of an adopted daughter, Katie, and we thank you for allowing her to sit in on today's meeting.
As senators are aware, the Citizenship Act discriminates against foreign children adopted by Canadians because it requires them first, to establish permanent residency and second, to apply in order to become Canadian citizens. In contrast, biological children of Canadians are automatically Canadian citizens, as well as persons who happen to be born in Canada, even if they have no familial or personal ties to the country. Bill C-14, currently before Parliament, seeks to address this problem and aims to reduce the distinction between eligibility for adopted children and other children of Canadians. We have been pleased that all parties seem to recognize that proposed legislation to address citizenship rights of adopted children is long overdue.
Unfortunately, the current bill has very serious flaws. We think these flaws arise, at least in part, because of a fundamental misunderstanding of the central issue. The bill seems to be aimed at reducing administrative burdens, which fall upon adoptive families, and while these burdens are real and unfair, they are only part of the problem and not the central issue. To us, the central issue is one of fundamental rights and that is why we are speaking to you today.
Children legally adopted under the laws of the provinces and territories of Canada, are in all legal, emotional and other respects, full-fledged children of their families. The one disturbing exception is with respect to citizenship. When it comes to citizenship, adopted children are treated as second-class members of their families.
It is our understanding that both the Canadian Human Rights Tribunal and the Federal Court of Appeal have ruled that a citizenship process that treats people differently based on adoptive status, other than simply to verify that the adoption is in fact legitimate, is unjustifiably discriminatory. Unfortunately, Bill C-14 only partially addresses this unjust discrimination.
Bill C-14 sets out to alleviate the problem created by having to apply for permanent residency. It also adds that the visa officer or some other federal official will have to redo the work of the province and after the adoption, reconfirm that the adoption has been in the best interests of the child. Secondly, the official will have to deem that the adoption has not been an adoption of convenience aimed at getting around the citizenship laws. This means the bill will continue to discriminate. After the properly qualified provincial and territorial authorities, who also have a constitutional mandate, have approved the adoption, the child will be subjected to a second ``best interests of the child'' test. Before the child is granted citizenship this test is performed by federal visa officers who are not qualified for such a task. If the federal visa officer deems that the child is illegitimately adopted, the child will be punished again by having his or her citizenship denied.
Thirdly, the bill requires that an adopted child, or someone on his or her behalf, apply for citizenship. This is in stark contrast to biological children who simply have to make an application for proof of citizenship. Even though that may be only a small administrative difference, we think, from a symbolic point of view that is appalling. This means that, ironically, the bill sets out to protect an already adopted child by sometimes denying his or her citizenship. This sends the bizarre message that, in certain cases, Canadian citizenship is somehow dangerous or harmful to the child. It also seems to place protection of the Citizenship Act and the process of applying for citizenship, because of the excessive concern about the adoptions of convenience, ahead of the best interests of the child. While we admit that there may be some problems with adoptions of convenience, the interests of the child should be paramount.
Consequently, adopted foreign children are still subject to the risk of unjustifiably and unfairly denied citizenship, even if Bill C-14 does pass. We think this is contrary to the Canadian Charter of Rights, contrary to the Canada's international obligations with respect to adopted children under both the Hague Convention and the UN Convention on the Rights of the Child and is contrary to common sense and decency.
Katie is our daughter, end of story. There is no reason Canada should have treated her differently.
Agnes Lee, as an individual: At this point, I will just answer questions.
Senator Munson: How many families or adopted children are affected by this procedure? How many have to go through all this paperwork, as you described, to become second-class citizens?
Ms. Lee: For the past decade, the annual rate of adoption is about 2,000 per year; that has remained unchanged. If you talk to the authorities, there has been an increased interest in international adoptions, partly because people recognize that this is a very appropriate way to have a family and also because of adoptions by celebrities.
Each year, about 2,000 families have to go through this unnecessary paperwork. We do not mind the paperwork as long as it is in the best interests of the child. This paperwork, to apply for citizenship is ridiculous and discriminatory. We are here today to speak to you because this process violated my child's rights.
Senator Munson: In my previous life, I was a reporter, I worked for a national network, and I did the first stories on the adoption of children from China. At that particular time there were French Canadian families who were the first ones to adopt children. I found the process worked well in China.
From that time and until now, families are still going through this paperwork to become Canadian citizens.
Mr. Marsh: Yes, families are still subject to that paperwork.
Senator Munson: It is hard to understand a political mind let alone the bureaucratic mind. This process seems to be a labyrinth that every family has to walk through. As a reporter, one feels that this human-interest story creates awareness and helps families, but in the meantime, it is a demeaning way of going through the whole process.
Mr. Marsh: We have spoken to the Standing Committee on Citizenship and Immigration and everyone seems to have the reaction that this is just common sense. Why do we not just do it?
From the bureaucratic mindset, it is the nature of the job. I do not mean this to be critical of individuals, but their focus on the process and on the details can make them lose their way. Let us step back and think about what concerns us here. I am an accountant and when I see the focus on the adoptions of convenience rather than on the majority of cases and the rights of children, it is like auditing and counting the petty cash because it is easier to do rather than focusing on larger issues. It is a matter of drawing back to the perspective to what is important and dealing with those exceptional problematic cases as the exceptional ones, not the standard ones.
The Chairman: You have used the term ``adoption of convenience.'' That, as I understand the term, is when someone sets out with the purpose of getting into Canada and uses adoption as a method that can release resources and might allow other family members to immigrate. This method usually concerns older children.
Mr. Marsh: Generally, it does concern older children. The statistics show that there are 100 such cases a year. We understand that is a problem. We think it is a matter of weighing the degree of that problem. Certainly, if a family is willing to actually give up legal parentage and have a child adopted, ``convenience'' is a small term. The worst thing that has happened, if one errs on the side of an adoption already approved by the provincial authorities, is that someone, anxious to get to Canada because of the better life here, has in fact done so. There are issues of possible queue jumping. On the other hand, if you mistakenly deny entry, and we know of some cases where there have been problems, the devastating effect on the family is so great that the cure is almost worse than the disease. We think that the burden of proof should be on the authorities for the denial, and that the basic standard case should be making citizenship automatic if it is a legitimate adoption.
Senator Munson: A Charter challenge is a daunting process. Is it simply making more sense of Bill C-14 to allow the child to become a citizen?
Mr. Marsh: A Charter challenge is a daunting procedure. I understand that there is such a challenge in British Columbia, although I am not sure whether the funding for that challenge will continue much longer.
In general, it seems like a waste of public resources to have to go through that process. It would be simple to make it automatic and prevent children from falling through the cracks. It could be done much more simply. We have made various suggestions about the bill and the regulations. We have been led to believe that the regulations would get the bill to where we wanted the legislation to be, although we have not seen that in the draft regulations. Our initial hope has run aground on the rocks of disappointment several times.
Senator Poy: Mr. Marsh, you said something about ``illegitimately adopted'' children. I do not quite understand that because as far as I know, adoption is legitimate.
Mr. Marsh: That is a good question, because in a certain way I am not entirely sure what I mean by that phrase. That is the consideration of the immigration and citizenship authorities. Once an adoption is finalized under the laws of Canada — and there are special cases in which adoptions occur where that is not the case — it is, as far as we can tell, and in all other respects and, viewed as legitimate and irrevocable. It is done; that is the new family, and it should not be challenged. That is a very good question, but I cannot really answer it Senator Poy.
Senator Poy: Do you mean that term has been used?
Ms. Lee: The description of an adoption as illegitimate is a term that the CIC has used in describing adoptions of convenience. These cases seem to have been the major obstacle to providing automatic citizenship. The usual reason that the CIC gives us is national security. Katie could not be a threat to anyone.
The second reason is concern about child trafficking. That is clearly an important issue, but once a child has been adopted, it is no longer an issue. Disallowing adopted children automatic citizenship will not prevent them from being trafficked, because that would have already occurred, if that were the case. That is why provincial governments put all adoptive parents through very rigorous procedures. It took us 18 months to go through all the paperwork, the social worker visits and RCMP, Interpol and doctor checks. We had to provide letters from employers and eight letters from family and friends saying that we would be suitable parents. All of the screening to ensure that the adoption is legitimate has already been done. I do not understand when the CIC says that while adoption of convenience is the major reason why it cannot provide automatic citizenship, it is a done deal; it is too late.
As far as we know, the vast majority of international adoptions are not classified as such. This penalizes the vast majority of children, largely orphans, who have already faced discrimination in their country of birth. We bring them to Canada and they are told once again that they are not worthy, that they are not like biological children of Canadians, and that is just not acceptable to me.
Senator Poy: You said that CIC talks of adoption of convenience. Mr. Marsh, you mentioned that some people might want to come to this country as a convenience to be a Canadian citizen, but little children do not do that. Is there an age limit on adoption?
Mr. Marsh: One could probably be adopted legally as an adult, but no one has argued that it should be other than for people adopted as minors. It could perhaps be argued that there should be a limit of 21 years, which is the age required to drink alcohol in the U.S.; or 18, which is the age required for voting; or 16, which is the age required for driving; or 14, which is the age limit for the Young Offenders Act. That is more a question of the definition of ``child'' rather than of the fundamental rights of children.
Senator Poy: There is currently no legal age limit?
Ms. Lee: As far as we know, there is not, but in the Hague Convention on Intercountry Adoption there are clear guidelines on age cut-offs and the definition of ``children.'' We would be satisfied with those definitions, because they are set up to protect children. Not granting the children automatic citizenship cannot provide these children with more protection, unless having citizenship is somehow harmful. Presently, internationally adopted children enter Canada as permanent residents. If CIC denies them citizenship, they will stay as permanent residents on the argument that this somehow provides them with more protection; that is ludicrous.
