Proceedings of the Standing Senate Committee on
Human Rights
Issue 2 - Evidence - May 10, 2010
OTTAWA, Monday, May10, 2010
The Standing Senate Committee on Human Rights, to which was referred BillS-4, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves, met this day at 4p.m. to give consideration to the bill.
Senator Mobina S. B. Jaffer (Deputy Chair) in the chair.
[English]
The Deputy Chair: Honourable senators, this afternoon, we will begin our consideration of BillS-4, An Act respecting family home situated on First Nation reserves and matrimonial interests or rights in or to structures and land situated on these reserves.
This Human Rights Committee has long been concerned by the challenge posed by the division of on-reserve matrimonial real property. On November4, 2003, the committee tabled a report entitled A Hard Bed to Lie In: Matrimonial Real Property On Reserve.
Today, we are pleased to welcome John Duncan, Member of Parliament for Vancouver Island North and Parliamentary Secretary to the Minister of Indian Affairs and Northern Development. He is accompanied by Line Paré, Director General, External Relations and Gender Issues Branch at Indian and Northern Affairs Canada and Karl Jacques, Senior Counsel with the Department of Justice Canada.
Mr. Duncan, I invite you to make your opening remarks, after which I am unsure if Mr. Jacques or Ms. Paré will speak. We will then have questions.
John Duncan, M.P., Parliamentary Secretary to the Minister of Indian Affairs and Northern Development: Thank you for the introduction. This is my fifteenth year on the hill, and I have never been in this beautiful room before. Thank you for this opportunity.
I thank this committee for its work in previous years. You mentioned the 2003 report of the committee, A Hard Bed to Lie In. The report was critical to the research and consultation effort that informs BillS-4. In June2005, this committee also put out another report On-Reserve Matrimonial Real Property: Still Waiting. It is most appropriate that BillS-4 is before the Standing Senate Committee on Human Rights, given the committee's long-standing interest in this issue.
Members of this committee are in a better position than many Canadians to understand the issue. For example, when we talk about matrimonial real property, MRP, it includes a lack of protection for property rights on reserve. BillS-4 proposed to address that issue specifically.
How do we resolve these issues? Enacting this proposed legislation is the right thing to do for three reasons. First, BillS-4 affords residents of First Nation communities a level of protection similar to that enjoyed by other Canadians. Second, it enables First Nation communities to design and implement matrimonial real property laws tailored to their own cultures and traditions. Third, the immediate and concrete solution articulated in BillS-4 is informed by considerable research and consultation conducted by independent groups, including national Aboriginal organizations. I will elaborate on these three points in my presentation.
I think we all agree that the status quo is unacceptable and has been unacceptable for many years. Two decades ago, the Supreme Court of Canada first identified a legislative gap in matrimonial real property rights and interests on reserve. Since then, the legislative gap has affected countless victims; many of these victims are women and their children, often among the most impoverished and vulnerable of citizens. Members of the committee are familiar with the heart-wrenching stories of mothers and children forced to leave their family homes and communities due to family violence. Compounding this misery is the fact that Canada's justice system is powerless to intervene.
On a personal note, I met with Emily and Joanne this morning. They are front-line INAC workers who deal with emails and phone calls largely from women affected negatively by domestic issues flowing from separation from, or the death of, their partner. The federal government has long recognized federal fiduciary responsibility, but has no avenue to deal with these issues at this time. This gap has real human significance and consequences. I am happy that this committee wants to set straight this shortfall.
We know how dramatically different the situation is when the same circumstances occur off reserve. This difference is because provincial family law protects the interests of both spouses in the event of a dispute, provided that the spouses do not live on reserve. BillS-4 will put an end to this injustice. The bill eliminates a form of legally sanctioned inequity against residents of First Nations communities, an inequity that serves to alienate many Aboriginal people.
A quote from recent testimony by National Chief of the Congress of Aboriginal Peoples, Betty Ann Lavallee, provides a sense of this alienation. In mid-April during examination of other proposed legislation before the Standing Committee on Aboriginal Affairs and Northern Development of the House of Commons she said on BillS-4:
The MRP has more significance than meets the eye. The bill is addressing the real human issue of an aboriginal person, something taken for granted by all other Canadians and provincial governments. A spouse within an aboriginal relationship should not be denied, or put out on the street alone and without any recourse, because of a family breakdown. The MRP is a very significant piece of legislation.
This quote speaks to the injustice lying at the heart of the matter. The proposed legislation features two main elements.
First, the bill provides First Nation communities with the power to design and implement laws governing MRP rights and interests on their reserve lands. BillS-4 requires that these laws earn the support of a majority of First Nation members as expressed through a democratic vote. Laws approved by a First Nations community are not subject to review by the minister or any other Government of Canada official.
