Proceedings of the Standing Senate Committee on
Human Rights
Issue 3 - Evidence - May 31, 2010 (afternoon session)
OTTAWA, Monday, May 31, 2010
The Standing Senate Committee on Human Rights, to which was referred Bill S-4, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves, met this day at 2:30 p.m. to give consideration to the bill.
Senator Janis G. Johnson (Chair) in the chair.
[English]
The Chair: Good afternoon. We will now resume our hearings on Bill S-4, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves.
Appearing before us this afternoon are witnesses from the Canadian Human Rights Commission, with the Deputy Chief Commissioner, David Langtry.
David Langtry, Deputy Chief Commissioner, Canadian Human Rights Commission: Thank you, senators. On behalf of the Canadian Human Rights Commission, I want to thank you for the invitation to speak today on the traditional territory of the Algonquin people.
Bill S-4 deals with fundamental human rights issues. International and domestic human rights standards call for the equal treatment of women under the law and the protection of women and their children against violence. The need to have fair, available and accessible systems to deal with matrimonial real property on reserves is an urgent matter. For too long, this gap has left women and their children particularly vulnerable.
[Translation]
The commission has jurisdiction over federally regulated employers and service providers. This includes First Nations governments. The Canadian Human Rights Act defines our mandate in specific terms regarding discrimination.
There are 11 grounds of discrimination under the act. Four of them are particularly relevant to this discussion: sex, marital status, family status, and national or ethnic origin.
[English]
Our reading of Bill S-4 suggests that the division of matrimonial assets will be handled by provincial and territorial superior courts, or through a regime developed by First Nations.
The commission might be able to accept complaints against the federal government if someone alleges that the bill has a discriminatory effect. The commission might also accept complaints against First Nations governments if someone alleges that the adopted matrimonial real property regime is discriminatory.
The commission screens complaints that can then be mediated, dismissed or referred to the Canadian Human Rights Tribunal for further inquiry. The role of the tribunal is to determine whether discrimination has taken place.
Although the commission's mandate is clear — to accept complaints arising out of employment or the provision of goods and services by the federal government and by federally regulated employers and service providers — our jurisdiction is being challenged. Under section 5 of the Canadian Human Rights Act, CHRA, most government activities have been considered to be a service; however, recent court decisions have narrowed this definition.
Since the repeal of section 67 of the CHRA, all complaints the commission has received have been challenged by the attorney general on several issues, including what constitutes a "service." Therefore, we cannot say with certainty that a First Nation's matrimonial real property regime will be considered a "service" under our act.
Under section 6 of the act, the commission can accept complaints regarding residential accommodation. Section 6 may be particularly relevant to First Nations and reserve lands. However, section 6 is rarely used and there is little judicial interpretation of its scope.
In short, the commission's ability to accept complaints in relation to matrimonial real property legislation and First Nations regimes is unclear.
[Translation]
The Standing Senate Committee on Human Rights has heard from a number of witnesses that will be directly impacted by this legislation. In your deliberations, we would encourage Senate committee members to consider the following three questions.
[English]
First, does the proposed legislation provide women with fair access to justice? After all, it is women who most often suffer disadvantage following marital breakup. Second, does the proposed legislation ensure women will be able to access their rights in a safe way? Third, do First Nations communities have the capacity they need to develop and implement their own matrimonial real property regimes? If not, First Nations might be precluded from developing their own regimes in a way that respects cultural laws and traditions, and balances collective and individual rights and interests. Further, this preclusion could defeat what appears to be the intention of this bill; namely, to provide a temporary and transitional mechanism for dealing with matrimonial property on reserves while First Nations develop their own regimes.
As you consider Bill S-4, you may wish to refer to the report prepared by Wendy Grant-John, which proposes viable solutions to address marital real property on reserve.
In conclusion, the commission supports a system that results in equality before the law and the fair treatment of all parties, including women and children who may be particularly vulnerable after a marital break-up or the death of a spouse.
[Translation]
Thank you. I will be happy to take your questions.
[English]
The Chair: Thank you, Mr. Langtry. We will have questions, but we will hear from the other witness first. Ms. Schellenberg and Mr. Devlin will speak next.
Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association: Good afternoon. I am a lawyer with the Legislation and Law Reform Department of the Canadian Bar Association. The CBA is a national association representing over 37,000 lawyers, law students, notaries and academics from across the country. Our mandate includes improvements in the law and the administration of justice, and it is from that perspective that we appear before you today.
With me is Mr. Devlin, an Executive Member of the CBA's National Aboriginal Law Section, which represents lawyers specializing in Aboriginal law from all parts of the country. I will leave it to Mr. Devlin to address the substance of our brief.
Christopher Devlin, Executive Member, National Aboriginal Law Section, Canadian Bar Association: Thank you very much. I am here representing both the Aboriginal Law Section and the Family Law Section of the Canadian Bar Association. Our brief was handed out to you before the session started. I will refer to it, although I will be making concise statements about it.
The main thrust of our submissions to you is that the CBA supports both policy objectives of the act: the protection of individual rights of spouses and their children to matrimonial property located on reserve, and the protection of collective rights and interests of First Nations to their reserve lands.
Bill S-4 is about balancing these two objectives. The CBA in its written submissions offers modest tweaking, if you will, to build significant legal protection for women and their children on reserve. Nothing I say should take away from the importance of that policy objective.
Our brief contains numerous recommendations, and I will not go through all of them. I will leave them for the committee to review. I want to focus on the balancing of rights, and particularly the creation of possible life interests on reserve to non-Aboriginal people. These recommendations are based on concrete laws and legal principles that we wish to bring to the committee's attention.
I will dip into our brief at page 11 of the English version and I believe the section begins on page 12 of the French version.
As I said, the bill is trying to achieve a balance between these two policy objectives. In doing so, the bill could create long-term rights to a reserve for non-band members and non-Aboriginal people. I refer here to the exclusive occupation orders that can be issued under the bill. I will have significant submissions to make on that subject in a moment.
Each policy objective the bill tries to achieve is rooted in Canadian law. Therefore, we look to the federal Divorce Act and equality provisions of the Canadian Charter of Rights and Freedoms, section 15, for the first objective, which is the protection of individual rights of spouses and their children. The second objective, the collective rights and interests of bands, we find governed or expressed in the Indian Act and also in section 35 of the Constitution Act, 1982.
I want to focus now on a little bit of background on the collective rights of the bands.
It is clear under section 2 and section 18 of the Indian Act that the purpose of non-inalienability of reserve land is to ensure reserve lands remain for the benefit and use of Indian people and the band.
The Supreme Court has also commented on this purpose in the Queen v. Devereux case, which we refer to in our brief. The scheme of the Indian Act is to maintain, intact for bands of Indians, reserves set apart for them regardless of the wishes of any individual Indian to alienate to his own benefit any portion of the reserve of which he may be a locatee.
The Indian Act goes further in section 28. It prevents individual Indians from alienating their interests on reserve to non-Indians, and the minister can only issue permits to non-Indians for the period of one year or, with consent of the band council, for longer periods.
Similarly, non-Indians cannot inherit under the Indian Act. They cannot inherit real property on the reserve if they are a non-Indian beneficiary in an Indian's will.
The historical significance for setting aside Indian reserves lies in this public policy of general inalienability of reserve land. We also refer to the Opetchesaht decision in our brief. Common law and the Indian Act both guard against erosion of reserve lands.
The balance to be achieved under Bill S-4 is that both domestic law and international treaties insist inalienability cannot be an excuse for disregarding the interests of children and common law or married partners. Nor can domestic rights become the thread that unravels the fabric of band ownership. That is the crux of the balance on which we wish to focus.
Our section entitled "Creating New Rights and Interests" begins on page 13 of the English version and on page 15 on the French version. We review occupation of the family home and emergency protection orders. In our view, these issues are balanced measures. Although they provide for occupation of a part of reserve land by a non-Indian, they do so for limited periods of time. These periods of time can be judicially ordered. This is not a complete alienation of reserve land by any means.
Under the Exclusive Occupation Order in section 25 of the Bill S-4, the court is given ability to grant an exclusive occupation order respecting the family home. The court is given discretion as to the duration of the order. The bill does not say how long that order should be.