Mr. Marsh: One of the dangers of Bill C-14 is that if citizenship is denied, residency will likely be denied. That is why the proposed amendments to the bill with regard to appeal are so important. It is the classic situation of risk and reward. You will get more upfront reward if you are looked upon favourably by CIC, but if you are not, you could be left in the lurch. The families of legally adopted children will be unable to bring them into the country; it could result in even more tragedy.
Senator Kinsella: Ms. Youngson, what does the acronym ``FUJA'' stand for?
Ms. Youngson: It stands for Family Unity and Justice Advocates.
Senator Kinsella: What is the situation in Nova Scotia child protection unit? In the province of New Brunswick, there have been some bad experiences over the last 18 months. Indeed, some children were lost. What is the situation in Nova Scotia? Does that fall within the purview of your work?
Ms. Youngson: You are asking me a very broad, general question. The bottom line is that nothing is working as it should, and neither are any of the checks and balances that are supposed to be in place when families or parents are looking for recourse.
Senator Kinsella: The difficulty of coming to this branch of the Parliament of Canada is that we do not have jurisdiction over what goes on in the Province of Nova Scotia. I am curious to learn what you think this committee is able to do.
Ms. Youngson: My understanding is that there is a children's section concerning human rights about which you have to report to the UN; is that correct? My understanding is that this concerns children in the care of the state. I do not know of any children who are in the care of the state under the federal government; provincial governments have that responsibility. The bottom line is that you met with all the government representatives when your committee came to Nova Scotia. You heard what they had to say. We do not agree with anything that the provincial representative said concerning the children's state. We are concerned with the Children and Family Services Act.
One of the main reasons Marilyn Dey and I took the Minister of Community Services to task over section 88 is because it is just the tip of the iceberg. We have been court observers for years and we know the act. Both Marilyn Dey and I applied to be part of the committee and of course, we were blocked even though we had the qualifications. Recently, they posted an advertisement in the paper calling for the public to make submissions to the committee. What can I tell you except everyone like us had something critical to say about the government? We were originally given communications saying call such-and-such a number and we will schedule in a time. When these people phoned, they were given new qualifications to meet with the committee. One of the new qualifications was that if they wanted to talk to this committee, they had to find the part in the act to which it applies. Number one, normal citizens of Canada do not know the act. The job of the committee is to put two and two together. There may very well be things that the act does not cover. There may be things missing in the act. Maybe we should make some new amendments. When I talked to the person who was scheduling I was told, ``Linda, you have made such wonderful submissions. You have pointed to all the specific points of the act that concern you. You do not need to come to the committee.'' I said, ``Oh yes, I do, and oh yes, I will.'' At this moment, we still have not been advised of our scheduled meetings. I will believe it when I see it.
Senator Kinsella: Is this a review on the Nova Scotia Children and Family Services Act?
Ms. Youngson: It is the reason why Marilyn Dey and I took the minister to court. It states, ``The minister shall, on an annual basis, put together a committee to review the Children and Family Services Act and its implementation.'' There are supposed to be two parents on the committee. I say that it should include grandparents, too. It says, ``Parents who have had their children in care or have had their children in fear of care.'' What I can tell you is that the people who were appointed were all the inside boys and girls. As I said, both Marilyn Dey and I have a lot of knowledge of the act and experience as to how this act is implemented. We applied because of our experience in advocacy work, but we were denied. People who did not even know the act existed said, ``They gave us this piece of paper. I think it is the act. They told us to read it.'' Those people were appointed to the committee.
Senator Kinsella: To find a link between this particular piece of legislation under the jurisdiction of the Nova Scotia legislature and our committee one might look to the United Nations Convention on the Rights of the Child. This committee is seized with that convention. The periodic reports submitted by Canada are prepared with input from all jurisdictions, which obviously includes the Government of Nova Scotia. The Department of Canadian Heritage has been putting together the Canadian report with all the components from the various jurisdictions. When that report is tabled at the United Nations, the committee that reviews it is anxious to hear from non-governmental organizations. When you look at the Canadian report, look at section such-and-such that deals with Nova Scotia.
The Chairman: I thank you for that comment. Our task is to look at the United Nations Convention on the Rights of the Child. When we went to Nova Scotia it was to contact as many people as possible who understood the United Nations Convention on the Rights of the Child and who wished to speak to that issue. Consequently, our list included some academics, some NGOs, and probably more of the provincial people who have been part of the process. Part of our task is to educate people about the convention and the ways and means that they can make input to it. You have quite properly put it forward in that context. I thank you for that.
Senator Kinsella: Ms. Gillespie and Ms. Youngson bring forward the fact that real life issues are falling through the cracks in terms of the convention. We are indebted to you for that.
I would now like to go to Dr. Lee and Mr. Marsh. First, I wish to thank both of you and your charming daughter for coming before our committee and sharing your story because it speaks to the story of many Canadians. That is an excellent example of active Canadian citizenship. It is not easy to come to do those things. In many ways, the three of you are heroes. Thank you for giving us a heads up on Bill C-14, which is in the other place. When it gets here, we will draw on this testimony.
Mr. Marsh: We are not sure to which committee it will be referred, but we hope it is this one.
Senator Kinsella: If it gets through the House of Commons, it will come to the Senate and we will make a thorough study.
Do you think that the process of adoption used by the provincial jurisdictions should be inclusive of the citizenship application? Effectively, at the time of going through the adoption process, the citizenship process would be included. From a public administration standpoint it would not take a rocket scientist to put the two together.
By way of metaphor, and correct me if this is a bad metaphor, once the adoption has been completed, citizenship occurs automatically. It would be no different from a baby being born in a Canadian hospital. Right after the baby's birth a birth certificate is issued by the state and with that certificate comes automatic citizenship. This is simply a question of the federal and provincial authorities getting together. Do you see that as an effective model?
Mr. Marsh: Bill C-14 recognizes that as a model in Quebec. A separate clause that deals with Quebec says that with respect to the best interests of the child and true parent-child relationship, et cetera, everything except the adoption of convenience piece, that they simply accept the letter from Quebec. There is that extra issue of why, and there are some administrative reasons for it, but it is rather odd that there is that different treatment. In effect, that treatment should be extended to all provinces.
In a certain way, protecting the child and making sure that a child is not subject to an adoption of convenience is already part of the adoption process. Provinces might resist having more burdens put on them, but that is not so because they are already doing that job. It has been mentioned that the one thing they do not have is information about whether the family has been trying to get a child to Canada through other means and maybe adoption is the last route. That is the classic so-called adoption of convenience where the family has tried to bring the person into the country through the family sponsorship program and has failed. Their last recourse is to have an aunt or brother adopt the person. It would be very easy to make that a piece of information that is sent to the provincial authorities. It is very similar to the responsibility for a police check on the prospective parents and checking with federal authorities such as the RCMP or CIC to see if there is any dubious information. That would be part of it from a jurisdictional process. It is important that at the end, it is not so much an application for citizenship as a properly done adoption automatically confers citizenship so nobody slips through the cracks.
Senator Dallaire: Being a child of your family by birth is one side, and the other side is by adoption.
Mr. Marsh: There are two ways of getting to the same place.
Senator Dallaire: Let me tell you that even birth is not a guarantee of citizenship. I am the child of a war bride, born overseas, and I had to fight my way through the citizenship instrument. I was already a captain in the army when I had that fight. There are still thousands of children born to Canadian fathers who are not recognized as Canadian citizens, because those were the rules in those days. The exercise you are going through is not unique in that dimension.
We find the immigration service quite mean in its analysis. I am not surprised at the responses you are getting. It seems to be an attitudinal or a corporate culture that exists in regards to people who fight for their fundamental rights. I am leery of the argument that because of adoption a person is put through the gears, some of us have been put through the gears in other ways.
If the rule is there for the exception, that is, adoption of convenience, is it possible that they are doing that to protect the children that are being used for adoption for convenience? If that rule is bypassed, or there is no method to check that out, would that not open the floodgates for those who try to abuse the system? To bring that together, do those who go through the adoption process of adoption of convenience not go through the same thing you have to do provincially?
Mr. Marsh: In most cases, yes, and that is why it is hard to get an adoption of convenience through that route.
Your questions and comments tie together. The bureaucratic hassle, for children born abroad to Canadians is a problem because these people have to prove that they are a citizen versus having to apply for citizenship. Mr. Davidson at CIC gave me an argument about why it is important to have to apply for citizenship because it offers some protection for children. I found it very confusing and mind-numbingly obtuse in the end and did not buy it. However, that ties into your question about whether the concern for adoptions of convenience could actually be there to protect the children. How could it ever be in the best interest of anyone? Frankly, I am a very proud Canadian and I refuse to believe that denying Canadian citizenship protects anyone. I cannot believe that Canadian citizenship would not be in the best interest of practically anyone. How denying citizenship is supposed to protect children or is somehow harmful to children in any situation is, frankly, flabbergasting.
As for the floodgates problem, in those rare cases where it is a clear case of trying to get around the rules, it is actually pretty easy to tell. In those cases, there has been a long history and it is clear that normally there is not a family relationship and there is not a true loving relationship with someone to bring them in, et cetera.
The problem is you do not want to give a whole bunch of power to make ``mean'' decisions in the case of borderline cases that have devastating effects to families and individuals. You do not want to give all that power to protect a bureaucratic process. You can come to Canada on vacation and give birth to a child, and that child will be Canadian. That rule has been there all the time. There has not been a floodgate of that happening.
Senator Dallaire: I agree that becoming Canadian is something many people want.