BillS-4 responds directly to a concern express repeatedly by Aboriginal groups during various engagement and consultation sessions. These groups insist that First Nations must have a direct say in on-reserve matrimonial real property law. Under BillS-4, a First Nation can design an MRP regime that meets the particular needs, customs and traditions of the community.
The second major component of the proposed legislation establishes an interim federal regime on matrimonial real property. This regime will remain in effect only until a First Nation enacts its own legislation. In this way, BillS-4 ensures that the law affords similar protection to all Canadians, regardless of where they live. Most important, the interim regime provides legal recourse to residents of First Nation communities, if needed.
I encourage committee members to look closely at the issue of access to justice. Currently, residents of First Nation communities have every reason to feel that the law abandons them and that our justice system does not serve their interests. Aboriginal and non-Aboriginal alike see this abandonment as a serious and negative effect on all Canadians. Closing the legislative gap will respond to the call for action of this committee and others to address this inequity.
A third reason to support BillS-4 is that it is informed by multiple research studies, and engagement and consultation sessions. Independent groups, including national Aboriginal organizations and United Nations bodies, conducted much of this work. Reports by three committees of Parliament, including this one, concluded that a legislative solution was needed. Multiple reports recommended that Aboriginal organizations be directly involved in the development and implementation of any proposed solution.
In response to this recommendation, Wendy Grant-John was appointed as Ministerial Representative to try to find a solution that would satisfy all parties. The Government of Canada provided funds to various Aboriginal organizations, including the Native Women's Association of Canada and the Assembly of First Nations, to stage consultation sessions. In all, more than 100sessions were held. The results of this process informed the legislation before us, and further engagement resulted in significant improvements to the bill.
In 2003, this committee's report called on the Government of Canada to develop and implement a solution to the MRP legislative gap. The government has made several attempts to resolve this issue. BillS-4 represents an opportunity to finish the job. It offers a timely, appropriate and effective solution to a long-standing problem. It aims to remove a cause of injustice that has hurt countless Canadians. I see it as part of a suite of legislation: amending the Canadian Human Rights Act; dealing with the McIvor court case on registration; and now matrimonial real property. These pieces are all essential ingredients from a human rights perspective.
I am pleased to have this opportunity to highlight the value this bill has to offer and to outline how it responds to the issue identified in your report, A Hard Bed to Lie In. I look forward to the committee's support for this important legislation and the solution it offers to the equitable distribution of real property assets in the event of death, divorce or separation.
The Deputy Chair: Thank you. Do either of you want to add anything? Very well; we will move on to questions.
Senator Brazeau: Thank you, Mr. Duncan, for the presentation. I have two quick questions.
I had the opportunity to participate in one of the consultation sessions in 2006, which was facilitated by the department, Wendy Grant-John being the lead. In my previous capacity, I had to take the information to my constituents and the membership to inform them of what the legislation at that time entailed; what the repercussions would be; what the pros and cons were; and to allow the membership to determine or to formulate a position to direct me to say if I supported the legislation, as a head of the organization.
Are you comfortable in saying that consultation has taken place with the other national Aboriginal organizations?
Mr. Duncan: Yes, I am comfortable in saying that. I know significant funding to the Assembly of First Nations and the Native Women's Association of Canada was attached to the consultation phase. I am not sure if that happened with the Congress of Aboriginal Peoples or not. I am informed it did happen.
This process was not frivolous or poorly thought-out. It was long-standing; I think it went on for several months and there were many sessions. This consultation all went to inform the eventual legislative package, and significant amendments were made to the bill.
This bill is presented in the same format in the Senate as it was in the house. However, some of the organizational feedback on the bill, as it currently stands, is in terms of recognizing that, somehow, we need to advance the ball on this issue because the vacuum is so problematic for so many people.
I know Ms. Paré is anxious to say something. However, before she does, there is one point I did not cover. I understand the minister has made himself available to this committee for May31. I was not sure if you are all aware of that.
That is out there, as well.
Line Paré, Director General, External Relations and Gender Issues Branch, Indian and Northern Affairs Canada: I want to provide more detail. The national consultation was launched in September2006. The Department of Indian and Northern Affairs supported the Assembly of First Nations and the Native Women's Association of Canada, which each received $2.7million. We also provided funding to other organizations, such as the Congress of Aboriginal Peoples and the National Association of Friendship Centres.
The ministerial representative went across the country and met with people. The Assembly of First Nations and the Native Women's Association of Canada, through their regional session processes, went out and listened to the voices of Aboriginal women. In March2007, the ministerial representative produced a report, which reflected what was heard during the complete consultation process.
More than 100 consultation sessions took place in 76 locations across Canada. This consultation process cost more than $8million. This consultation was in addition to research that has been done over the years: standing committee reports, international recommendations, discussion papers and public education information sessions that were held by the departmental officials.