By omitting any guidance regarding the length of this order, the court could create a life interest for a non-Indian on reserve that could last for a long period of time. It is not unimaginable to consider a marriage breakdown of a young person — for example, 18 or 20 years old — whose non-Indian spouse lives until they are 80 years old. That situation can result in a 60- or 70-year life interest in the reserve. That land will not be in use by the band for that period of time.
Later in the submission, we indicate that current judicial policy talks about the doctrine of minimal impairment of Indian interest in a reserve. One factor the court should consider in its list of factors under section 25 of Bill S-4 is the doctrine of minimal impairment established by the Supreme Court.
Similarly, when making exclusive occupation orders, the court should take into consideration current government policy, for example, with respect to leasing Indian lands to non-Indians. Currently, Indian and Northern Affairs Canada limits orders to 49 years. The court should be given direction to consider these additional factors under the bill when considering the length of time for exclusive occupation orders. The best interests of the child and issues of family violence are all significant factors that need to be in the court's mind.
Bill S-4 allows band councils to make submissions on exclusive occupation orders. However, band councils tend to be small, local governments that can often be involved in the family disputes that arise in marriage breakdowns. To the extent that we want these matters of broad public policy — the inalienability of land and the doctrine of minimal impairment established by the Supreme Court of Canada — those factors should be separate and distinct factors for the court to consider in the list of factors in section 25 of Bill S-4 in the event that the band council forgets to raise them or chooses not to raise them. Those factors would be, nonetheless, before the court and the court would be given direction to consider them through the legislation.
We will stop there.
The Chair: Thank you, Mr. Devlin. Are there any further comments before we go to questions?
We heard from many witnesses this morning that accessing provincial courts can be difficult. Bill S-4 does not address directly community dispute resolution mechanisms, which the witnesses indicate would be more appropriate. I ask both of you to comment.
Mr. Devlin: I am sorry, I do not understand the question in terms of what is more appropriate. We have submissions on access to justice.
The Chair: Bill S-4 does not address community dispute resolution mechanisms, and our witnesses say these mechanisms are a more appropriate way to proceed.
Mr. Devlin: The bill does not enable indigenous legal traditions to be at the forefront. The bill is somewhat prescriptive in the provisional federal rules on how family law disputes will be determined. To the degree that the bill models itself after the First Nations Land Management Act in developing new laws, it is procedurally prescriptive.
That said, there is no reason why a First Nation that wants to enact its own matrimonial real property regulations or rules under the act cannot do so according to its indigenous legal traditions, and incorporate them into its own laws. However, the provisional federal rules are boilerplate and do not have room to address indigenous legal traditions.
The Chair: How can the twain ever meet in the bill? They will not.
Mr. Devlin: The intent of the bill, although this intent is the risk my colleague identified, is to be provisional.
The Chair: That is correct. First nations will develop their mechanisms and proceed.
Mr. Devlin: That is correct.
Senator Kochhar: When Indians are married to non-Indians, are their children non-Indians?
Mr. Devlin: That is a matter of the status provisions of the Indian Act. Bill C-3 will help address that matter too. Bill C-3 will determine how many non-Indian children are Indians and non-Indians.
If the spouse is not an Indian or a band member, and only members are allowed to reside on reserve, currently the spouses have to leave the reserve. They will be able to stay under Bill S-4.
Senator Kochhar: Do they automatically become Indians under the bill?
Mr. Devlin: There are no membership provisions in the bill. Those provisions are a completely different set of provisions of the Indian Act.
Mr. Langtry: At the beginning, I ought to have introduced my colleagues from the Canadian Human Rights Commission. Sherri Helgason is the Director of our National Aboriginal Initiative. Valerie Phillips is Counsel with Legal Advisory Services.
I will ask Ms. Helgason to respond to the specific question you asked, but will preface her comments.
Alternative dispute resolution is important to the Canadian Human Rights Commission. Prior to dealing with any complaint that comes before us, we consider whether an alternative dispute mechanism is available outside of the commission where it might be dealt with more appropriately.
Again, picking up on some of the comments that were made this morning, with the repeal of section 67, this area is of considerable importance, significance and interest to the Canadian Human Rights Commission. As a result, we have embarked, through the commission's National Aboriginal Initiative, on initiatives in alternative dispute resolution development. I will ask Ms. Helgason to speak to that area.
Sherri Helgason, Director, National Aboriginal Initiative, Canadian Human Rights Commission: As my colleague Deputy Chief Commissioner Langtry mentioned, you heard from a number of witnesses this morning that community- based mechanisms are often most appropriate to resolve the kind of disputes that could be brought under matrimonial and real property legislation. Community-based mechanisms may be more consistent with the inherent right to self- government and are more likely to respect legal tradition and customary laws.
In fact, part of the legislative amendment that repealed section 67 included a provision that requires that for decisions made under the Canadian Human Rights Act, due regard be given to First Nations legal tradition and customary law, particularly the balancing of individual rights and interests with collective rights and interests to the extent that these rights and interests are consistent with the principles of gender equality.
Over the last year, the commission has committed, within limited resources, to assisting First Nations to increase their capacity at the community level to prevent, manage and resolve human rights disputes within their own communities. For example, we are working on guiding principles for what First Nations may wish to consider in the development of community-based alternatives — or, as we call them, internal conflict resolution processes.
The number of First Nations that have such processes already in existence is not known. Some communities may have fully functional mechanisms already capable of handling human rights disputes and, potentially, matrimonial and real property disputes. However, others may lack capacity to put into place such dispute resolution mechanisms.
For our own part, we have initiated a pilot project with the Southern First Nations Secretariat, which represents seven First Nations in southwestern Ontario, with the objective of collaborating on a process to develop community- led processes for resolving human rights disputes before the end of our transition period repealing section 67 in June 2011. We have the intention of documenting the process used to arrive at the end objective, with a view to disseminating a best-practice guide which might be of assistance to other First Nations willing to develop their own internal processes.
In respect of how that process can fit within the context of matrimonial and real property legislation, I return to the commission's learning process over the last two years — that oftentimes, community-based alternatives are the best, fastest and most respectful way of resolving such disputes.
Senator Baker: The commissioner, in his presentation, said the following — I am reading from page 1 at the bottom of the page, the second-last paragraph:
Since the repeal of section 67 of the CHRA, all complaints the commission has received have been challenged by the attorney general on several issues, including what constitutes a "service."
Can you elaborate on this statement and what you mean by "challenged"?
Mr. Langtry: Yes; I will preface the answer and then will ask legal counsel to expand on it more. Ms. Phillips is the one who tends to work on the complaints that have been brought with the repeal of section 67.
As you know, prior to 2008, no complaints could be made under any matter that was taken pursuant to or under the authority of, or any provision of, the Indian Act itself. When section 67 was repealed, it opened the door for an immediate application and jurisdiction to the federal government; and there is the three-year transition as against First Nations governments.
We have received a number of complaints with the repeal of section 67, where the federal government has been named, whether that be in the funding of services on reserve or the lack of funding for services on reserve, as well as registration of Indian or what have you.
We have received a number of those complaints; and in each and every case, the response from the federal government as respondent has been to say that it does not constitute a service under section 5 of our act. Therefore, the federal government is challenging whether we even have jurisdiction to receive the complaint. For a more fulsome answer, Ms. Phillips can expand on that.
Senator Baker: In other words, where will the challenge go? Will it go to the Federal Court? At what stage are these things?
Valerie Phillips, Counsel, Legal Advisory Services, Canadian Human Rights Commission: The commission has a mandate to deal with complaints unless it is plain and obvious that we lack jurisdiction. On our initial screening of a complaint, we can reject a complaint only if it is plain and obvious we lack jurisdiction. In the cases that we have received since the repeal of section 67, there is no case law preceding this situation, so it is not plain and obvious. Therefore, we have a mandate to accept those complaints.
In terms of where the decision will go, when the commission makes its decision to accept a complaint, that decision could be reviewed judicially by the Federal Court. It could be decided there. If the commission refers the complaint to the Canadian Human Rights Tribunal, the tribunal could make a decision as to whether the complaint is within its jurisdiction as well as the commission's jurisdiction. The decision could continue to the Federal Court of Appeal, to the Supreme Court of Canada, to determine what constitutes a service under our legislation.