As I faced hundreds of thousands of orphans in a country in Africa, where everyone wanted to export them to other countries in their best interests, ultimately that was not the solution. The solution was to keep them home and try to reintegrate them into their own societies and help them rebuild their society. Living in that country is not necessarily evil just because they have had an evil circumstance. There are parameters of protection of the individual child with the people around the child that concerns me. That is being played on in regards to those who want to abuse the system. How would we get around, or do you think we should, people abusing the system?
Mr. Marsh: There are not hundreds of thousands of adoptive parents in Canada waiting to take those children, so there is a maximum cap on it from that point of view, although there are several thousands a year. The rigorous process and the real interest of the child are part of that process of adoption in the first place, and that acts as a natural cap. In fact, as part of the international adoption process, in Canada anyway, the continued linkage of the child to the child's culture of birth is paramount. It is very important. The social workers ask about that aspect and it concern the authorities. In most cases as well, in order to have the adoption approved in Canada, there has to be the right workings and coordination with the foreign country. In the case of China, for example, that is very close. In our case, it is a little easier to keep those cultural links, obviously.
Senator Dallaire: My other question is about children who are moved around under the child protection system. In Nova Scotia, is there a sophisticated methodology of follow-through from one family to another with the reasons why they are being moved around? Is there a psychological assessment? Do they have access to psychologists or psychiatrists? I am taking for granted by the arguments we have heard that children need warmth and love. Are the children who have experienced trauma obtaining that support?
Ms. Youngson: As far as assessments are concerned, I have covered the concerns we have in the documentation I filed with this committee. We have no confidence in assessments at all. We see that mental health care providers in Nova Scotia are eager to maintain the lucrative contracts they signed with the government. We had a well-known and respected Ph.D. psychologist conduct a public speaking session for us, and she spoke very candidly about her concerns with respect to the children's aid services government agency responsible for these children. Ms. Gillespie attended that presentation as well. The psychologist stated that as much as there is a problem across the province, there is a specific concern in the Halifax-Dartmouth area. We do not have any problem understanding why there is a great concentration of mental health care workers in the Halifax-Dartmouth area who need to be fed and who need to pay their bills.
Two different Ph.D. psychologists reviewed two assessments completed in different cases and they were appalled. There was nothing good, ethical, right or correct about those two assessments. Let me provide an example, and I will try to explain it such that it is as understandable as possible.
In one of these cases, a test was administered and our psychologist stated that they did not have the right to administer that test. Before administering that particular test, one must be administered a level 1 test. If the level 1 test indicates there is a problem, then and only then does one have the right to administer a level 2 test. A level 2 test has nothing normal in it at all. It does not matter to whom the test is given; the person will end up with a negative psychological label. If you do not give the level 1 test that clarifies or verifies that you have the right to administer the level 2 test, what are you doing? That is a deliberate attempt to put a negative psychological label on a person.
The Chairman: Senator Dallaire, we are 10 minutes behind and we have the next panel waiting. As usual, we are short of time.
I want to thank our witnesses, Ms. Youngson and Ms. Gillespie, for attending. You have made your point that the systems are in place, but they need to be implemented appropriately, if Canadian citizens are to profit from that law. That is certainly on the record, and we thank you for your appearance here today.
We have also given you a suggestion that with respect to child protection issues, there is a report that goes to the United Nations and it can give you a further avenue for expressing your concerns where provincial authorities are in question.
Dr. Lee and Mr. Marsh, you have made a compelling case with your daughter here that we need to administer specific laws. In many cases, it is rough justice because we must anticipate many positions. Your point, as I understand it, is we should not prejudice people who rightfully and appropriately wish to adopt the view that children should be factored in. More importantly, we are here looking from the child's point of view. If we are trying to treat adopted children equal to natural children, we must make our utmost efforts. You have brought Bill C-14 and the adoption process to our attention. Equally, protection cases are about children. If we want to treat children fairly, we must factor in their families, including grandparents, et cetera, if we want to do justice for the children.
Thank you for the short time you have had here to at least start a dialogue with us.
Honourable senators, our second panel of witnesses is before us. We are looking at developments since the issuance of the committee's report, A Hard Bed to Lie In: Matrimonial Real Property on Reserve, tabled in the Senate on November 4, 2003.We have issued some follow-up reports. Our concern is with the application of the Canadian Charter of Rights and Freedoms as it relates to on-reserve matrimonial property. Several of these witnesses appeared before us previously when we were working on our initial report as well as on follow-ups. There have been recent developments with the federal government and the Assembly of First Nations on this issue.
From the Assembly of First Nations we have Mr. Bob Watts, Chief of Staff and Ms. Debra Hanuse, Director of Law and Legislation. From the Native Women's Association of Canada we are pleased to have Ms. Beverley Jacobs.
Beverley Jacobs, President, Native Women's Association of Canada: I would like to thank the Senate for following up on this very important issue. We want to applaud the federal government for enabling the Native Women's Association of Canada to participate fully in the ongoing consultations regarding the on-reserve matrimonial real property issue.
We want to ensure that we have a law that contains a practical and meaningful solution for Aboriginal women. The women in our communities have told us that this issue affects their children, their grandchildren and future generations and that any solution must integrate the issue facing our future generations.
We have been having consultations since the beginning of October at the national, regional and grass roots levels. We want to ensure that the voices of Aboriginal women are heard on the solutions to this issue. We are creating safe places for women who have personally experienced the lack of matrimonial real property legislation to speak about the solutions. Within the first month, we held five by-invitation consultation sessions. We have had six public hearings in four provinces and two territories during the first month of our consultations. Individual women, their children, and elders have been able to present their views either verbally or in writing. Our sessions will continue until December.
We also have a provincial-territorial member association in every province and territory. These associations will hold their own autonomous consultations — autonomous in the sense that they will have their own sessions within their own communities. The sessions are progressing very well. We are gaining valuable information and insights from the women who attend them. We find that the women are usually the custodial parents of the children. The women must often abandon all their family assets in order to have a healthy home. When they experience marital breakdown, they often do not obtain a legal divorce for many years following separation. We also hear from these women that there are strong cultural and traditional laws that are not being applied in the communities, and that these solutions and approaches need to be taken into consideration when we consider solutions.
This is not an individual issue. A woman is affected when she has to go through the process, but it is not just the woman. It affects the woman's own family, her husband's family, her children and her community. We want to ensure that it is the community's responsibility.
We are participating in a joint working group with INAC and the AFN. We want to ensure that the valuable solutions and information that is coming from that joint working group will inform the legislated options and solutions.
We are finding that this process is increasing education and awareness among all Canadians. We know that the media, for the first time, is showing a strong interest in this work. We know that the views of all Aboriginal women are important. We have made arrangements for women who were unable to attend in person. We will also be holding various focus groups in November and December, which will focus on various unique situations. We want to ensure that these solutions are part of the process in building the legislated framework.
When we first came to the Senate asking for solutions, we said that a year would be the time frame. Unfortunately, it is now six months from when we started this process and we are finding it very difficult to meet INAC's deadlines. We are feeling a little frustrated, as we sometimes do when having to follow government deadlines.
We are trying to ensure that these consultations are done in a very respectful way. This legislation, if passed, will take into account the inalienability of reserve lands. We do not want the lands and territories to be divided up and taken from off-reserve land as fee simple lands. We are not talking about dividing any lands or territories, because of the traditional aspects of the land tenure systems.
We also want to ensure that there is a safe place for future generations. As Aboriginal people, we have a collective interest in ensuring that our original lands and our treaty lands are protected for our future generations. We want to preserve our traditional relationship with our lands and reclaim our way of being, because that is our relationship with our lands and our communities.
Those are the issues that we are hearing loudly and clearly from the women with whom we are consulting.
Bob Watts, Chief of Staff, Assembly of First Nations: Thank you very much, Madam Chair and members of the committee. I would like to express the regrets of our National Chief, Phil Fontaine, who could not be here today. He is in New York City doing another part of his job, that is, shoring up support for the United Nations Declaration on the Rights of Indigenous People.
Much of that declaration speaks to the issues that we are talking about here today and in many other forums.
The Assembly of First Nations is a national organization representing First Nations citizens throughout Canada regardless of age, gender or place of residence. With me is Ms. Debra Hanuse, the acting director of the Assembly of First Nations law and legislation unit.
We offer our appreciation to the committee for your report of December 2004 entitled, On-Reserve Matrimonial Real Property: Still Waiting. We would like to extend our appreciation to you for your earlier report of November 2003 entitled A Hard Bed to Lie In: Matrimonial Real Property on Reserve.
As President Jacobs mentioned, we are also pleased to report to you that that federal government has embarked on a nation-wide process to address on-reserve matrimonial real property issues. On July 21, the minister announced a nation-wide consultation process on matrimonial real property. We are pleased to report that the federal government has heeded your recommendation to involve First Nations people in this nation-wide consultation process.
Minister Prentice has invited the AFN and the Native Women's Association of Canada to identify options to address the legislative gap currently existing with respect to reserve lands.
We are pleased to be involved in the search for solutions to this problem; however, we wish to express concerns about the time frame established by the minister for completing the nation-wide process and tabling legislation on this issue.
The minister's process is divided into three phases and will culminate in the tabling of legislation in the spring of 2007. Phase 1 is a planning and preparation phase, and it began in June of 2006 and ran until this past August. Phase 2 is the consultation or dialogue phase and is set to run from September to January of 2007. We have not started that process in our regions. We have just received our allocation of funding. We are in the process of finding places, reserving hotel rooms and community centres to hold the consultations. That is part of our big concern. During this phase the AFN, the Native Women's Association of Canada and Indian and Northern Affairs Canada will engage in dialogue with our respective constituents to identify options to address matrimonial real property issues.