There was a great opportunity through the consultation process for people to bring forward their concerns and options for possible solutions. After the national consultation process, the department produced legislative options, sat down with the Assembly of First Nations, the Native Women's Association of Canada and the First Nations land management board and had consensus-building sessions. These sessions included the ministerial representative.
Through that process, a lot of good advice was provided by the organizations, which resulted in changes to the proposed legislation that is before you now.
Senator Brazeau: This legislation has been a long time coming in First Nation communities because of the void that exists. I agree with what you said earlier in terms of the suite of legislation that is being passed, specifically to protect the interests of women and their children. Having participated in these consultations previously, I heard first-hand testimony of First Nations women who had absolutely nowhere to go and who had nothing because of a marriage breakdown. Obviously, this bill will fill that void. Something of this nature has been a call from the various Aboriginal organizations in the past.
In your own words, can you describe what the human cost will be to First Nations women and their children if this bill does not go forward as planned?
Mr. Duncan: I am probably not the best person in the world to describe the human cost, though I did read Saskatoon's Star Phoenix article by Doug Cuthand on Friday last week, I believe. He was quoting statistics from the Report of the Aboriginal Justice Inquiry of Manitoba, which would indicate that spousal abuse and family breakdowns on reserve are significantly higher than in the rest of the population.
Most of us at this table are not First Nations. We have our own perception of what it might look like to have no matrimonial and real property legislation apply to the people and the segment of society we know, but it is obviously magnified immensely.
As I was saying during my presentation, after meeting Joanne and Emily this morning, who have to deal with people who are in this circumstance and who are used to approaching INAC when something does not work, to be told that there is nothing anyone can do for them is tragic.
It is hard to believe that in an advanced country, which is how we like to think of ourselves, this circumstance has been allowed to perpetuate for so long. Because we cannot always develop 100-per-cent consensus on things is no reason not to move forward. We have an obligation, I believe, to move forward.
Maybe Ms. Paré can say something further. I know she is motivated professionally but also personally on this issue.
Ms. Paré: I am also a member of the First Nations. I am from the Gesgapegiag First Nation; but from a public servant point of view, this piece of legislation is important. This bill is something that is overdue. It fills a legislative gap. That legal protection is something that people take for granted if they live off reserve, but if they live on reserve, they do not have it.
It is interesting when we talk about human cost; we do not have statistics about human cost, but I will give an example. If the woman is currently in the house with the children and the children are still in the school, what happens to them if they have to leave the community? The woman has nowhere to go. She brings the children off reserve, and they lose the attachment to the extended family — to grandparents, aunts, uncles, cousins and friends in the school. They are displaced; they have no place to stay. That is one element of the human cost.
With respect to the human cost in the situation of domestic violence, if someone in the house needs emergency protection right now, there is a huge human cost if we do not ensure there is legal protection for people living in the communities.
If a couple has a house, they have invested in it and they have lived in the community for many years, and there is a breakdown of the relationship, one of the spouses who has invested in the house cannot access half the value of what they have both invested in. There is an economic cost to not having legal protection.
Senator Lovelace Nicholas: Regarding assets of the property, you said in the event of death, divorce or separation — I do not have the copy of the bill — what happens to the non-native women who live in these communities or non- native men?
Mr. Duncan: They take interim possession but not final possession. It is clear that we are not trying to break the tradition that the Indian Act presupposes, which is that First Nation lands are owned by First Nation members.
Senator Lovelace Nicholas: Is it up to the First Nations community how to handle this situation?
Mr. Duncan: No, that is what the interim legislation provides for. I suppose if a First Nation, after BillS-4, were to decide something different, that would be appropriate, although I do not think there is any move in that direction that I am aware of. I do not know if Mr. Jacques has anything to add to that.
Karl Jacques, Senior Counsel, Department of Justice Canada: To come back to the protection of non-members or non-Indians, they are entitled to the same remedies. They are entitled to ask the court to stay in the house or to have possession for a limited time.
Senator Lovelace Nicholas: Talking about all the injustice that has been happening to Aboriginal women over these many years, I blame the Indian Act. That act is an injustice for all Aboriginal peoples. Can you suggest something — like we get rid of it or something?
Mr. Duncan: Some First Nations have done that and we have negotiated; we are not great defenders of the Indian Act, but it is our mandate to supervise it.
Yes, it is an archaic document that will be superseded hopefully through self-government agreements, of which we have many, and we have more and more legislative opt-in options for First Nations on land management, election codes and other measures. Many First Nations are reaching the point where they can make some or virtually all of their own decisions.
I was intimately familiar with the Westbank self-government agreement. I was the critic when that legislation was passed in2005. I talked to many stakeholders — not on reserve but adjacent to — including the municipal and regional governments, who were complimentary. They even went so far as to say they are delivering local services more efficiently and better than we are. These things can and will happen.