Senator Baker: Now everything is in limbo, is that what you are saying?
Ms. Phillips: Yes.
Senator Baker: For how long?
Ms. Phillips: That depends on the extent of litigation. To back up, the Supreme Court of Canada has said — as I am sure this committee knows — that human rights legislation has to be read in a broad and purposive manner. Therefore, the term "service" has been interpreted to include pretty much everything that the federal government does, until recently. It has been narrowing. Now, both in the Aboriginal context and the non-Aboriginal context, it is unclear what the commission has jurisdiction over.
When will it be resolved? It is unclear. It could be 10 years if it goes to the Supreme Court.
Senator Baker: It is jurisdiction over what is in this act that you are talking about.
Ms. Phillips: It is the jurisdiction of the commission and its corresponding systems to accept complaints of discrimination.
Senator Baker: Your conclusion, on the bottom of page 1 of the commissioner's submission is:
Therefore, we cannot say with certainty that a First Nation's matrimonial real property regime will be considered a "service" under our act.
So that is it. You cannot consider it because you do not have a definition of "service."
Mr. Langtry: If I may, we will continue, and we do continue, to receive complaints, and we continue to refer those complaints to the tribunal. Until a court or the tribunal determines that it is not a service, our view is that it is not plain and obvious that we lack jurisdiction, so we will receive and consider the complaints.
Senator Baker: Would you say that the Department of Justice is being overly adversarial in this matter?
The Chair: Question declined; out of order.
Senator Brazeau: Can I ask a supplementary question?
Senator Mitchell: I want to hear the answer.
The Chair: Do we have a supplementary question?
Senator Brazeau: Yes; with respect to a code, if a matrimonial real property regime is developed by a First Nations community, the bill specifically sets out that it has to be ratified by community members by a vote. Having said that, if a community code is ratified by its members, where do you foresee a complaint going to the commission and for what reasons?
Mr. Langtry: There could be, both in terms of the verification officer as well as the necessity for a ratification vote. I raise this point hypothetically, but to draw the analogy with a complaint we received, regarding the consent required of the minister to a lease that is done on reserve. The allegation was brought to us and the complaint was made that in a non-First Nations context, consent is not required, so that for non-Aboriginals, those kinds of arrangements are not required.
With the verification officer and with the requirement of ratification, somebody can bring a complaint and say, why is that required in a First Nations context when it is not required in a non-Aboriginal context? We would receive that complaint, which could come from either band leadership or from an individual. As well, there might be provisions of the regime that is passed ultimately that a person might say are discriminatory, so the complaint would come to us.
Senator Nancy Ruth: Mr. Langtry, I understand that the Native Women's Association of Canada want some certainty that bands will not bring in some kind of matrimonial real property, MRP, that does not give them some best say in it. Therefore, if there were a vote, it would help the native women of that band both on reserve and off reserve to obtain something they wanted. At what point does that kind of emphasis have weight in a commission hearing if such a claim goes forward? That is why it is in there.
Mr. Langtry: Yes; we are not here in any way, shape or form to speak on behalf of the Native Women's Association of Canada, the Assembly of First Nations or any other Aboriginal or First Nations groups. We are here to talk about what might be brought under the proposed legislation. The question was asked about what kind of complaint there could be, and it might well be, why you are holding us to a higher standard.
Having said that, as a screening body only, we will look at the complaint but we do not determine whether the legislation is discriminatory but rather whether further inquiry is warranted. We may or may not send it on. We might say it does not meet the threshold and dismiss it. That is what we do as a screening body.
Senator Nancy Ruth: My question is for Mr. Devlin on the business of a non-Indian band member having access to a house at the point of a marital breakup. My understanding of the proposed legislation is that it was put in because there are usually issues, and the children are members of the band.
Mr. Devlin: Sometimes.
Senator Nancy Ruth: But not always.
Mr. Devlin: No.
Senator Nancy Ruth: Can you tell me how you see this provision? My understanding is that it is not a case of some White woman having access to a house for 40 or more years. Rather, the provision is in the bill to protect children's' rights to stay in their own home.
Mr. Devlin: Under the status provisions of the Indian Act, there is the second generation cut-off rule. Under the act, there are section 6(1) Indians and section 6(2) Indians; the section 6(1) Indians can pass their status down to their children.
Senator Nancy Ruth: I do not want to go there.
Mr. Devlin: If a section 6(2) Indian parents with a non-Indian, their children are non-Indian. The section 6(2) Indian is a band member and can live in housing allocated by the band on reserve, but those children are non-Indians and non-members of the band, as is the co-parent, whether it is a woman or a man. Upon marital breakup, there is no relationship between the children, who are not band members or Indians. That is one of the mischiefs that the bill is designed to address: Those non-Indian children can live in the family home still, notwithstanding they are not Indians or band members.
Senator Nancy Ruth: My assumption was that the bill was designed to address the fact that Indian children needed to have a right to stay in their home. You have raised the issue that a judge can issue such an order one way or the other and for how many years. Do you think it probable that judges in these instances will give high consideration to the fact of whether these children are Indian or band members?
Mr. Devlin: If the children are Indians and members of the band, it would be persuasive on a judge to let them stay. If the children are not Indians or members of band but the house has been their family home from the beginning, it can also be persuasive before a judge. We fully support the bill enabling those children and giving them the legal remedy to stay in their house. Currently, they do not have that legal remedy. The submission we are making includes how long the exclusive occupation order is for non-Indian children or spouse. The bill does not cap it. As a matter of public policy, that factor should be considered by the judge so that they do not alienate that piece of property or band house for decades and to ensure proper balance. That is what we are saying.
Senator Kochhar: I still do not understand. We are looking after the children. They are the prime objective of the whole bill, yet we are talking about who can stay there and who cannot stay there? For the sake of those poor children, is this proper justice?
Mr. Devlin: The bill gives far greater access to justice for children living on reserve in their family homes than currently exists. It gives far greater legal opportunities and remedies for those children. We fully support that part of the bill. Taking the bill to the logical extremes, we ask whether it fits within the existing legal doctrines about reserve lands and whether we can better balance that situation. There is no question that this bill is about the children and that it provides enhanced legal rights for those children, whether they are Indian or non-Indian.
Senator Dyck: Thank you for your presentations. I will follow up on the community and the Canadian Human Rights Commission. Let us say that a status woman on reserve undergoes a divorce. She believes that she has been handed a decision by the band and the chief that she has to leave. Can she file a human rights complaint against the band, since section 67 of the Canadian Human Rights Act has been removed, because she has been discriminated against on the basis of gender? If she is able to do so, will that remedy some of the situations with regard to the legislative aspect?
Mr. Langtry: The short answer is, yes, but not yet. There is the three-year transitional period under the repeal of section 67, which is until June 2011. There cannot be any complaints filed against a First Nations government. If we fast-forward to July 2011 and that scenario happened, then yes, one of the grounds of discrimination, amongst others, is gender. Therefore, if a woman felt that based on her gender she was being discriminated against by the First Nations government, she would be able to bring a complaint to the Canadian Human Rights Commission. I am not saying whether it will be successful but she would have standing to bring that complaint.
Senator Dyck: If we assume she is successful and there are a number of cases successful in a reasonable period of time, do we need a bill like Bill S-4 to fill that legislative gap?
Mr. Langtry: Once section 67 is repealed, the issue of access to housing may be applicable, whether it is a marital situation or is not. For example, some reinstated women are living off reserve because they were not allowed back on reserve. They might be able to bring a complaint that has nothing to do with the breakdown of a marriage.
Our view is that Bill S-4 addresses the human rights gap in that there is no provision currently for what happens with matrimonial property on reserve in the event of a breakdown of marriage or death of a spouse. The bill addresses that human rights gap, but again, the repeal of section 67 would address issues of housing, whether or not the issues relate to matrimonial property.
Mr. Devlin: The legislative gap still remains with respect to interests on a reserve. Bill S-4 creates new interests on a reserve. The exclusive occupation order is not something that currently exists under the Indian Act. I think that is a necessary thing to the extent that is required to override the land provisions of the Indian Act. My understanding of the Canadian Human Rights Act is that it does not address these proprietary interests on reserve, and that the Indian Act will still apply. We need Bill S-4 to address those interests.