Phase 3 is the consensus-building phase set to begin in June 2007. During this phase, ministerial representative, Ms. Wendy Grant-John, will work with the AFN, the Native Women's Association of Canada and Indian and Northern Affairs Canada to facilitate consensus-building among the parties on options identified during the current phase.
In your December 2004 report, you recommended that we complete our consultations in a timely manner. We support this notion; however, we are concerned that the nation-wide process established by the minister is too short and rushed. We want to associate ourselves with processes that are respectful and that produce respectful results. We are committed to this process but are concerned about the time frames that are imposed upon us. Above all, we want to ensure the adoption of workable and enforceable solutions to on-reserve matrimonial real property issues. We know this is a tough issue, and the adoption of a solution or solutions will only happen if people feel comfortable that they have been consulted and have had input into the process. People need to feel that their communities are supportive of any option that is chosen.
We are not convinced that the proposed time frame for this nation-wide process will produce workable and enforceable solutions. The issues are complex and involve constitutionally protected section 35 rights and other constitutional considerations, all of which require a balancing of the collective and individual interests of First Nations communities and citizens. We must address numerous ancillary issues; nevertheless, we are pleased that the federal government is finally addressing this issue.
With respect to solutions, what solutions are required to address this legislative void? In our view, the solutions do not lie in imposing provincial matrimonial real property law. Apart from questions regarding the constitutional validity of this option, there are numerous other practical problems. The solution does not lie in tinkering with the Indian Act. The act is the source of many of the problems with which First Nations and the federal government are grappling. We will not solve these problems by wall-papering more amendments over a flawed and crumbling piece of colonial legislation. The solution lies in recognizing and implementing First Nations jurisdiction concerning on-reserve matrimonial property rights. This requires community input for community solutions. We believe that this can be achieved through cooperation between First Nations and the federal government, and we welcome an opportunity to work together with the Government of Canada and the Native Women's Association of Canada through the nation- wide process to achieve this objective.
The Chairman: This is not a new issue, and it remains a difficult issue. On the one hand, it is how the on-reserve lands are held and managed. On the other hand, we heard in 2003 the dilemma particularly for women, and it is today as it was 2003 and 2004 and 2005. It did not start in 2005; it was there a long time ago. As Senator Nancy Ruth often reminds us, there are competing rights. How do you propose to attack this issue of the community of the land and the legitimate needs of women and children today?
The solution will not be any easier on-reserve than it was off-reserve for the rest of us, so what is the stumbling block? I understand from your point of view perhaps the time frames might need to be extended. That is a time frame.
Are you making use of clear models? Are the models sufficient to accommodate the community and the individuals?
Since our 2003 report have any reserves moved on these issues for their own people?
Ms. Jacobs: My first comment is that women off reserve have had access. That is one of the main issues: Aboriginal women do not have access like non-Aboriginal woman off reserve. I think that is the key human rights violation. I cannot say for sure what is happening in communities right now, unless we had a detailed scan of which First Nations communities have actually moved forward with any solutions on MRP. I know that some have First Nations Land Management Acts that refer to MRP codes. I do not know about an analysis of how that is working. Part of the difficulty is implementation and access. I think that must be included in our work, even if there is legislation or a process in place. Is it actually accessible to Aboriginal women? In the first few sessions, women are saying this is fine but wonder how it will help them. Right now, the women do not have legal rights. They do not have any resources. The legal aid system does not help them. These important issues influence this work. I think one of the main issues is the fact that this is finally coming forward and action will take place. This discussion was never addressed with as high of a profile as it has now. I find that it is a positive step forward, that education about this issue is coming to the forefront because it is affecting mostly Aboriginal women and their children.
With respect to individual rights to the land and the collective rights, that has always been an issue. When the women talk about their rights within the community, they have always gone back to the traditional law, which states that the land and the home belong to the women. This is what our elders have said and this is what our teachings have told us. That has been a very consistent message from many different nations — Mohawk, Cree, Ojibwa, Mi'kmaq — these are all different nations. That has become a very consistent message.
We are living in two different systems. We are living in this Canadian Eurocentric legal system, and then we also have all our traditional, customary laws. It is our traditional, customary laws that are impacted by this Canadian Eurocentric system.
For the last several years, the Native Women's Association of Canada has been trying to bring back the balance that we once had in our communities. We want to bring back the relationship that we have to our lands and our territories. I do not know if that means that something must be put in place in order for women's rights to be respected and if the Canadian Eurocentric system has to assist in that process. We are in a dilemma because we are caught in that system.
I would love our communities to follow our traditional values and our traditional laws. Unfortunately, the colonized system has affected our communities. That is the dilemma that we are in. That is the movement that we are making into working toward the traditional — because it talks about everything, it talks about our collective, who we are as a nation and how we fit in as individuals within that collective.
Mr. Watts: If I may, I support what Ms. Jacobs has said in terms of the type of change we are seeking. It is not a simple as taking out a few words from the Indian Act and replacing them with something else. We are talking about trying to decolonize ourselves at the same time. This will not be an easy process. To look at it as sort of a one-off type of thing may end up sending the wrong message to our community people. Many of the issues we are dealing with are manifestations of the incredible poverty our people are in, as well.
If you look at other communities in Canada that are in desperate poverty, and ask, how matrimonial real property rights operate at Jane and Finch, I think they operate differently than in Rosedale. Some of it is access to justice. Will a federal legal aid system help Aboriginal men and women sort through these difficult issues? What are some of the support systems that will be put in place? Will a section 95 court help sort through these difficult issues? How do we make room for the re-emergence of our own values, laws and jurisdiction at the same time?
Senator Dallaire: It is a terrible state of affairs that your nation has found itself subservient to another one — be it Eurocentric or Christian or whatever. In so doing, you find yourselves humiliated in having to come and discuss these things, whereas they should be intrinsic to your own societies and solved within your own societies according to what you believe to be correct. The history of our influence on your society has created some traumas that are being brought here today.
I tend to agree entirely that a legal system imposing changes back to the social norms of your own society is not a progressive instrument. However, if you are evolving your cultures back to the norms as you have described them, I turn to you, Mr. Watts, and say, what is your plan? If you do not have a law amending it and an instrument like that, how many generations will you take to bring that decolonization back on line? How many casualties will you handle in the interim? If it is to be respectful of your traditional instruments, how can you conceive of bringing in a methodology that will handle the traditional side when the society you are representing is not using that traditional side any more? You are in a Catch-22 situation.
What is the instrument within your nation — if I can use that word in the generic sense — if you do not have a law to do it?
Mr. Watts: If I can answer your question in two parts, first, I think the instrument is not the Indian Act.
Senator Dallaire: I totally agree. It is perverse.
Mr. Watts: The instrument is not another piece of legislation that is Indian Act-like in terms of it not making space for, or not recognizing, our jurisdiction. There may be some sort of legislation that has to be put in place that protects the rights of all on-reserve people — women, children, men, elders. That may be the case; but if it is a piece of law that presumes to be the end-all and be-all in terms of speaking to those rights, and does not make room for First Nations jurisdiction, we are in the same place we are at right now.
The court's interpretation of the constitutional debates of 1867 is that the Crown divided power to create unity. It did not have Aboriginal rights and it did not have Aboriginal titles, so it could not presume to make laws about those issues, but it does; and that is the dilemma. How do we undo some of that and how do we allow our own laws and our own customs and traditions to flourish? At the same time, I agree with you, we may have to have some stop-gap measures to ensure protection of people, but it cannot be a measure that further oppresses our own laws.
Senator Dallaire: What do you believe the panic is on the part of the minister? Do you believe that there is actually a desire all of a sudden to solve a problem that has been five or six generations in the making, and do it in six months? Is it based on a political decision? Are we trying to bring about a substantive instrument that is compatible to both nations to make this happen?
Ms. Jacobs: I will be totally honest.
Senator Dallaire: The aim of the exercise is to be candid.
Ms. Jacobs: I think it is a political issue and it is being done in such a short time frame because we have a minority government and it might prompt a spring election. They are trying to bring forward this proposed legislation before that happens and have consultations in the interim. We are still trying to follow and abide by the time frames but it is causing a great deal of difficulty in the awareness that has to be out there. We are aware of the issues. Some women in our communities do not realize that this is an issue because they are learning basic survival mechanisms.
Bringing this awareness forward so that women are aware of the issue is one of the first steps that we have had to undertake. We agreed to one year because we wanted that full year to talk to women across the country, but we are down to three months.
The Chairman: Senator Dallaire, there was a sense from the witnesses and from the committee members at the time that we should deal with this issue quickly. In the reports of the committee we recommended no further consultations, meaning that we did not want to study it. Ms. Jacobs has pointed out that she knew the issues. Ms. Jacobs has brought to the committee today the sense that whether it can be implemented under the scheme that the minister has put and whether there should be more time. It is an urgent issue, and we all agreed. I am defending the previous chair and colleagues of the committee in making those comments. Perhaps that is territorial but it is warranted because we did hear the witnesses at that time.
Senator Dallaire: Thank you for the clarification. I am doing my apprenticeship, as you realize.
The Chairman: You are doing it well, I must say.
Senator Dallaire: If this issue is three years old, then I still have a real problem with saying that it might take another six months. If I am not mistaken, there are more than 600 First Nations settlements across this country.
Wendy Grant-John, Ministerial Representative, as an individual: There are 633 First Nations settlements.
Senator Dallaire: Yes, and most of them are not easy to access.
Mr. Watts: Many are in remote areas.