Ms. Paré: To add, there is the First Nations Land Management Act and the self-government policy and negotiation. However, with respect to BillS-4, one important component is providing the opportunity for First Nations to establish their own culturally appropriate matrimonial property regime that will respect their culture, values and traditions. That component is important.
It is an important component of this legislation. It brings accountability between the First Nations council and the First Nations members.
Senator Lovelace Nicholas: I think there should be protection or recourse for these women to go to a certain committee — not us, but recourse — because they could be treated unfairly; it is mostly a male-dominated society, especially in the communities around my area.
It happened to me: I was kicked out and had no place to go. With the funding for women having been cut off by the government, women have no place to go.
Mr. Duncan: I will respond to that point. The government has made a strong commitment to women's shelters and to other women's programs, but nevertheless, what you say is correct. There is inequity, injustice and more limited options. I think BillS-4 will be a major help to all those things.
Overlaying this bill, of course, is the fact that the provisions of BillC-21 — which were the amendments to the Canadian Human Rights Act that, until now, have excluded First Nations people living on reserve — will, as of July2011, provide legal recourse through the Canadian Human Rights Act for anyone that feels they have been discriminated against. That is one more reason that we do not want a legislative gap when it comes to matrimonial real property.
Senator Lovelace Nicholas: Legislation is needed. Women are starting to come out of their shells and go back to school. Many of them have never been out of their communities and do not have computers and everything that we have. I am a First Nation and I think it would help them to better themselves.
Mr. Duncan: A true success story is being told frequently about how many Aboriginal women chiefs and councillors we have. They are entering the political process a lot these days. Their reputation precedes them. They are doing a good job everywhere that they are in place.
Senator Lovelace Nicholas: There are two women chiefs in my area.
Senator Nancy Ruth: Mr. Duncan, I am not sure what word to use but it is so good to see this bill come forward at this time. It is great.
Mr. Duncan: Thank you for sponsoring the bill.
Senator Nancy Ruth: You are welcome.
I will follow up on Senator Lovelace Nicholas' questions. I understand that, in some cases, the interim measures proposed in the bill do not apply to First Nations that have entered into self-government agreements or to First Nations under the First Nations Land Management Act. How will gender equality prevail during matrimonial division on reserves that are subject to those two agreements?
Mr. Jacques: I can answer that. The First Nations Land Management Act, FNLMA, provides that First Nations under the FNLMA must adopt matrimonial real property codes. It is the same under self-government agreements. The guidelines are such that MRP must be discussed and negotiated into the self-government agreements. MRP would be covered in those agreements.
Senator Nancy Ruth: It is good news to hear that the MRP is there.
In addition to establishing provisional federal rules, it is my understanding that the purpose of the bill is to provide the enactment of First Nations laws on matrimonial interests and rights. How does this purpose affect the right to self- government? How is gender equality respected in self-government? I am not sure it is not the same answer.
Mr. Duncan: No, it is not the same answer. You put a twist on the end that I was not expecting.
At present for a First Nation that does not fall under self-government or the FNLMA, enacting a matrimonial real property regime requires a band council resolution followed by a ministerial sign-off. After BillS-4 comes into force, the only thing the department or the minister will have anything to do with is the process of getting there. That is, they have to do it democratically. Beyond that, they can put anything in the regime they wish to put in, and BillS-4 will empower it. The First Nation does not have to be self-governing to achieve its own matrimonial real property regime. In the interim, they will have the interim federal matrimonial real property regime under BillS-4.
Senator Nancy Ruth: Am I correct to understand that models will be provided as to what matrimonial real property rights will look like? How will these rights be drafted? How many will there be?
Ms. Paré: This is part of the implementation plan. With respect to implementing this proposed legislation, there will be three components: first, public information to increase the awareness of the legislation; second, training for police officers and judges; and, third, support of a centre of excellence. The centre of excellence means a national organization independent from the government will provide information, advice and examples of matrimonial real property regime templates. Through the centre of excellence, First Nations can access examples of existing First Nations matrimonial property laws.
Senator Nancy Ruth: Will all three of those components be funded by the federal government?
Ms. Paré: Yes.
Senator Nancy Ruth: We will receive testimony from groups asking how the government can bring in such an act when it does not provide more housing on marriage breakdown, shelters, judges, counselling or money for this, that and the other thing. Can you tell me why this bill does not include any monies for those sorts of things? How was the decision made?
Mr. Duncan: I probably cannot tell you the motivation behind not including them in this bill but common sense dictates that some of those costs would be less than current because we are dealing with eliminating dislocations that have been horrendous in their financial consequences.
Senator Nancy Ruth: Can you explain a bit more how that would happen or tell us a story about how that would be?
Mr. Duncan: In a family breakdown, let us assume that the woman and children are kicked out of their home and are faced with an inability to support themselves financially. They look to the government to support them for some period of time, unless a matrimonial real property regime is in place.