The Chair: I have a question for you, Mr. Devlin. Does Bill S-4 apply to Aboriginal customary marriages?
Mr. Devlin: That is a good question. We addressed this issue partially in our brief. The act talks at this point about a spouse who is a married spouse. It also refers to common-law partners but it referentially incorporates the common- law partner definition from the Indian Act. The third kind of marriage that has been recognized in the common law by the Canadian courts is Aboriginal customary marriages.
There are three different kinds of marriages. It is possible that the customary marriages can be pulled into the common law definition under the Indian Act, which is incorporated referentially under Bill S-4.
In our brief, we have said that the definition of "spouse" should be broadened and consolidated, if you will, to include common-law relationships. That is one of the contributions from our Family Law Section, by the way. In that way, we will not have this bifurcation between married relationships and common-law relationships.
Even with respect to the definition we have here, we would have to read in Aboriginal customary marriages because we talk about a common-law partner, so long as the action is brought within one year of the relationship ending. I am not sure it is as clear as it can be.
The courts have been fairly open to acknowledging Aboriginal customary marriages; there is law in that regard. We also have recognized or married by the indigenous laws of the First Nation. We have that in the definitions we are advocating for "spouse." That is on page 4 of the bill in the English and page 4 or 5 in the French version.
Senator Baker: You have given us a good brief. This is excellent.
Mr. Devlin: Thank you.
The Chair: Therefore, it is covered as far as you can go, I guess.
Senator Mitchell: Thanks to all of you. Mr. Devlin, I also think this brief is excellent. I am struck by the number of what seem to be reasonable recommendations for amendments to the bill. It is not often that this government amends a bill.
Have you submitted this brief to the government in any official way and found out if they might be amenable to amending?
Ms. Schellenberg: We finalized the brief and sent it to the senators. I will forward copies to government officials, as well.
Senator Mitchell: Will you follow up with government to gauge whether there is some communication? Do you expect a response?
Ms. Schellenberg: Now that it is with Parliament, I do not expect a response from the government officials.
Senator Mitchell: Ms. Helgason, I think you talked about your work to develop guidelines for the kind of legislation that First Nations people might implement and develop themselves. That work sounds a lot like the kind of work that will be proposed for the centre of excellence.
Are you developing the guidelines under that rubric? Have you been requested to participate?
Ms. Helgason: No.
Senator Mitchell: Judging by that curt response, was that a problem?
Ms. Helgason: Not at all; we simply have not been engaged in terms of development or thinking about the idea of the centre of excellence.
In terms of our work, we necessarily concentrate on the framework of the Canadian Human Rights Act. With numerous employers and service providers, the commission encourages employers and service providers to have their own internal systems for resolving disputes, and preventing and managing disputes before they escalate into a complaint, which can become a litigious matter. That goes for non-Aboriginal and Aboriginal organizations.
More recently, we have undertaken work with First Nation communities themselves to develop processes to resolve human rights disputes before they come as a complaint to the commission, and processes that hopefully respect the unique cultural laws and values of those First Nations communities that choose to undertake that path.
In response to your question, no we have not been engaged to this point in that kind of work to resolve matrimonial real property issues. However, it does sound reflective of this centre of excellence idea.
Senator Mitchell: There might be synergies there.
Something is implicit in a lot of what everyone has been saying, and explicit in Mr. Devlin's presentation. It is explicit here on page 9 of your brief. You suggest that the government should provide adequate funding and other supports for First Nations to allow them to create and implement their own MRP legislation.
None of this work means anything if First Nations communities and organizations do not have the money to develop a piece of legislation like this. Do you have an assessment of that problem? Are you speaking from some sense of experience you have in the question of capacity?
Mr. Devlin: On page 24, our submission also talks about the access to justice if the provisional federal rules come into play. Several of our members have commented on the fact that, in rural and distant reserves, access to justice is a huge issue; judges and Crowns fly in from time to time.
The bill contemplates emergency protection orders and that kind of thing in situations of family violence, but it can take a month or two before one sees a judge to obtain that order. Similarly, if they are dealing with division of matrimonial property of any sort on reserve, they have to be able to get in front of the court. Having access to that court will be a real challenge.
I think that resourcing is an issue, both with the provisional federal rules and then with developing their own MRP.
Senator Dyck: I was looking at the Canadian Bar Association's concluding paragraph. You essentially say that this bill is an important step forward:
. . . the implications of Bill S-4 over inherent rights of self-government and over First Nations citizens and reserve lands call for in-depth consultation before the Bill proceeds further in the legislative process.
You suggest that the bill "requires improvement and further consultation before moving forward."
How do you see this bill moving forward in terms of revision and consultation? Should they be done at the same time, or should we undertake more consultation first? How do you envision that process?
Mr. Devlin: Ultimately, I will leave to the First Nations themselves the right of informing the government about the assessment of whether there has been adequate consultation or if they are satisfied with the level of consultation. The Canadian Bar Association ought not to comment on that issue.
We make the recommendation as a result of the positions we have seen taken by several of the First Nation organizations with respect to Bill S-4 and its predecessors in the Commons.
We want to provide helpful ways in which the bill can be, as I said earlier, tweaked to better acknowledge existing public policies. That is what we have offered you.
Whether you take a revised version of the bill to consult with First Nations or whether you consult with them first to determine if they like some of the amendments we suggest is in your hands.
Senator Baker: I congratulate you on your brief. We will review it.
An important factor in this bill is the initial emergency ex parte orders that may be given under this act. Bill S-4 addresses the emergency. You asked, as has practically every witness who appeared before the committee, how we will access lawyers to carry out this ex parte process — to appear before a judge and obtain a judge's order regarding the emergency situation in the home.
Your recommendation encourages the federal government to commit resources to carry out implementation of the bill. It says: "to allow legal aid plans to provide specialized lawyers knowledgeable in family and Aboriginal law for eligible clients. . . ." That is a wonderful suggestion.
Do you refer to the provincial legal aid plan or do you refer to another plan you have in mind whereby the federal government will step in to provide attorney general rates to prospective lawyers, which will be better than legal aid rates? If you refer to the existing legal aid plan, how can the federal government provide that plan when the provinces operate the legal aid plan and make the decisions? The federal government does not approve money for the plan; it only cost-shares the plan at the end of the year.
Mr. Devlin: I will not comment on the rates between federal and provincial legal aid.
We do not go as far as to encourage a standalone legal aid process. Prior to that recommendation on page 10, we talk about a greater financial commitment from the federal government to provincial and territorial legal aid systems. There is a financial contribution by the federal government to the provincial system. That is a good start. Whether the federal government chooses to have its own legal aid system is a different matter for a different day.
The Chair: Honourable senators, that concludes this panel. We will continue our next panel with Minister Strahl. I thank our witnesses for appearing.
For the final leg of our hearing, we have the pleasure of having Minister Strahl this afternoon, together with his officials. The minister will make an address to us before there are questions.
Hon. Chuck Strahl, P.C., M.P., Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians and Minister of the Canadian Northern Economic Development Agency: Thank you, chair, for the opportunity to address the committee as you conclude your full day of hearings on Bill S-4, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves.
[Translation]
I appreciate the committee's longstanding attention to this issue and your concern about the impacts, particularly for Aboriginal women and children, arising from the lack of legislation in this area.
[English]
This committee is well versed in the complexities of on-reserve matrimonial interests and property rights. The review of Bill S-4 has enabled committee members to sharpen further this knowledge by hearing from a number of witnesses today, and the parliamentary secretary and officials from the departments of Justice Canada and Indian and Northern Affairs Canada earlier this month. The parliamentary secretary outlined the process that led to the development of the bill, including the consultations that informed the bill itself and how it was crafted to respond to the input we received.
Furthermore, the solution put forward in Bill S-4 is informed by several authoritative reports and studies, and more than 100 consultation and engagement sessions. Standing committees, both here and in the other place, have called for immediate action. Other domestic and international bodies have studied the issue and consistently recommended legislative action.