The Chairman: The point was made to move forward. We can hear from the witnesses about what they would consider a reliable timetable. We followed up with two reports to say that we wanted a timetable. In that way, we could discuss whether the timetable is too short or too long. It is moving forward, where before it was rhetoric. Everyone around was saying that women's issues are important but the issues were not on anyone's radar screen. I am comforted to hear that our witnesses are on line with the report and we are now are dealing with how we will do it and not if we will do it. That shows some progress.
I would encourage senators to put their questions so that we can hear the answers.
Senator Lovelace Nicholas: My question is for the panel. Rather than amend the Indian Act, do you think it should be abolished? Are you happy to make amendments to the Indian Act?
Mr. Watts: We have advocated the abolition of the Indian Act many times but in doing that, the government should not look at it as a tool with which to punish Indian people. Things have to be done in a considered, phased and respectful way. That is a nice, short answer.
Senator Lovelace Nicholas: Have you had any opposition from any organizations concerning the matter of matrimonial real property?
The Chairman: Does anyone oppose going forward on this?
Ms. Hanuse: As Mr. Watts noted, we have not had an opportunity to get out there and engage debate on the issue. It would be premature of us to answer because we have not heard any response otherwise.
Senator Lovelace Nicholas: You do not think you would have any opposition from the male native organizations.
Mr. Watts: In order to participate in this process, we have put it before our chiefs to get permission. Much as Minister Prentice had to get permission from his colleagues to go forward, the National Chief had to get permission from his colleagues to go forward; he has done that, and the chiefs have agreed.
Ms. Jacobs: In the consultations to date, we have not had any of our PTMAs oppose the process; however, they are saying that we are not getting to them so that they can respond. We have heard that they are experiencing some difficulties from their chiefs and councils. Again, I am being totally honest about the responses we are hearing from those women. We know that will be included in our final report and that will be a consistent message from the women. We are consulting with those women who have experienced this first-hand — the women and their children, who are youth and adult children now.
Senator Pépin: The chief takes the decision. There might be a chief who will disagree with the process. Do you believe that the women will be strong enough to voice their disagreement with the chief and say that they want change? This issue speaks to tradition, heritage and culture. Perhaps I am confused but I have the sense that many might not want a change, or have I misunderstood you?
Ms. Jacobs: The women are telling us what happened to them when they separated or divorced. They are telling us about being forced out of their communities without support from the chief and council. I know that these issues will be addressed with the Assembly of First Nations when we come together. We will talk about the issues and try to develop resolutions because the way that women have been treated in our communities is an issue that needs to be addressed.
I told the women in those consultations that I would not hesitate to bring those issues forward. The difficulty is how to deal with the safety of women in the communities because they are taking a risk by coming forward. They know what has happened to them in their own communities and how they have been treated. That is the reality of the situation.
Senator Pépin: I have been involved with native women's issues since Mary Two-Axe Earley. I worked with her in the early 1980s.
Mr. Watts, you are saying it is true you are late, and what was supposed to start in September will start in January. Is it sure it will start in January or will it perhaps be delayed again?
Mr. Watts: The federal proposal is that phase 3 would start in January. We are saying that phase 2 is late in starting and that we may need more time; in fact, the federal government may need more time. I do not know how many consultations the federal government has had with its provincial counterparts. We have not been invited to any, so I suspect that there may not have been any.
Some people may be running a bit behind. We have the entire nation to consult. Even if we had started in September, I am not sure whether it is realistic to be finished by the end of November, to be able to write a report in December to go into another process in January.
Senator Nancy Ruth: First, I want to respond to the political answer, the timing, because it would seem to me that the Grand Chiefs' close relationships with previous Liberal governments was quite sufficient to think there was an advantage — it could be spun that way — for the process to be delayed. Be careful about how you answer that question.
I want to know two things, Ms. Jacobs. First, how will it affect the children and grandchildren, and how do you see that working out — passing beyond the marital break-up but down through the generations?
Second, I am sympathetic with you, Mr. Watts, in your comment about people not buying in — if they do not have enough time to buy in, it does not work. This is true in any kind of negotiation, but leave the politics out of it. You will get into trouble. I will get you in trouble. Tell me about the next generations. I do not know what that means.
Ms. Jacobs: It means that we are always thinking of at least seven generations ahead when we think of our tradition and our culture. Under the land tenure reserve system right now, we have little blocks of territory. If that is all we have, then that is what we are trying to protect for our future generations. The women want to consider the bigger picture. The women are responsible for the children and grandchildren.
Senator Nancy Ruth: Can you give me an example of a couple with three children that separates; how would that work out to the seventh generation?
Ms. Jacobs: Let us say the woman has to leave her home and her community. She and her children live in poverty; they have to find a place.
Senator Nancy Ruth: In the dream land of this negotiation, how might it work?
Ms. Jacobs: That there is housing on the territories for families.
Senator Nancy Ruth: For how many generations?
Ms. Jacobs: We look forward at least seven generations.
Senator Nancy Ruth: Okay. I want to make sure I understand.
Senator Poy: Ms. Jacobs, you said something earlier that, traditionally, land belongs to the women in First Nations. Then what happens? You did say there was the Eurocentric government and things went awry. If First Nations people respect their traditions, you would not have the women being driven out of their homes and the land. Can you explain that, please?
Ms. Jacobs: How much time do we have?
We are talking about the impact of colonization. We have tried to maintain our traditional, but the patriarchal Indian Act system has affected our traditional system. It has affected not only governance but also our lands and territories. It has affected our clan system, our lands system, and how we relate to each other. We are discussing the residential schools, the cultural genocide that came out of the Indian Act, the child welfare system and the criminal justice system. These patriarchal, Eurocentric, colonial, genocidal impacts have had a direct impact on our women and our communities. We are discussing violence and intergenerational families, sexual violence, physical violence, racialized, sexualized violence — these are all products or impacts from the colonial system. Mr. Watts talked about poverty and with poverty, we must discuss suicide, racism, stereotyping and health issues; these are all direct issues that have affected our traditional system.
Senator Poy: What you meant was that if there were no colonization, the women would still control the land, is that right?
Ms. Jacobs: That is right.
Senator Poy: Is that the way it was before?
Ms. Jacobs: That is right.
Senator Poy: I needed to understand that because that went back quite a long way. Thank you.
Senator Nancy Ruth: That is an amazing idea, though.
The Chairman: Mr. Watts, I wanted to clarify one thing before we wind up.
You say you need more time and it is probably broader than the Indian Act. In Canada, as I understand it, the Aboriginal people have embraced the Charter of Rights and Freedoms. Do you agree that if we continue without resolving it, it is a violation of women's Charter rights?
Mr. Watts: I think it is a violation. There are many violations of the rights of First Nations people: access to proper child care, access to clean water, access to homes that are not mouldy. I will not pretend to rank them, but there are many issues. Part of the dilemma that faces all of us is how to deal with this important issue and not sacrifice, at the same time, our ability to find an opportunity to give life to our own beliefs, our own culture and our own jurisdictions. Is there a solution in that to deal with this problem?
I think what Ms. Jacobs has said is that there is a solution in there and I am saying that as well. Do we sacrifice that? Do we take some time and try to find the right solution, or do we just rush through and try to find one that is convenient in terms of time?
We are struggling with that difficult dilemma. Some people may have to run to catch up and some people may have to slow down to wait for us. That is the dilemma as I see it.
Ms. Hanuse: We have to be careful when we talk about human rights violations. When you look at this issue, it does not necessarily involve an enumerated ground. We do not have discrimination necessarily on the basis of sex. This legislative void affects First Nations men, women and families equally, so it is not just about gender in this particular context.
We also have section 35 rights. There has been judicial recognition of Aboriginal rights to control family law in Canada. Adoptions and marriages are recognized by the courts. The right to manage lands is recognized by the courts. We have on the one hand the protection afforded by section 35. We do not want that section to become hollow and meaningless and we do not want people to have to go to court to have it implemented. It is costly for First Nations people to go to court on these different issues. On the other hand, there is section 15 and the other Charter rights that go with it, which is where we require this appropriate balancing. We could broadly make a general statement saying that this is a human rights violation; however, that is dangerous because we would be pandering to emotions. We will not find solutions that fit the particular circumstance if we pander to emotion. We have to be careful when we use that term.
Is this about housing shortages or finding ways to divide property between couples when they separate? What is the problem we are trying to address? We are concerned about First Nations women and children being forced out of their communities. Do we have the statistics and the information to back up why these women and children are forced out of their homes? Is it because there is a legislative void or is it because of chronic housing shortages? When there is a break up there is nowhere to go and there is not enough money, even if there were a perfect law that produced a wonderful way to divide assets. At the end of the day, will there be enough money to buy comparable, affordable housing in the community? Is the problem that there is no land available the build a house and if there were the women cannot mortgage reserve lands. They have to go to the band or the government for money to buy comparable housing.
What is the real culprit? Are we developing this wonderful machinery to resolve a problem, which, to our surprise at the end of the day, may not be the real problem? Maybe the real problem is poverty and chronic housing shortages. We have to be careful in how we frame these issues and how we work to solve them.
The Chairman: I was talking about the Charter. It is a question of where to start. With a multiplicity of issues that is one way of starting. That is what the report embraced. Whether these are Aboriginal or non-Aboriginal issues, there are individuals impacted every day while we carry on our discussions. To me, it is always a case of balancing to get the right solution to the immediacy of a woman or a family in distress.
While we look for the longer-term solutions I hope that we start to address lives that are in jeopardy, whether on- reserve or off-reserve, whether Aboriginal or non-Aboriginal. That is always the conundrum. The plan is here but the immediacy is that someone is being affected as we speak.