Senator Nancy Ruth: Is that off reserve?
Mr. Duncan: Yes.
Senator Nancy Ruth: They come under provincial jurisdiction.
Mr. Duncan: In many cases, they are still status Indians and will still have considerable financial support federally. Perhaps Ms. Paré can expand on that situation because I am sure there are other consequences.
Ms. Paré: It is an interesting question. You mentioned housing. The purpose of this proposed legislation is to close a legal legislative gap that has existed for many years. That is the purpose of BillS-4.
With respect to socio-economic issues and the challenges facing many Aboriginal communities and individuals, these issues are outside the scope of this proposed legislation. The Government of Canada is working with Aboriginal organizations and communities to look at how the situation can be improved, for example in housing. I will give you an example. In Budget 2010, the Government of Canada announced additional funding for communities to build additional housing and to renovate existing housing. The additional funding is $400 million over two years. The Government of Canada is working with Aboriginal organizations and with the provinces and territories to improve the situation of Aboriginal education. The Government of Canada has a framework on Aboriginal economic development. Through this framework, INAC, who has the lead, will engage many people and many organizations to look at how to improve economic development opportunities for people, including what to change with respect to the economic development program under INAC.
The purpose of BillS-4 is to close a legislative gap.
Mr. Duncan: You make a correct observation. We probably will hear all of those comments on virtually every First Nations bill that goes forward. We cannot have every bill become an omnibus bill, which is requested here. We have taken many measures on all those economic fronts. We invested much in the most meaningful issues from infrastructure and housing standpoints.
For example, our strategy on water has taken almost every high-risk water system and fixed it. We have addressed about two thirds of the priority water systems. We are spending $330 million over the next two years to continue that progress. I am sure water legislation will come forward in the near future.
Some problems are exacerbated as we go further north in the country. The House of Commons Standing Committee on Aboriginal Affairs and Northern Development has spent a lot of time dealing with northern issues. That is the subject of our current study. We talked to people about housing when we were in Iqaluit and Yellowknife. The funding invested in housing is starting to make a positive difference.
Senator Baker: I have great respect for the parliamentary secretary appearing before the committee. I served with him in the House of Commons. He did a tremendous job during that period for fishermen on the West Coast of Canada.
Ms. Paré, at the end of your summation on the history of the bill, you said that consultations took place and changes were made to the proposed legislation we have before us.
Are you saying that changes were made to this present bill from the previous version of the bill in the House of Commons last year?
Ms. Paré: The consensus-building phase took place in the spring and summer of 2007. Following those consultations, the department had in mind some options for a legislative solution. They sat down with the Assembly of First Nations, the Native Women's Association of Canada, ministerial representatives and the First Nations land management board. Discussions about various options were pursued. From those discussions, the department had good suggestions from the representatives to produce the draft legislation introduced as BillC-47, which became BillC-8, and which is now BillS-4.
Senator Baker: This is the third draft of the same bill that we have before us.
Ms. Paré: It is the same draft legislation with a different number.
Senator Baker: The change in the number will not help much for the reason I ask. Is this the first time that a committee of Parliament will examine the bill and call witnesses to hear testimony?
Ms. Paré: Yes.
Senator Baker: It is the first time that all those interest groups and people interested in the legislation will appear before a parliamentary committee to voice their opinion and be cross-examined by senators. I thought this was happening with the bill last year.
Mr. Duncan, the bill seemed to move along in the House of Commons. It seemed to have support from the NDP and the Bloc Québécois to go to committee. Then there was a hoist — correct me if I am wrong.
Mr. Duncan: There was a hoist.
Senator Baker: There was a six-month hoist to eradicate the bill.
Mr. Duncan: Yes.
Senator Baker: That was made by the Liberals.
Mr. Duncan: Yes; Todd Russell.
Senator Baker: For some reason, the Bloc Québécois and the NDP then changed their positions and the bill died after that.
Looking at the bill objectively, if this is the same bill, unless the political parties have changed their positions, this bill may not pass the House of Commons. Is there a change in the position of the political parties?
Mr. Duncan: The hoist bill was defeated 125 to 120 in a close vote in the House of Commons. I think the position the Liberals took was based largely on feedback from national Aboriginal organizations. The two national Aboriginal organizations most critical of the bill at that time were the Native Women's Association of Canada and the Assembly of First Nations.
I understand they now say they want to work with the government to have this legislation move forward. That will not happen with a hoist amendment.
Your next question probably will be, what is the rationale for tabling the bill in the Senate as opposed to the other place?
Senator Baker: We give better consideration to legislation; I know that.
Mr. Duncan: We have multiple bills heading our way. We are dealing with legislation now and will continue to do so. We are dealing with BillC-3, the McIvor legislation, which is controversial. That legislation is part of the picture.