Today, I want to focus on the strength of Bill S-4, which I think is the concept of balance. In my view, the key strength of Bill S-4 is the balance it strikes on two key points. First, Bill S-4 balances the collective rights of First Nations with adequate legal protection for individuals; and second, Bill S-4 provides an immediate solution, while establishing a mechanism that enables First Nations to design and implement solutions that meet their particular circumstances and traditions.
[Translation]
Today, I will discuss each of these points and then answer any questions that committee members may have.
[English]
The collective interest is fundamental to the identity of many First Nations. This interest is particularly true when it comes to reserve lands. Few Canadians fully appreciate the importance First Nations place on collective property interests because our laws tend to focus on individual rights.
The Indian Act and many other laws, however, are designed to recognize, accommodate and protect collective interests. Private ownership of most First Nations lands, for instance, is expressly prohibited. Most reserve lands are communally owned and managed in trust.
Individual rights, of course, are also important; and Canadian law recognizes and protects the rights of all citizens, regardless of whether they live on or off reserve. When it comes to MRP, however, current laws do not protect the individual rights of spouses and common-law partners who live on reserve. Bill S-4 addresses this problem and ensures equity in protecting MRP rights and interests of all citizens.
Madam Chair, Bill S-4 also strikes a practical balance between individual rights and collective interests. If an individual's MRP rights or interests are denied, Bill S-4 will enable that person to seek recourse in a way that does not harm the collective interests of the First Nation.
The proposed legislation clearly states that it is not intended to affect the title to the lands or to change the status of collective reserve lands. For instance, a non-member cannot use Bill S-4 to acquire ownership of, or title to, reserve lands. In cases that touch on these issues, however, Bill S-4 also includes provisions to ensure that First Nation counsel can make representations to the court about relevant cultural, social and legal matters.
Bill S-4 also balances the need for an immediate solution to the lack of protection with the need to provide First Nations with a legal mechanism to design and implement MRP regimes that meet their particular circumstances. Providing solutions for both these needs is crucial. Aboriginal women and children, in particular, need the immediate protection that the bill can provide. At the same time, the bill recognizes that First Nations may want to develop their own laws in this area — many of them already are well on the way to doing that — ones that reflect their cultures and traditions.
Bill S-4 also offers a focused solution that complements the Government of Canada's larger strategy on issues that affect First Nations. I encourage members of this committee to consider Bill S-4 in the context of initiatives that protect individual rights on reserve, provide gender equality and combat family violence.
For example, I have had the pleasure to introduce a number of bills in recent months, and Bill C-3, the gender equity in Indian registration act, is one of them. It is another example where we address a key issue of gender inequity and try to avoid a legislative vacuum in British Columbia particularly.
Without this important legislation, a key section of the Indian Act dealing with entitlement to registration will cease to have legal effect in British Columbia and it will have serious consequences. Without legislation in place, approximately 3,000 people per year will be denied the right to register for Indian status and to access the associated benefits.
As the committee knows, residents of all First Nations communities will soon enjoy the same protections afforded other citizens under the Canadian Human Rights Act. Two years ago, this committee reviewed and endorsed Bill C-21, which eliminated the exemption shielding First Nations from the full effect of the act.
[Translation]
Bill S-4 would inspire further progress on rights protection for residents of First Nation communities.
[English]
This government continues to address other issues affecting Aboriginal people finding themselves in vulnerable circumstances. For example, to help First Nation families in crisis, Indian and Northern Affairs Canada provides more than $11 million each year to a network of some 41 shelters across the country. Each year, approximately 1,900 women and 2,300 children avail themselves of those services under the department's Family Violence Prevention Program.
I was also pleased to see Bill S-11, the safe drinking water for First Nations act, introduced last week in the Senate. This bill is another example of how we continue to work with First Nations, Aboriginal organizations, the provinces and territories to make progress on a wide range of issues, from on-reserve child and family services, education, drinking water and economic development to human rights issues.
Bill S-4 must be seen for what it is. It is an important component of a multi-faceted strategy to remove the obstacles that prevent Aboriginal people from participating fully in Canada's prosperity.
Members of this committee recognize that the MRP legislative gap has persisted for far too long. As parliamentarians, we all have an obligation, I believe, to move forward with an effective solution. I am pleased to see that a growing number of Canadians, including parliamentarians, support Bill S-4. I believe the reason for this support is simple: Bill S-4 offers a comprehensive and carefully balanced solution to the issue that has been raised.
I thank you, chair and members of this committee, who, over the years, have been strong supporters of the need for a legislative solution to the issue of matrimonial real property on reserves. As you heard earlier today from National Chief Betty Ann Lavallée, Bill S-4 is a positive step in recognizing the dignity of the person, which is sometimes lost in debate. We should not lose that dignity because for a number of years, it has been one of the key thoughts behind the interest of this committee in seeing this bill pushed to conclusion. It has been part of the consultation process that we have had to date.
[Translation]
I hope that members of the committee will endorse Bill S-4 wholeheartedly so that we can see this legislative solution implemented across the country.
[English]
The Chair: Thank you, Mr. Minister. We will go to questions.
Are you satisfied with the consultative process and how it went in preparation of this bill? Do you think that it was full on and that people were satisfied? Many witnesses today talked about that process and about the various community dispute resolution mechanisms.
I asked another witness about that who said that it would be difficult under this bill. I am sure there was consultation. Could you enlighten us?
Mr. Strahl: Certainly; I might ask officials to expand on this area as well.
There was an extensive process of consulting on this bill. I mentioned that more than 100 meetings were held across the country. We welcomed input both at these meetings held in every corner of the country and on a website. That website allowed people to give input from wherever they were located.
We also engaged a special representative to travel the country and make recommendations. I believe that 30 of her 33 recommendations were incorporated into the bill to reflect the consultations. It was an honest effort to listen to those concerns and to address them in the bill.
In the end, we legislators are compelled to react to this obvious gap in the legislation. It is a little bit like Bill C-21. I heard some of the same arguments. Is the consultation enough? One can always argue that we could have more consultation. We can always do more but after a number of years, we have to act. In this case, we have to act, and we have more responsibility to act. During Bill C-21, we said that everyone in the country is covered under the Canadian Human Rights Act except for First Nations living on reserves. After 20 years or so, the question is: How long does this exemption last? We addressed that issue and this committee addressed it. We likely heard some of the same concerns, such as whether there was enough consultation. We did not go to every reserve because there are 600 or so across Canada, but we held many meetings.
We received recommendations that helped to improve the bill, I believe. More importantly, we ended up with a bill that, as I said at the start, balances both the individual rights and the collective rights, which is important and recognized. We need to ensure the sanctity of reserve land and that it is held communally in trust for future generations. We need to ensure that First Nations have the opportunity to draft, craft and develop their laws based on their culture and traditions, and that we are respectful of that. First Nations will be able to bring that into the legislative package. Currently, without this bill, we would be left with a strange position. A First Nation can develop its own code, and that is wonderful, but I cannot recognize it, the courts cannot recognize it and no one can recognize it. This bill will allow us to move ahead with what I think is a perfect resolution. First Nations have developed a matrimonial property rights regime that will work for them and their people, and I want to be able to recognize it.
Right now, I do not have the legal authority to recognize even that it exists, which is a shame. I would love to be able to say to those who have gone through a process and had it ratified that I am with them all the way. However, I have no authority under this bill to amend it, to change it or to put my stamp on it. It will be 100-per-cent Aboriginal, and I will be able to salute them for their good work. We will be able to recognize that work when this proposed legislation is in place.
The Chair: Before I turn it over to my deputy chair, I bring to your attention a recommendation from the Canadian Bar Association today, "that the federal government provide adequate funding and other supports to First Nations to allow them to create and implement their own MRP legislation under Bill S-4."
Do you have a comment, sir?
Mr. Strahl: We think there will be an advantage in having a centre of excellence of some sort to take advantage of some of the work that has been done and will be done after this bill becomes law. There will be common themes and individual and culturally sensitive approaches to the issue. Many issues that need to be dealt with can take advantage of this work rather than reinvent the wheel every time. Dealing through a centre of excellence, which we intend to fund, will help to determine best practices and how we can make this bill work. It will help First Nations to walk through the process. The centre will be a great resource for them.