While the process is going on with the government, I hope that the Aboriginal leadership is looking at how to deal with the immediate cases. Perhaps these are stop-gap solutions, but they might help an individual and a child — even for seven generations, something which stuck with me. It is important to start now before we start correcting seven generations back.
We are here addressing one of a multiplicity of problems. We hope there is some light coming forward. We look to you to address that issue. The feedback I am getting today is that we might require more time. I can suggest on behalf of the committee — and if members do not like it, they can tell me later — that we give more time for the consultations, and so on. There has to be a commitment to get it done and to complete it. If that is there, then the time becomes negotiable. We really need this to be on the agenda.
Thank you for coming forward and assuring us that you are committed to the process and engaged in it. I think that is hopeful for individual children and families. We thank you for that.
Honourable senators, I see that we have Minister Prentice here with his officials. We have invited the Minister of Indian and Northern Affairs Canada to respond to our committee's report entitled, A Hard Bed to Lie In: Matrimonial Real Property on Reserve tabled in the Senate on November 4, 2003.
Since then, we have had several follow-up reports, indicating that we wished action on our report. We are pleased that the minister has made some announcements. I am sure he will refer to them as well as address our report.
Minister Prentice, welcome. You have with you several of your officials, including Ms. Wendy Grant-John, who will in charge of the process that you have announced. Perhaps you will introduce the other officials for us.
Hon. Jim Prentice, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non- Status Indians: I would be delighted. With me, I have Ms. Sandra Ginnish, Ms. Holly King and Ms. Margaret Buist.
I appreciate this opportunity to address the Standing Senate Committee on Human Rights.
[Translation]
I would like to begin by thanking members of this committee for their important work on the issue of on reserve matrimonial real property.
[English]
I salute Senator Jaffer for rising in this chamber earlier in the month to acknowledge the work of her colleagues, Senator Maheu and Senator Chalifoux. The report A Hard Bed to Lie In: Matrimonial Real Property on Reserve stands as a seminal work on the issue of matrimonial real property. The hard work of this committee and the committee's thorough research and thoughtful analysis have been a valuable contribution to our understanding of the issues and brings us all closer to an effective solution. I complement you on the work that has been done, Madam Chair.
I have initiated a consultative process that will help lead to an effective legislative solution for matrimonial real property. We have brought copies of the consultation kit, which I understand you have received. I am happy to answer any questions you may have over the course of the next hour. First, though, I would like to share a few of my views and explain why I believe that the initiative now underway is the best way forward to resolve the dilemma of matrimonial real property.
[Translation]
I agree with the view expressed by this committee that the present gap in legislation contributes to gross violations of human rights, and I share your desire to implement a speedy solution.
[English]
For this government, or indeed any government, to take unilateral action such as amending the Indian Act so that provincial family laws can apply on reserve, would not be appropriate. In fact, two national Aboriginal organizations have rejected this course of action and requested that we proceed with consultation. Furthermore, the provincial and territorial officials who would suddenly have responsibility for on-reserve matrimonial real property are unlikely to welcome amendments on which they have not been consulted. Without the endorsement of these key players, the amendments are sure to fail. It is an important question of proceeding but proceeding with consultation.
[Translation]
What we need is a solution that has the support of first nations individuals and communities, and all Canadians. I am convinced that the collaborative process now under way will both lead to an effective legislative solution, and will also garner the support needed to implement that solution successfully. This process is an exercise in consultation and consensus-building led by the Canadians most affected by matrimonial real property: the First Nations peoples.
[English]
The Native Women's Association of Canada and the Assembly of First Nations are conducting independent consultation and dialogue sessions. Other groups may also choose to hold sessions of their own, and some have already approached INAC with proposals. In addition, officials within my department have begun discussions with the provinces, territories and organizations not represented by the Native Women's Association of Canada or the Assembly of First Nations. All of these discussions and sessions have a common focus and objective to identify an effective legislative solution to the issue of on-reserve matrimonial real property. Stated in another way, the consultative process is about the form of legislation, not the desirability or need for legislation. It is about the specific form and content of the legislation.
I have indicated that it is my intent to introduce legislation following the consultative process in the spring of this coming year. We are acutely aware that this issue has remained unresolved for far too long. I know I speak with some of the authors of the report A Hard Bed to Lie In: Matrimonial Real Property on Reserve what I say that. This legislative void must be addressed if we truly want to ensure the well-being of First Nations individuals and communities.
As you are aware, matrimonial real property, or the family home, is the most valuable piece of property that a couple on a reserve owns. On the breakdown of any marriage, the division of this property affects not only the spouses but also the family members and the community as a whole.
As we move forward, the rationale guiding our commitment to resolve this issue is straightforward. We want to ensure that the legal rights and remedies available to other Canadians off reserve are also available to First Nations citizens, Canadians living on reserve.
We need to ensure we address this legislative void in a manner that is acceptable to those who will be affected, First Nation individuals, particularly women and children, and First Nation communities. That is why I believe that the process that is currently underway will achieve what we are hoping to achieve, namely a solution that provides balance between individual and collective rights and which is based on consultation with the people who are affected. As such, I would like to make clear that what is being proposed is not intended to lead to any kind of privatization of reserve lands. That is not the issue before us.
The process is being led by an individual who has agreed to act as my personal representative and that is Ms. Grant- John who is a respected leader, a successful entrepreneur, and a skilled negotiator. Ms. Grant-John will do so in partnership with the Native Women's Association of Canada and the Assembly of First Nations.
I am confident that this process will lead to innovative and balanced solutions that we are looking for, and these will be solutions that help us ensure matrimonial real property rights are protected while respecting community interests to protect reserve land for future generations.
[Translation]
To lead this process, and the subsequent consensus-building effort, we are fortunate to have a woman whose remarkable accomplishments have garnered praise from groups on all sides of the matrimonial real property issue. Wendy Grant-John has been elected chief of her First Nation no fewer than three times and has also been voted into the post of Aboriginal First Nations Assembly Regional Vice-Chief. She is also an entrepreneur and a former Indian and Northern Affairs Canada executive.
[English]
Ms. Grant-John has a significant challenge ahead of her as special ministerial representative on this matrimonial real property initiative. There is much work to be done, and I have asked her to seek a consensus on a solution that will enable us to move forward. Should no consensus emerge, she has agreed to provide me with her best recommendation for action, and I am determined to move forward and to act upon her advice.
We have heard concerns during the consultation process to date that many First Nation people believe that my department has already drafted matrimonial real property legislation. Let me assure you, as I have assured others who have asked me, including the National Chief of the Assembly of First Nations, that there is no draft matrimonial real property legislation in my possession at this point in time.
This is a complex issue, an issue that requires consultation, and I have sought out a person of enormous integrity in whom I have enormous personal confidence, and that is Ms. Grant-John. She will be bringing me a recommendation that will form the basis upon which I intend to proceed. The recommendation and advice she provides will guide me in what I take forward to my cabinet colleagues.
We have also heard concerns from other people, including specific First Nation individuals, who are concerned that the underlying objective of what we are trying to do is the erosion of on-reserve property, or specifically the erosion of reserves. The goal of this process is to address the longstanding human rights issues that this very committee addressed in the report A Hard Bed to Lie In: Matrimonial Real Property on Reserve. It is not the Government of Canada's intention to extinguish reserve status through any matrimonial real property legislation. One of the fundamental objectives or principles that my department has stated throughout is that reserve land shall not be alienable. That is not the intent of this initiative. Let me assure you that the reserves shall remain for the use and benefit of First Nations for which they were set aside.
[Translation]
I also believe this is the best approach to matrimonial real property consultations and consensus-building followed by legislation, because it offers the best hope for an effective, practical and sustainable solution that will not affect the inalienability of reserve lands. In fact, this process will encourage those most affected by the issue to pursue it. After all, the success of any new law depends on how well citizens understand and support it.
[English]
The time has come to close the legal void that surrounds matrimonial real property once and for all. This government is committed to enact a solution that works for provinces, territories, First Nation communities, Aboriginal women and children and all Canadians.
To create this solution requires the active engagement of all the key stakeholders and this is precisely what the initiative, now underway, intends to accomplish.
In closing, I would like say thank you for having me here today and thank you for the hard work that the Senate and your predecessors on this committee have done on this subject. That work has been important and has informed and guided me in my deliberations as minister.
[Translation]
I will do my best to answer your questions.
[English]
Ms. Grant-John: Walking into the room and seeing the people sitting here, I want to acknowledge and be thankful and I would be remiss if I did not acknowledge Senator Lovelace Nicholas and the work that you have done on behalf of Aboriginal women in this country.
Thank you for providing me with the opportunity to talk about the consultation and consensus seeking process concerning on-reserve matrimonial real property issues. I am honoured to be part of this process and I will be pleased to respond to any of your questions.
I know you are well aware of the issues of matrimonial real property and your committee's work has helped to inform the discussions that are currently underway. I think we all agree that a solution is long overdue. However, despite the obvious need for a solution, the issue before us is a complex one and the task is challenging. The willingness and commitment of the Native Women's Association, the Assembly of First Nations and the Department of Indian and Northern Affairs Canada to listen to each other in a search for constructive responses is encouraging.
There is no doubt that the involvement of NWAC and the AFN to resolve the issue of MRP is key. Their constituents are directly affected by this issue and will be directly affected by any response. As such, any real and effective solution will require their participation. This is the underlying rational for this unique consensus-seeking process and the commitment of all of the parties involved. The process is designed to encourage discussion about the protection rights spouses need during marriage and upon marriage breakdown.