However, the bigger part of the picture is that this Senate committee started the ball rolling on this whole issue. This Senate committee is an appropriate and proper place for the bill to be. I expect great things.
Senator Baker: In other words, you expect quick passage.
Since the minister raised BillC-3, it must come to the Senate after it passes the House of Commons. The Court of Appeal of British Columbia gave the federal government until April1 to pass legislation. It was not passed and the court granted an extension until July15.
Mr. Duncan: Something like that.
Senator Baker: Do you hope to pass BillC-3 and have it before the Senate before the summer break?
Mr. Duncan: I hope so.
Senator Baker: Otherwise, you will be violating the court order.
Mr. Jacques, I want to ask you a question. A great deal of this bill deals with emergency protection. It starts at emergency protection order, which was referenced by Ms. Paré a moment ago. I can well understand why some people look at the legislation and say it is legally complex.
As far as emergency protection orders are concerned, these are ex parte orders that are sought by one of two parties, either the woman or the man. An order is given in private; it is not inter partes. It is ex parte and privately given. Then it is issued to the police for execution, in this case. After that, there is a review of that order normally, depending on the province we are talking about. Regardless, they have their own code and system set up. I do not know what rules of court they will follow but I presume they will follow the normal rules of court.
Do you think there will be a problem in executing the orders in certain circumstances? This is not a normal situation. They have a court issue an ex parte order to be delivered and executed immediately, say, taking possession of a home and extracting one person from the home.
Do you see my point? It will be difficult to do. It will lead to complications that do not exist outside of this situation.
Mr. Jacques: As it stands now, you are right. The order is made ex parte; that is, in the absence of the other party there. There is also a review mechanism of that decision to be made. If the order is made by a justice of the peace, the bill provides that the decision will be reviewed by a judge of the court within three days.
Yes, the order will be executed, for instance, despite the fact the person will apply for a review of the decision. As you mentioned, it is true that, in some instances, the order will be executed despite the fact that the person being kicked out is contesting it.
Senator Baker: That is the problem with emergency protection orders. They are necessary, of course. However, one side is given, and the order is executed.
It is executed here, say, on a reserve. What procedures do you envision having to go through; are there any extra procedures in the execution of those orders? Have you thought about that issue?
Mr. Jacques: The order will be executed like any other order. A police officer will go on to reserve to execute the order. It will not be different from any other kind of execution of order that an officer will try to execute on reserve.
Senator Baker: What rules of court will the person contesting the order have to follow? They will need a lawyer to contest it, but the rules followed are whatever rules of court issued the order; is that right?
Mr. Jacques: It depends on the province. The province decides which court will deal with this issue. They will issue some rules of court to deal with those appeals or reviews.
Senator Baker: If the justice of the peace issues an order, then the order is sent to the court. It could be a Superior Court judge who hears the review later, or it could be a provincial court judge.
Mr. Jacques: Yes.
Senator Stratton: Welcome. To follow up with Senator Baker's line of questioning, I am interested in procedure, as well. In my reading of the bill, clause21 on page12 gives that period of time. When they kick someone out, it is for a period of 90 days.
Senator Baker: Yes, it is 90 days. That period can be extended.
Senator Stratton: Yes; is that period automatically extended or does it have to be re-applied for? What happens after those 90days?
Mr. Jacques: The person applies to have it extended and it can be extended only for another period of 90 days.
Senator Stratton: What happens after that?
Senator Baker: That is a good question.
Mr. Jacques: Depending on what —
Senator Stratton: The individual is still violent and it has been 180 days. What happens then?
Mr. Jacques: A person can still apply.
Senator Stratton: You said it can be extended only for another 90 days.
Mr. Jacques: Yes, on the same basis or due to the same cause: If an individual returns to the home after that period and there is still some violence, a person can re-apply.
Senator Stratton: The individual has the right to return home after the 180 days; is that what you are saying?
Mr. Jacques: Yes.
Senator Stratton: That is something to look forward to if you are the woman. I would be nervous about that situation.
My next question is about occupation of the family home. Again, on page11, clause19, it is 180 days. Here is an example: I am an Aboriginal and I die. My spouse is non-Aboriginal. She has six months to get out, right?
Mr. Jacques: She is guaranteed 180 days in the house. During that time, she can still apply to the court for possession after that period of time.
Senator Stratton: What do you mean by "possession"?
Mr. Jacques: Occupation of the family home.
Senator Stratton: She can take possession of the home on a permanent basis?
Mr. Jacques: No; she can ask to stay in the house for a limited period of time.
Senator Stratton: I always become hung up when you stay "limited." We have to read and find out it says 180. After 180days, what happens to the woman; must she leave?
Mr. Jacques: No; 180 days is a minimum guarantee.
Senator Stratton: Right.
Mr. Jacques: During that time, the person can apply to the court for permission to stay in the house for a longer period of time.