I do not think the resource issue is the crux of the issue. The Canadian Bar Association will say frequently that we can always throw more resources at the issue, but it is not clear to us or to me that it should be in this bill. Some portions can be addressed at the legislative stage and other parts will have to be addressed as we go through the ratification process. I do not think it is an issue in developing the legislative option.
The Chair: Thank you for the clarification.
Senator Jaffer: Minister Strahl, I sat on this committee when we prepared the report. Obviously, my bias is to have something in place for Aboriginal women. I commend you for a start but the challenges that we have heard and read about raise many questions. This bill is such an important piece of legislation. I feel that before it even passes through Parliament, the women will not have a chance to have this legislation implemented. I see this bill raising the expectations of many Aboriginals while they still have the sense of being let down.
I will take my province, B.C., as an example. Why do the reserves not use provincial law? My real angst about this bill, Minister Strahl, is that it creates two different types of rights — rights for Aboriginal women, which I believe are much inferior, and rights for me. Under rights of occupancy, they have 90 days under this bill and then they have to go back to the court. That does not exist for other women in B.C. Lawyers will have to learn a new set of laws that will be applied differently across the country.
Mr. Strahl: The excellent question goes back to one of the initial principles of the 90-day clause that you mentioned in an attempt to balance the need for immediate protection for Aboriginal women. No one wants to be thrown out in the street in the middle of the night but, under the existing law, that can happen. However, the First Nation has collective rights under the Constitution that we want to be respectful of. There might be a period of time in the aftermath of a separation when immediate protection might be required for women in the short term. We must also recognize that we have to move, in the longer term, to balance those rights against the collective rights that exist for First Nations under the Constitution.
We also looked at incorporating provincial law. That option was looked at, but there was no support for it in the country. First Nations were keen to say that if we incorporate provincial law, they will never agree to that.
We came up with this provision that said we want to be respectful, and we have heard this loud and clear, so we will be respectful. We want to be respectful. Many First Nations say they already have a system in place that will work, and that is proven to work. I would love to recognize that system, but I have no authority under the Indian Act to recognize their good work. This bill allows us to recognize those laws that have been developed or will be developed in First Nation country. For those who do not want to provide, or say it is not their priority to provide, the immediate protection that Aboriginal women deserve, it is a balance. We need to move because some First Nations do not have a law waiting in the wings ready to be incorporated under this system. For those that do, we can work with them quickly to give those provisions full force and effect. However, as soon as we say, let us incorporate provincial laws, they say: Hold it; we are not ruled by provincial laws; we have our own system.
It is true that there is a different constitutional arrangement that we have to be respectful of. We have tried to balance it by, first, giving immediate protection for women and children so that they do not find themselves out on the street; second, by recognizing there are collective rights that we also need to recognize; and, third, by quickly coming to the conclusion that incorporation of provincial standards, because of the different constitutional relationship, will not work. We want to be respectful of that relationship.
Senator Jaffer: Mr. Minister, the challenge is that for child support and child custody, jurisdiction is provincial. Now we are creating another set of rules, but I do not have the time to canvass that issue further.
Many reserves are in remote areas. A woman needs the order. Where does she go? Set up the process for me. She has no legal aid; she has no access to courts. How does she access these rights?
Mr. Strahl: I cannot presuppose what the law might look like on that particular reserve because we are talking about a theoretical situation.
Senator Jaffer: It is in a remote area.
Mr. Strahl: I realize that, but, again, the law allows for the development of matrimonial property laws for each separate community. There is flexibility in, so how the bill will manifest itself may be somewhat different, even in a remote community.
The bill allows for the enforcement of whatever rules are there. For one thing, except for goodwill, there is no way to enforce it as there is no bottom line.
Unless everyone is good natured, the divorce is amicable, everyone is happy — I will take the car, you take the couch — and everybody smiles at the end of it, it is difficult to deal with.
On the particulars of how it will roll out, maybe I will ask Mr. Jacques to speak to that question.
The Chair: The bells in the house are ringing. You have to leave in 10 minutes. If we can continue on that basis, we have two more questioners, if possible.
Senator Jaffer: Mr. Jacques can answer that question after the minister leaves.
The Chair: That is a good idea.
[Translation]
Senator Brazeau: First of all, Mr. Minister, let me congratulate you for the quality of your French.
[English]
I have a question for you, Mr. Minister, and then for Ms. Paré after.
This morning we heard from Aboriginal leaders, a handful or two, who obviously represent political organizations. The majority that appeared before the committee reject this piece of legislation for reasons of lack of consultation, this being an imposed federal piece of legislation.
One problem, from my own perception, observation and experience, is that, similar to Bill C-21, it is difficult for individuals and, in particular, Aboriginal women who are affected by the lack of matrimonial real property legislation, to come forward for fear of retribution. I will not ask you to comment, but that is from my own experience.
If there is so much resistance to this piece of legislation, in your opinion, why move forward?
Mr. Strahl: That is a good question. We could always say: That's life, and Aboriginal women have had to deal with this for a long time, so they should suck it up and deal with it some more.
Let us be serious. We would never allow this legislative gap to occur for any other group of people. Often, we think about developing legislation. If any one thing should guide us — amongst all the other things that we have to do, we feel we have to do and we are compelled to do — it is to look after the rights of the most vulnerable in society, first and foremost. There is not a more vulnerable group, arguably, than Aboriginal women in this country. It is changing. They are becoming more educated, they are more willing to stand up for their rights, and a bunch of good things are happening. For example, there is economic development and many women are involved in businesses. A bunch of good things are happening, but we would never leave this legislative gap for anyone else. No one would say: This is difficult, so we better leave it.
For decades, people, and, embarrassingly, people from outside the country also have been asking how we can let this gap continue. There is no protection. We are talking about matrimonial property rights, so it is for both men and women, but let us be serious again; it is about women, by and large. It is a group of people that often — it is a family- oriented society, but, as in society generally — end up with the kids. It is about women, often with children, often with no other recourse.
Again, if everything goes well and the issue is only that the relationship has broken down, they have decided to split up and everything is fine — that happens on occasion — that is, obviously, preferable for both the children and the family.
However, when it does not happen that way, what do we do? We could say: Let us do it another day; let us put it off. However, every day we put it off, there is a case out there that we are not hearing about because it is not headline news, but there is someone out there, often an Aboriginal woman, who says: I went home, the door was locked and I am out on the street with nothing; I need help; where do I turn?
Right now we say: I do not know what to tell you — I have to write letters to these women — I do not know what to say to you. I guess you appeal to your chief and council and you hope, on their good graces, that something might happen. That is what they are reduced to.
It is not for us as legislators to say wait for perfection. I tell people perfection is the enemy of the good. The bill is not perfect, but it allows us many solutions that can be developed in the field and many alternatives that can be developed with First Nations.
However, having no alternative is not an answer. We cannot say that the issue is tough, so we will not wrestle it to the ground. We need to wrestle it to the ground. First Nations need to wrestle it to the ground at an individual level, and many of them have. This bill allows us, for the first time, to say that I can finally recognize what we all know needs to happen, which is that matrimonial real property rights need to be recognized. We need a way to sanction matrimonial property rights. This bill will not allow me to interfere with First Nations legislation; it will not allow me to trump the legislation; I will not be able to amend or cancel that legislation.
I will only be able to say: Well done, good work. I am happy for you. I now have the authority to recognize it.
I currently do not have that authority. The sooner we act, the fewer of those stories we will hear and the fewer of those sad letters I have to write to people to say: I do not want what to say to you because you have no rights.
Senator Mitchell: Minister, I am interested in your answer on the question of resources for the centres of excellence. Resources are critical if there is to be any hope for many First Nations organizations to implement their own legislation.
Have you an estimate of the budget for the centre of excellence? Have you an assessment of First Nations organizations that simply do not have the resources to hire lawyers and who would develop an MRP for their particular case?
Mr. Strahl: I will answer your second question first. I do not have the numbers. Self-governing First Nations under the First Nations Land Management Act have a system in place to cover them. The Union of Ontario Indians provided a wonderful presentation of how they handle the issue. However, I cannot recognize it because there is no authority. I simply have to tell them it is great work that I cannot recognize.