The first phase involved planning for the consultation and consensus seeking phases. This included working together to develop guidelines to promote constructive and respectful discussion between the three parties about on- reserve matrimonial real property issues. In the second phase that has just begun, consultation and dialogue with First Nation people will take place through three streams of consultation. The Native Women's Association of Canada is consulting with regional First Nations women's organizations and holding public consultation sessions. Their aim is to ensure that the voices of women are heard. The Assembly of First Nations is seeking input from representatives of over 630 First Nations. The Department of Indian and Northern Affairs Canada is consulting with the provinces and territories and other interested organizations and communities, not represented by either the AFN or NWAC including the Indigenous Bar Association and the National Association of Friendship Centres. During this second phase, I will oversee and facilitate the process and ensure the sharing of results in the effort to find solutions. These consultations and dialogue sessions are scheduled to end some time in January.
The final phase, which I think will be the most exciting, will involve a consensus-building period during which NWAC, the AFN and INAC will explore opportunities for consensus on a proposed response to matrimonial real property issues, including as the minister has said, a legislative response, informed by what has been heard during the consultation phase.
During this final phase, as the minister has said, I will develop a report on the outcome of the consultations and put forward recommendations for action. My hope and expectation is that this consensus process will produce a set of recommendations that are the result of a consensus from the three parties.
There is no doubt that my partners and I have much work to do over the next few months. We have a unique opportunity to come up with responses to an issue that has caused so much hardship for so many First Nations people, both men and women.
We have heard many times that in the traditions of many, if not all First Nations, there is a fundamental principle of respect for others including men, women, children and elders. That respect lies at the heart of our traditional laws and did so long before the introduction of the Indian Act. The leadership and the people participating in the process have emphasized this principle of respect as a key to building any viable response on matrimonial real property.
It is time to ensure that basic protections for the fair resolution of MRP issues are available to First Nations people on reserve in a way that respects and honours both men and women and that respects and honours First Nations traditional values.
I feel privileged to be part of the search for these solutions and I thank you for the opportunity of being here today.
Senator Dallaire: In the advancing of the significant deficiency that has to be rectified, there have been questions on how to go about it. You have indicated clearly that you say legislation is the answer and that you are looking for data to bring about that legislation.
In the process of bringing about legislation and meeting the traditional needs of the First Nations versus our background from our nations, how far back do you go into the traditions to find that reference point that you are trying to meet? Are you going to go as far back as to when we got here and use those instruments to establish the parameters or are you expecting the consultation, which seems to be pretty short circuited after all this time, to provide you with that sort of information?
Mr. Prentice: It might be best if Ms. Grant-John and I answered that question separately.
Legislation is the necessary solution to cure an absence of legislative protection for women. Certainly, there can be a discussion about the form of that legislation, whether it should happen at the First Nations themselves or it should be an amendment to the Indian Act or another legislative solution that adopts, by reference, provincial matrimonial property law. The essential problem has certainly existed in Canada since 1986 in the Derrickson case when the Supreme Court of Canada ruled that matrimonial property legislation did not apply to First Nation women on reserve. Until then the assumption had been that it did. We are making progress and the ultimate solution is certainly self- government legislation on a First Nation by First Nation basis. This past weekend, I participated in the execution of the first modern-day treaty in British Columbia under the modern treaty process. It allows that First Nation to adopt matrimonial property legislation or, if they choose, to adopt the laws of British Columbia.
We are searching for a solution, pending that happening across the country. There are approximately 630 First Nations in Canada. The situation is not improving itself quickly. There is a need for some kind of interim measure — a legislative interim step — that will provide matrimonial property protection for First Nations women pending the ultimate arrival at a system where all First Nations are self-governing and have a legislative regime.
Ms. Grant-John: I will begin by answering with a quote from one of our past president's who was one of the first women to bring this forward. She said that there are many issues including the ones you have heard tonight that impact on MRP but she said clearly, ``Do not let any of them, including the issue of exploring our traditional governance models, stop any movement to protect the people in the communities now. Do not let that happen.''
When we look at the consultation process, we see that the government has put forward three options on legislative models. Two of them suggest, as the minister has stated, that until the jurisdiction is taken over by those First Nations communities, this is what will be in place. It is acknowledged that the discussion on traditional governments needs to have a time frame so that the people in the communities can participate. In my view, that is when we begin to truly explore that issue.
Some people have begun to look at this and some communities have passed bylaws. They have tried to push it through the Indian Act only to be told that they could not do so. People are working on the issue and people acknowledge that it has to be done. They look forward to having a framework in which to continue their efforts and discussions.
Senator Dallaire: Minister, you made it quite clear that legislation is not in your hands. Certainly, contingency planning is what we expect of staff in respect of preparing the draft should you want this to go before the House. Obviously, someone is looking at it, in particular the requisite budget. If you are to introduce proposed legislation to permit access to housing for separated families, you will have to deal with the current situation of limited housing availability. Will you have a budget allocation clearly identified for that additional housing? Will you seek more money or will you allocate from within?
Mr. Prentice: We are working with the Assembly of First Nations on the issue of housing. In the budget of the new government, $300 million was allocated for new housing north of the 60th parallel, most of which is for Aboriginals. An addition, $300 million was allocated for off-reserve Aboriginal housing south of the 60th parallel. We are working with the Assembly of First Nations on an initiative that will deal with on-reserve housing south of the 60th parallel as a separate initiative.
In terms of your question about legislation, to be sure various people have drafted different versions of proposed legislation that would correct this issue. The point I make is that I will turn my attention to precisely what the proposed legislation should look like once I have heard from my colleague, Ms. Wendy Grant-John.
[Translation]
Senator Pépin: Minister, you said that the consultation process would take the form of a period of consensus- building. In your presentation, you repeat how important the process of consultation is to find a consensus.
How will the consensus-building process work? A few moments ago, it was said that it might be difficult because of the past and because of the forthcoming legislation. I know that you asked Ms. Wendy Grant-John to organize consultations. How do you think it will be possible to reach a consensus? You may answer in English, if you like.
Mr. Prentice: I will also express my ideas in French. We began consultations and I do think it will be possible to reach a consensus within about four months. I think that is enough time to address the matter.
[English]
The consultation process is extensive. The legislative solution will not result in a bill that is 10 or more pages long. The bill to provide the necessary solution will be about two pages long. The process of consultation is important and that is why I have gone about it this way, rather than simply introduce legislation into the House.
I will say this: I intend to put proposed legislation forward that deals with this because I regard it as one of the very significant human rights voids in this country today. I hope that consultation arrives at a consensus with which everyone is happy. At the end of the day, it is my intent to bring proposed legislation forward and if not everyone supports it, then that is the way that it will be. I will put a bill before the House of Commons. My discussions with my colleagues in the House indicate a high degree of support for the bill that I will table in this respect. The search for consensus should not result in ``no action'' at the end of the day.
[Translation]
Senator Pépin: We were told that the consultations which were supposed to begin in September 2006 will likely not start before January 2007. Is that right?
Mr. Prentice: Yes, but we have been discussing this for 20 years now in Canada.
[English]
We have been talking about section 67 of the Human Rights Act, which is another human rights grievance, for 32 years.
Senator Dallaire: You do not want to ram it down too fast either.
Mr. Prentice: I do not think 32 years is ramming it down anywhere and likewise for the time since 1986.
[Translation]
Senator Pépin: Ms. Grant-John, I believe you said that the consultations have begun. I would like to know whether the different regions and organizations have presented different points of view.
[English]
Ms. Grant-John: I do not hold consultations but I do attend the consultation processes held by the Native Women's Association and the Assembly of First Nations. I have attended a number of consultations across the country. I find that the issues are the same and that there is not much difference in the women's comments. They say that we need to move quickly to protect their interests. It has become clear, as Ms. Jacobs said that we need the dialogue to take place with respect to our governments and the equal place of women as was there before the time of contact.
It has been very much the same issue at each session, without exception. The women stress that we protect their collective and individual rights. The women stress that we include the housing shortage, access to justice, all of those things by the time we come to the table for consensus, because we did set guidelines. We have been meeting as the three organizations for the past couple of months and we have set out guidelines on how we will discuss the issues.
Senator Pépin: I am quite happy, and I believe that you are probably one of the best people to do that job.
Senator Poy: Minister, you said you want to go from consultation to consensus building and then to legislation. Yet, in your presentation, you said that should no consensus emerge, Ms. Grant-John will provide you with her best recommendation for action. Can you explain?
Maybe Ms. Grant-John can tell me. You said the issues were very similar in many of the meetings you attend. You also mentioned Ms. Jacobs, who was here just now, with two others, as witnesses. All three of the witnesses were very concerned about the short time frame. In fact, Ms. Jacobs said they really need a full year for consultation. Can either of you comment on that?
Ms. Grant-John: When I talked about the issues being the same, keep in mind I have only been to the Native Women's Association sessions because the Assembly of First Nations has not started their sessions. The minister has known about the issue of timing from the beginning; everyone at the very beginning of this process said they would like consideration for a little bit extra time to do the consultation in the communities.
The minister responded that we would evaluate where we were in December and discuss an extension on that process or on the consensus. We will make that decision in December but the minister is very clear that he wants to go through with legislation in the spring.
I have every confidence in the three groups that there will be consensus. As I said, the issues are not that far off so far. However, at that point, if there is not consensus, I have the responsibility — based on what I have heard and what I have participated in —- to bring a recommendation forward on a course of action for the minister. I recognize that responsibility and I am prepared to do it.
Senator Poy: What came through loud and clear just now with the witnesses was the lack of time for consultation. Mr. Watts said that they were not about to start the second phase because there was no funding. It was supposed to have started in September. Now, it is at the very end of October and it seems, from what I heard, they have not started the process.