Senator Stratton: There is no definition of "longer period," though, is there?
Mr. Jacques: No; that is determined by the judge hearing the case. It is based on a series of criteria that are provided in the act.
Senator Stratton: Ultimately, she can be out on the street with her kids, can she not?
Mr. Jacques: She can be, but the interest of the child is one of the important things the court takes into consideration.
Senator Stratton: That is what I am getting at. After a period of time goes by, 180 days, and there is an extension, if it is then found that she does not have a right to be there, how does she get assistance to find the appropriate housing for herself and her children? What happens then? Does it become void? Does the province come in and take over? What takes place?
Ms. Paré: I do not think this situation will different than living off reserve. For example, there is a woman with children. After nine months of staying in a house, the court reviews all the considerations, including the interest of the child to stay in the community and be connected to the community. Let us say the judge makes the decision she must leave. The children belong to the community.
She can then refer to social services, outside Aboriginal support services, etcetera, to find a place to stay with the children and help them to help her to register the children for the next school year, etcetera.
Senator Stratton: Ultimately, I am reading that she can stay on the reserve if they can find accommodation, because that is where the children are. That is where the children are being raised. That is where their schooling is and where their friends are. The community does not want to interrupt that, so it will make every effort to allow them to stay on the reserve.
Ms. Paré: The community, the extended family and social services can look at all the possibilities to help the mother and the children stay in or close to the community.
Senator Mitchell: I want to follow up on Senator Stratton's question. Does that provision, the 180 days that can be extended, apply both to a widow and someone who is in the process of a divorce?
Mr. Jacques: It is only in the case of a widow; the death of a spouse.
Senator Mitchell: If that woman lived in a home that she and her spouse owned off reserve, there is no question that she can stay in the house; but in the case of this provision in your legislation, there will be a question. It has not solved the problem, has it? It has only extended the problem if they have to go to court to find out whether they can stay there. They do not have to do that if they are in a house off reserve in any other circumstance; is that right?
Mr. Duncan: That is correct in a sense because this bill respects the fact that First Nations ownership on reserve is a requirement. Many of these presumably would not be.
Remember, these are interim provisions that can be changed by the community if they so choose. Many communities at this point, or at least communities that I am aware of, will probably choose a different direction from the standpoint that they have a large population already of non-First Nations on reserve. The chief and council already recognize that they have to cater to the interests of those people as well as to the interests of their members, because they are all one family in a sense. Therefore, they may make a different judgment.
Senator Mitchell: Knowing that they may make a different judgment, as you have indicated — I assume that judgement will be based upon the process of consultation — why have you gone this route then? Why have you not gone the route that you are sure so many of these groups would want?
Mr. Duncan: This bill empowers the First Nation at the local level to create their own regime.
Senator Mitchell: This is interim. Then we ask ourselves, how long is interim, which is my next line of questioning.
First, I think Ms. Paré indicated that there were three different phases of the process that will be funded federally — the centre of excellence and two others. What about funding the Aboriginal groups' costs and process for developing their own legislation? Will there be support for those groups that do not have any resources to develop their own legislation?
Ms. Paré: There is no direct funding to support directly the First Nation in designing and enacting their First Nation law. The centre of excellence is a cost-effective way of ensuring that information, best practices or good examples research is undertaken and provided to First Nations.
I also want to make a point. You talked about —
Senator Mitchell: They do not receive any help, is that right? They will have to figure out how to develop their own legislation.
Ms. Paré: They will receive support from the centre of excellence with respect to advice, information, research templates, etcetera.
You mentioned the 180 days. We have to remember that right now there is no legal protection. If someone in the community needs to have exclusive possession of the family home for a period of time, there is no legal protection now. With respect to BillS-4, the two components are that it provides First Nations with the process for enacting their law; and in the meantime, there are federal provisional rules so that someone who needs legal protection will have it.
Senator Mitchell: The bill provides a process; it provides central research and models that will be applied, which will be given to Aboriginal groups. However, if the Aboriginal groups do not have the money to hire lawyers and others who can deal with that process — it is all process — I bet we will be sitting here five or ten years from now with almost none of these pieces of legislation in place, unless you have some way of suggesting that these groups will be able to take on this complex project. It has taken the Government of Canada how many years to enact legislation, and suddenly they are to do it for themselves without any resources?
Mr. Duncan: It is not like there has been a lack of movement on MRP at the band level. We probably have at least a couple of dozen First Nations across the country that have their own rules now. They have offered to help any First Nation that is looking at MRP, in terms of giving them formats and examples of rules that work in their community. The centre of excellence builds on that idea, but it is not like there is nothing there now.
I know that Chief Robert Louie of the Westbank First Nation has already become almost a volunteer repository of this kind of information. The band has shown leadership in many aspects of First Nation governance and it has been willing to share its expertise.