For example, there are probably 17 or 18 First Nations in my hometown in Chilliwack. They are also part of the greater Stó:lo First Nation. They may come up with one set of proposals on how the Stó:lo Nation might address the issue. All First Nations in the greater First Nation can be incorporated into one application.
I will ask Ms. Paré to address resources regarding the centre of excellence.
Line Paré, Director General, External Relations and Gender Issues Branch, Indian and Northern Affairs Canada: We must develop the implementation plan, which has three components. First, the centre of excellence will be a national organization, as Minister Strahl mentioned, to support communities, provide information and tools, et cetera. Second is training for police officers and judges to become familiar with the legislation and its implementation. Third will be a public campaign to create awareness of the legislation among community members.
The allocation of funding to the specific centre of excellence has not yet been decided. A legislative solution for matrimonial property was mentioned in Budget 2006, but no specific amount of money has been decided upon.
The implementation plan must be approved by Treasury Board. Minister Strahl will prepare the plan at the appropriate time for Treasury Board submission.
The Chair: With all due respect, senator, may we continue this line of questioning after the minister leaves?
We have time for one more question for the minister.
Senator Dyck: It was clear from this morning's testimony that major Aboriginal organizations are opposed to this bill. They see it as an infringement upon inherent rights to self-government. They do not believe the duty to consult and accommodate was properly undertaken in the consultations.
With the Specific Claims Tribunal Act, the bill was developed jointly with the Assembly of First Nations. Why was there not a joint process initiated with Bill S-4?
Mr. Strahl: As I mentioned earlier, a lot of consultation and effort was undertaken. Bill S-4 is a different type of bill than the specific claims bill. The Specific Claims Tribunal Act deals with Aboriginal governments that may have a specific claim on something for some reason. The approach is government to government on that outstanding specific claim.
Bill S-4 has issues of great concern to Aboriginal governments. However, it also deals with individual rights not necessarily represented by governments of any kind. For example, Senator Brazeau mentioned that someone might say: I have an individual concern and no one is listening to me, not even my chief, the councillor or my First Nation government.
The development of the bill has to work in balance. We made a serious and sincere effort to listen to the group rights issue that the Assembly of First Nations and others raised wherein they think the federal government should not mess with group rights. We try to recognize that concern in the legislation.
However, on the other hand, individual rights are involved in Bill S-4 that are not necessarily represented by a government. Specific claims are only a government-to-government relationship of one government working with a First Nation government on a First Nation right. In the case of Bill S-4, we are dealing with an individual's right balanced against the government's right. We cannot develop the bill to satisfy only the chief and council. We must make the effort to make the chief and council happy along with the Aboriginal woman. That is the balance we try to develop. It is a different effort than when it is only a government- to-government issue.
The Chair: Thank you, minister. I know you must leave. Thank you for appearing. We greatly appreciate it.
Mr. Strahl: I thank the committee for its work on this issue. You have been steadfast in finding a solution.
The Chair: We will continue now with Senator Brazeau who had a follow-up question with Ms. Paré.
[Translation]
Senator Brazeau: Thank you for being here, Ms. Paré, and for all the work that you have been doing over many years in this file.
The minister mentioned earlier the fact that he receives letters from some members of the community, particularly native women who are impacted by the fact that they do not benefit from a matrimonial real property rights regime to protect them in case of separation. However, we have also heard this morning some witnesses who said that there were no evidence showing that many native women are affected by this situation. So I would like to know whether the department receives complaints from native women in this regard?
Ms. Paré: In order to help making the people aware of the facts in this regard as well as the bill, the department has an electronic site giving the people the opportunity to write to us. We do receive e-mails from people who are going through a difficult situation and who are asking us what are their rights and what actions they could undertake. But we cannot meet their request.
As the minister has said, he also receives letters from women who are finding themselves in such a situation, for example, without revealing any personal names, a woman whose husband died and who, the day after the burial, was thrown out of her house. Because of a legal gap, she could not have any legal protection; there is no such thing presently.
These are situations that we are aware of, but we do not have any statistics. We often talk about annotated evidence, that is we hear about it, we talk with people in the communities who tell us in confidence: I know such a person, my sister, my sister-in-law who has been in such a situation.
Senator Brazeau: I appreciate your answer. I once have been chief of an aboriginal national organization and I have seen and heard many examples of aboriginal women who were affected, unfortunately. Even today, when I speak with some of my constituents, it is still the same issue that is a common place. At least they now have some hope that steps will be taken to protect their interests.
That being said, I think that I have had my answer in terms of the difficulties to obtain these statistics that would prove that even if only one woman has no such protection, that would still be one too many.
[English]
Senator Mitchell: I was told this morning by one of the presenters that the hearings undertaken by the government were all in urban areas. Is that possible?
Ms. Paré: Are you talking about the consultation process?
Senator Mitchell: Yes; not hearings, but consultation.
Ms. Paré: The Assembly of First Nations received specific funding. They organized regional sessions to consult their leadership with respect to a possible solution to this issue. There was also funding to the Native Women's Association of Canada, who conducted consultation. The association consulted with their women's group, bringing in women from the communities as well as from outside of the communities. Funding was also provided to other organizations.
I would say that people from the communities were consulted, as well as people who were probably living out of the community at the time. Yes, people from communities were consulted.
Senator Mitchell: We received an excellent brief from the Canadian Bar Association on Bill S-4. I do not think you have received it yet, but we received it this afternoon, moments before you appeared. It is well argued. They said they will submit the brief to you and I think you will find it interesting, if you have not already received it.
In it, there are what appear to be reasonable suggestions for amendments to the bill. Are you aware whether the government is amenable to amendments? Do you have a policy on amendment? It would be a first, but I am always hopeful that you will realize you did not get it right the first time.
Ms. Paré: Minister Strahl would have been in a better position than us, as officials, to respond to your question.
Senator Mitchell: He has not stated a policy in that regard?
Ms. Paré: No.
Senator Mitchell: I did not receive a complete answer to my question about which communities have the resources to hire the people to implement MRP regimes. Was any assessment done of that issue? Clearly, this bill is almost meaningless if Aboriginal communities, or the bulk of them, do not have the resources to develop their own MRP.
Ms. Paré: This is why, in the implementation plan, one of the components is a centre of excellence so that there will be a national organization that can support the communities in the development of their First Nations law.
As Minister Strahl mentioned, there will be some specificity because of First Nations culture and tradition. However, there will be common themes, as we can see from the communities that have, under the First Nations Land Management Act, developed their matrimonial real property regime or codes. You can see common themes and components.
Have we done a specific assessment? No, but the centre of excellence is —
Senator Mitchell: I do not think the centre of excellence will be anywhere near enough to implement a regime. Someone in these communities will have to work with these centres of excellence to do what they need to do. I am sure the work is complicated and probably relatively expensive. They simply will not have the resources to do it.
You can say you have a centre of excellence but you have not even budgeted for it. The minister did not even know what it was to do. He is vaguely thinking about it. That is good unless you are an Aboriginal person in an Aboriginal community who has no resources whatsoever to develop an MRP. It will be the issue.
The Chair: If there is anything further you can add on these centres of excellence, please send it in to us.
Ms. Paré: Yes, with respect to the centres of excellence.
Senator Brazeau: Before the notion came out in 2005 that the government was moving forward on this issue, do you have an indication of how many bands were lining up to develop their own MRP, and requested funding from the department to do so?
Ms. Paré: I was not in the position in 2005, but —
Senator Brazeau: The reason I ask is that even if this piece of legislation moves forward and is enacted, I suggest that not everyone will line up to enact their own regime.
Ms. Paré: Yes; you heard this morning that some First Nations have gone through their process and have developed their draft matrimonial real property regime right now, as we speak.
The Chair: Is it 15 First Nations that have lined up?
Ms. Paré: With respect to the First Nations Land Management Act, but my understanding was that your question was broader, Senator Brazeau — since 2005, how many First Nations across Canada have come knocking on the door at the Department of Indian and Northern Affairs asking for funding because they want to develop their own matrimonial property regime?
Senator Brazeau: The question was pre-2005.
Senator Dyck: Some First Nations told us that the primary issue is housing — that if there is sufficient housing, this will immediately solve the problem. How many First Nations are lining up for more funds for housing? There are probably many more than those trying to design their own MRP.