Mr. Prentice: Funding is being provided. In terms of the length of the consultative process, I have enormous respect for Ms. Grant-John and I will talk with her as my representative as this process moves forward; however, let us be clear that your committee called for immediate action.
Senator Poy: I know. This is long overdue, you are right.
Mr. Prentice: Your committee called for immediate legislative action, no consultation. You called for the minister of the Crown to introduce legislation to amend the Indian Act. I have gone beyond that and initiated a very reasonable consultative process, for which the Government of Canada is providing funding, to make sure this is done in a collaborative way. However, at the end of the day, there is responsibility on my shoulders to act. Frankly, this committee has asked me to do it and to do it immediately, so you cannot have it both ways.
Senator Poy: I understand that minister.
Senator Dallaire: Sooner rather than later does not mean you take 15 minutes to write it.
The Chairman: I think Senator Poy has the floor.
Senator Poy: I am repeating the concerns that we heard earlier.
Mr. Prentice: We are working with the Assembly of First Nations and the Native Women's Association of Canada. If you have heard from Ms. Jacobs, you know she has been pleased with the progress.
Senator Poy: Ms. Jacobs was the one that said there is not enough time and that they needed a full year. That was the last thing she said before she left this room.
Senator Lovelace Nicholas: My question is for Ms. Grant-John. Will this proposed legislation include a provision to cover the case of no certificate of possession upon a marriage breakdown?
Ms. Grant-John: That is a very good question. We are looking at that whole area of blind holdings. We are doing a couple of focus groups that address how the land is managed and what is the underlying title, and what will be the effect of any MRP on that? We are bringing in experts from First Nations communities who are lawyers as well as land managers.
The Chairman: We responded to the Aboriginal community. I was not the chair when this report came in, but that community said the issue had been known for an incredibly long time, that individual families were suffering and something had to be done.
Too often, we hide behind consultations and needing more time. On the other hand, if there is a reasonable process in place, then extensions of time become realities, if there is real progress.
We have had an Aboriginal community, or parts of it, that said this should be done immediately, and we responded. I think that unless I hear from the committee differently, certainly this is where we have been saying we want action as opposed to words. That is not to say that if you, as the minister, have chosen a process that you think is sensitive to the Aboriginal community and it involves consultations — and the Aboriginal community is responding and taking your requests seriously — that you might put some framework on it.
What would be the reasonable signals or actions? What is substantial progress?
Mr. Prentice: I think, Madam Chairman, your caution is well put. What we have tried to do here is to put in place a process, in collaboration with the Assembly of First Nations and, in particular, the Native Women's Association of Canada, for whom this has been a big issue.
I have said this before. In my time in opposition, I was quite moved by the Native Women's Association of Canada, which advocates on behalf of people in our society that they describe as the ``poorest of the poor.'' There are a number of issues that they have brought to my attention, this one first and foremost; so I resolved, as minister, that I intended to take action on this.
We are sincerely working together. We have brought in, as Senator Pépin said, one of the best people in Canada — I would submit to you the best person in Canada to head this process up, which is Wendy Grant-John. I will hear what she has to say as this moves along.
I do not think we should be driven by a fear that the process will fail. It is actually going very well from everything I am told. As Ms. Grant-John said, there seems to be a great deal of focus already in terms of the different consultations. I am confident that reasonable people will arrive at reasonable solutions that will protect women and families. I am simply asking for their advice and help to know how to do that.
The Chairman: Coming from our previous testimony by Mr. Watts, who was representing the Assembly of First Nations, and Ms. Hanuse, who was with him, the point was made that there are more violations than just this violation. We particularly had, as you have, responded to the Aboriginal women and various associations in 2003 saying ``move.'' That was our initial thrust. It was interesting to hear them say that this is one human rights or Charter issue but there are others such issues.
Do you believe that pursuing this one vigorously in any way puts the other issues on the back burner? Are they in competition or are they complementary?
Mr. Prentice: I have been trying to do four specific things to address the circumstances of native women. First is the initiative on matrimonial real property protection. Second is a future initiative on section 67 of the Human Rights Act. It seems unacceptable to me that in Canada in 2006, all First Nations citizens face a block in our human rights legislation such that a First Nations citizen cannot bring forward a human rights grievance. Section 67 of the Human Rights Act is not directed solely at women, but it inures to the detriment of women and kids in particular. I intend to deal with that issue. Third, about one week ago I took a step to stabilize the funding of the women's shelters across Canada. For the first time in 10 years, the funding provided has been stabilized and has been enhanced by almost 50 per cent. It is the first expansion of the network of women's shelters to protect native women in Canada during the last 10 years for on-reserve people. Fourth, I have indicated that the entire funding regime as it applies to organizations including the Native Women's Association of Canada requires closer examination. The Native Women's Association of Canada has been relatively underfunded compared to other organizations. If one goes back and examines the original mandate under which that funding was put in place by a former government in 1971, one can see that it does not measure against the test that we are seeking to help poor people who need funds to advocate on behalf of the people they represent.
Those are four specific efforts and they are not, I can assure you, in competition with each other. They are four independent initiatives that will help Aboriginal women assert their place in society.
The Chairman: Ms. Grant-John, historically, we know the type of protection that is needed when a family breaks up and one partner has to move. If you want to protect both parties fairly then you need to have two residences, in most cases, one off-reserve and one on-reserve. I presume that has been part of the problem. We have heard impassioned pleas from women who have had to uproot, take their families, move off reserve, away from familiar people, resources, comfort level and support systems. That has to be corrected for all parties so that we can work toward de-escalating the emotionalism and the trauma that occurs to families, and particularly to children, when a marital breakdown occurs.
Will you be open to looking at solutions for matrimonial property beyond the solutions that we know? I always go back in history when considering solutions to issues. Someone had a marvellous idea called the Homesteads Act wherein title was title was title to land, but we created a homestead that said if the woman is obliged to leave and she is not the titleholder, she still has a right to stay on the property. We designated a quarter section of land for her. It was eminently sensible in an agricultural society.
I do not know the answer for Aboriginal people with the community of property, et cetera. Will you look to new and innovative ways on property rights that will respect the community and the individual and be creative to the Aboriginal community?
Ms. Grant-John: The message is clear to me that we have to explore all of those possibilities. When in discussion, we cannot simply pull out MRP and legislation and ignore everything else. Our communities are interconnected, even if you do not look at the issue of legal title.
We have listed three pages of issues collectively by the three groups that speak to these different subjects. We need to determine how that will be reflected in the report that comes to the minister. Clearly, we need something that expresses the proposed legislation he is looking for. The idea of the second part of those three options says, ``Until such time as their jurisdiction...'' I think we would be in fault if we did not recognize that we have to outline for the minister; show what those issues are; show how, on a traditional basis, they are interconnected; and lay the seeds for the discussion to work toward solution.
You cannot do it all at once; that is impossible because it is too big and there are too many. However, we can lay down a framework to begin working through them.
Senator Munson: Minister, you talked about agreements in 11 of 630 First Nations.
Mr. Prentice: That is right.
Senator Munson: Is there a template you could use, or other explanation, to enlighten the committee on how they came to agreement and what worked in the 11 of 630?
Mr. Prentice: That is a fair and fascinating question. Do not hold me to the exact numbers but there are about 630 First Nations in Canada. As I recall, 17 have negotiated full self-government agreements with the Government of Canada. Currently, several are winding their way through Parliament. My understanding of those 17 is that 11 have dealt with matrimonial real property.
The solutions have been diverse. In some cases, I believe in the majority of cases, there has simply been adoption by reference of the provincial code in the respective province. Some have adopted specific First Nation matrimonial regulations that are put in place by the First Nation. I believe those are the two that have been enacted.
Senator Munson: Are the women on those reserves happy with what has transpired?
Ms. Grant-John: As I said earlier, we are bringing in the groups that have been working in those areas to talk with us and to show how they have operated and whether we can use their experience as a framework for others.
We have spent time talking to one of the chiefs who has led this initiative for the last 20 years. We have asked him how it has been operating and whether there have been any problems. He said that just putting it in place seems to affect a change in attitude in the communities. Knowing it is there seems to bring a comfort level to the women such that they can sit down with their mates to negotiate what will happen as opposed to the confrontational method that occurs when taking it through the legal system. The chief said that since this was enacted, they have not had to use it.
Mr. Prentice: Many self-government tables are at work at any time across the country. Certainly, since I became the minister I am determined that I will not conclude a self-government agreement that does not deal with matrimonial real property. I will not accept a self-government agreement that is ambiguous about the situation for First Nations women. Either it incorporates the provincial legislation by reference or it has a self-government regime in respect of matrimonial property.
The Chairman: We are concerned about the issues of families during matrimonial breakdown. The Senate is noted for taking minority and human rights issues into account. I pay tribute to those on the committee that put forward the first report, I pay tribute to the members that continue to dog this issue, and we are following this very closely. We do not take it lightly. It is an extremely important issue for Canada and the Aboriginal communities.
We were quite decisive in saying that we wanted movement. In saying that we wanted no more consultations, we meant that we did not want more talks that led nowhere; we wanted talks that led to action. Senator Pépin has said that we also have some confidence in Ms. Grant-John and the Aboriginal community now that there is focus and this will proceed. Therefore, we leave it to your discretion of where it goes, providing that the consultations lead to some resolution in a timely manner.
We are not here to define the terms ``timely'' or ``speedily'' but we are here to impress upon you that it is an urgent issue, not one in isolation and one of great significance to the senators.
I thank you minister for paying attention to our report, for taking the Senate proceedings seriously and we, in turn, will watch with great interest the progress of this issue and no doubt we will have another opportunity to discuss it with you further.
The committee adjourned.