You are talking to a broader issue here as well, which is governance and capacity. That is an area where the department and the government have been focused on ensuring that we provide the appropriate resources for proposals to increase governance and capacity. To suggest that anyone will not be able to develop legislation because of a lack of capacity, I think is not correct.
Senator Mitchell: You mentioned the centre of excellence. Do you have money in this year's budget for the centre of excellence? Is it started?
Ms. Paré: With respect to the implementation and all the details, I think the focus is to start the legislative process first. There was an announcement in Budget 2006 about matrimonial property. It was announced then.
Senator Mitchell: Was it funded in the budget? Is money set aside in this year's budget for the centre of excellence?
Ms. Paré: Money was identified for six years in Budget 2006 to support the implementation of the legislative solution for matrimonial real property.
Senator Mitchell: When do you think the centre of excellence will be established?
Ms. Paré: It will depend on the time it takes for the legislative process to continue its course. Maybe my English is not good.
Mr. Duncan: It will not be before the legislation is in place.
Senator Mitchell: Finally, I have two questions on the referendum. The first one has been raised by Aboriginal groups; why do they need to have a referendum for what is basically legislation when no one else does? Second, in addition to that, will non-Aboriginal peoples — people who live on reserves who will be affected by this legislation — be allowed to vote in the referendum?
Ms. Paré: On the first question, with respect to non-Indians and non-members, they will not have the right to vote. With respect to the voting, it is members who are 18 years old and over, living either on or off reserve, that will be eligible for voting to approve or not the First Nations matrimonial property regime.
With respect to the approval process, this is to ensure the right balance of individuals, as well as the collective interest of First Nations. Throughout the consultation, the department — the ministerial representative — heard loudly and clearly that First Nations members want to learn about what the First Nation council will develop with respect to matrimonial property regime. They want an opportunity to say and to voice, hopefully, their approval of the First Nations matrimonial property law. That is the approval process.
The Deputy Chair: I am pleased with the proposed legislation. I was a member of the steering committee in 2003. I am pleased that there is a movement, but there is always work to be done. I am preoccupied with something. If I understood you correctly, Mr. Jacques, you said that a woman who is separated will be able to go to a provincial court to resolve matters as set out in the bill. My concern is that the various provincial courts will present different interpretations of the bill. Given that there is no precedent yet, it will be a challenge for people who take these matters to the courts. The bigger challenge will be that lawyers cannot advise clients on how this proposed legislation will be interpreted. Can you comment on that issue?
Mr. Jacques: I cannot comment specifically, but I do not think it is different from any other proposed legislation. Ms. Paré can answer the question respecting the training of judges, which is one component of the implementation. Most judges will be educated as to the intent and context of the bill.
The Deputy Chair: Is there a budget for training judges? What kind of training will it be? How many hours will it entail?
Ms. Paré: As I mentioned, the details of the implementation plan have yet to be prepared. The parliamentary secretary mentioned that the centre of excellence will not be created before the bill is passed. I do not have the details with respect to the specifics of the training for judges. We envision funding to help in the training of judges so that they fully understand the legislation and that through the federal provisional rules, First Nations will be able to make a presentation. If the judge is hearing a case from a First Nation, then the First Nation can make an appearance to talk to the judge about the culture, values and traditions in the community so that the judge understands the reality of the community before making his or her final decision in the case.
Mr. Duncan: In addition, this committee will be well advised to ensure that the Canadian Bar Association, the Canadian Human Rights Commission and others are not only invited to appear as witnesses before the committee, but also to participate in the general proceedings. I had my eyes opened when the Canadian Human Rights Commission followed our proceedings on BillC-3 and then later appeared as witnesses. They had been spectators so they were up to speed on the issues. Your question presupposes that there will be many potential changes, so these groups should be advised as soon as possible.
The Deputy Chair: I am pleased to tell you that they have been advised and they will appear before the committee.
I have a follow-up question. For example, when a woman is out of her home off reserve, will she be provided with legal aid? Is there such a provision? How will she access justice to assist in her rights under this proposed legislation?
Ms. Paré: With respect to access to justice, in particular in remote communities, the limitations are not restricted to this proposed legislation. A broader discussion should take place with respect to the issue of access to justice. Legal aid falls under provincial-territorial jurisdiction and they administer it for residents who require the services.
The Deputy Chair: We all know there have been substantial cuts to legal aid, especially for family law issues. Having legislation such as proposed in this bill but not being able to enforce it will be a challenge. As a committee, we will look at it.
You have given us more time today than originally agreed. As I mentioned to you earlier, if we have more questions, we will send them to you in writing and ask that you respond in writing before May31, please, so that we may proceed with our work. I thank you for coming today, and we look forward to working with you again. As you can see, this meeting is only the beginning. We have many questions on how the bill will be implemented, although we are happy that it was introduced.
(The committee adjourned.)