The Chair: Is it perhaps because they cannot do it under the Indian Act; therefore, they have no legal authority to approach you?
Ms. Paré: They have no legal authority to ask the Department of Indian and Northern Affairs for funding. We do not have a funding program to support First Nations in lawmaking with respect to matrimonial property.
With respect to the issue of housing, matrimonial property and this piece of legislation is to close a legal gap. I am living off reserve, so I am protected right now; I move on reserve and I lose this protection. That is the purpose of this legislation; to close a legal gap.
Senator Dyck: How many First Nations homes across Canada are owned by an individual? In some cases, the home is not owned by the person; it is owned by the band council.
Ms. Paré: I will be pleased to follow up with my colleagues who are responsible for the area of housing to see if there are specific statistics with respect to homeownership versus social housing.
Senator Dyck: I am under the impression — and I do not have any data, I was trying to find it — that many homes, and it probably varies with the region, are not owned by the individual; they are social housing.
Senator Nancy Ruth: That is, until this government recently agreed to guarantee the mortgages so banks would lend; otherwise, banks were not prepared to lend. Still, few own their homes; you are right.
My question is on verification. There was a lot of discussion this morning around the verification powers, and objection to them. Can you tell us a bit about verification? In particular, how are the verification officers chosen or trained? How will all that happen?
Ms. Paré: I will try to explain the verification officer. In Bill S-4, with respect to First Nations law, they will have to ratify their First Nations matrimonial property regime. A verification officer will be appointed jointly by a national organization nominated by the minister and the First Nations. The First Nations jointly appoint with the national organization a verification officer; someone who is neutral and who knows the content and the articles in the legislation. The verification officer will ensure that the process the First Nations community has used to develop their laws, consult, inform their members and receive their approval for their First Nations matrimonial property regime following what is mentioned in Bill S-4. That is the role of the verification office. Then the verification officer will look at the regime and determine whether it is in line with what is mentioned in Bill S-4. That is it. That is all.
The verification officer does not review the content of the First Nations law. The review is only on how the First Nation went about engaging its members. Did the First Nation make efforts to reach out to members both on and off reserve to inform them about the proposed regime, and how was the voting? Did 50 per cent plus one of the eligible voters go to vote? Did 50 per cent plus one of the people who voted approve their code? That is it.
Senator Nancy Ruth: One reason the verification officer was put in was because Aboriginal women requested some kind of guarantee that they would not be left out of the process, and the verification officer was seen as a way to ensure that Aboriginal women would have a say and a vote on whatever regime the band came up with. Is that correct?
Ms. Paré: Yes, that is correct. During the consultation, women, especially, raised concern with respect to the First Nations law-making authority. The women said that the First Nation needed to have a process to ensure that the members know about this regime and they have an opportunity to voice their support or their disagreement with the proposed matrimonial real property regime of the First Nation.
Senator Nancy Ruth: There was a view this morning that they do not want to vote; this is not their cultural tradition, and they want to do it by consensus. Was there some request by Aboriginal women to use a voting procedure as opposed to a consensus procedure? How did it come to be a vote?
Ms. Paré: That is an interesting question. I can look into what came out of the consultation — if there were First Nations or women who said they do not want to vote, and that they work by consensus.
The Chair: Thank you. You can provide that information to us.
Senator Jaffer: I am confused about the centre of excellence. I know a little about centres of excellence. You may not have an answer for me today. That is fine; you can send it to us.
These are my questions: Where will the centre of excellence be located? Is it only one centre? What is its mandate? How proactive will it be? How much money has been set aside to resource this centre of excellence — or two, I do not know how many there are? Exactly what process will it follow? For example, if the Haida have done an excellent job in helping women access justice, will the centre adopt that process, or will the centre be proactive and draft documents or processes? If you can provide that information, I think that information will clarify issues for us.
I asked the minister, when a woman is homeless — we will not go into the circumstances — what does she do with regard to housing, travelling to a superior court that is 600 miles away and access legal aid?
Karl Jacques, Senior Counsel, Department of Justice Canada: In the case of emergency protection orders, the application can be made by another person than the victim, for instance. The act provides that regulations can be made, and regulations will address how applications can be made.
Senator Jaffer: An affidavit is an affidavit. They cannot just make an application.
Mr. Jacques: They can make an application. In some instances in different provinces, applications can be made over the phone or fax to justices of the peace. The rules will set out what kind of information will be required by the justice to decide on the application.
Senator Jaffer: We were told this morning — and I do not know any better so I am asking — that they cannot make an application by — whatever, I forget, so I do not want to misquote someone; we were told by email or something.
Mr. Jacques: We are talking here about the applications for emergency orders. The rules can be made under this act to provide for that situation.
Senator Jaffer: Can you provide us with those rules?
Mr. Jacques: We can provide the draft. They are still in draft form. We can provide that draft.
Senator Jaffer: What is the next step? The woman has had the 90 days to stay in the house. Then what does she do?
Mr. Jacques: The order will have to be executed then.
Senator Jaffer: How many times can she go back?
Mr. Jacques: Once under the same circumstances.
Senator Jaffer: Then what?
Mr. Jacques: If there is a marriage breakdown, they could apply then for an exclusive occupation order.
Senator Stratton: I will be brief, following up on Senator Jaffer's questioning. It bothers me, and I think the best way to handle this issue may be if you give a couple of case studies. If you take an individual, a woman, who comes home one night and she has been locked out, what does she do? She has three kids and, depending on their ages, but say they are 3, 5 and 7, she has the right to occupy for 90 days. That period is then extended once, as you said. Then what happens? After the separation is reached, the divorce is achieved, then what happens? Does she have the right for herself and those kids to stay in that house until the kids are 21 or 18? There must be examples you can provide to clarify this situation.
Mr. Jacques: In that circumstance, a person can apply for occupation of the house. For instance, one condition can be that they ask the court to stay in the house until the children have attained the age of 18, for example. The judge will take into account several circumstances to determine how long that period can be. One of those circumstances is whether a person has been on the reserve for a long time. There are different circumstances. The First Nation will also make representations to that effect.
Senator Stratton: If someone off reserve moves onto the reserve, is married, has three kids, and she is there five years, which is not long, she could go. Who decides that?
Mr. Jacques: The judge decides, depending on the circumstance, like any other cases where courts have to decide —
The Chair: We would have to know whether she is married, common law or whatever.
I have one more follow-up question. Who enforces the court orders on reserve, both in terms of an emergency, say, or compensation?
Mr. Jacques: The bill provides that the emergency protection will be enforced by a peace officer.
The Chair: What is the compensation?
Mr. Jacques: That is civil remedy, so that will be by civil recourse then.
Senator Jaffer: Chair, may we take on Senator Stratton's good suggestion and have case studies so we can visualize how this legislation will work, please?
The Chair: Ms. Paré, do you have something to say about that?
Senator Stratton: We are looking for examples that you have had to think about.
Mr. Jacques: We can provide that information.
The Chair: We live with case studies every day in our province.
Ms. Paré: We will be pleased to provide a couple of case studies that are hypothetical: what happens; the ages of the children and the criteria taken into consideration. The First Nations will be able to make representation to the judge to talk about the situation of the communities, the tradition, the culture, so it is difficult to show what happens directly.
Senator Stratton: We appreciate all of that, but it will give us a better perspective. If you can give us three cases, I think it will help immensely.
Ms. Paré: Yes; with respect to the centre of excellence, do you want our response in writing?
The Chair: We want it in writing for the committee.
Ms. Paré: Right now, we need to look into the implementation plan, but one thing that I wanted to offer is that if we look at the support for the First Nations who are under the First Nations Land Management Act, a national organization supports them in helping to design their land codes and, after that, their matrimonial property regime. The organization exists. We have an example of something.
Senator Jaffer: Most important for me is what money you are putting into this support.
Ms. Paré: Okay.
The Chair: Senators, if there are no more questions, that concludes our discussions and the sessions for today.
Thank you very much, Mr. Jacques and Ms. Paré for coming, and thank you, honourable senators, for being so patient. We have met now for, what, seven hours and I think we have accomplished a lot.
We meet again Monday at 4 p.m., where we will continue with witnesses on Bill S-4 before going to clause-by-clause consideration.
(The committee adjourned.)