Proceedings of the Standing Senate Committee on
Human Rights
Issue 4 - Evidence - June 7, 2010
OTTAWA, Monday, June 7, 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 4:02 p.m. to give consideration to the bill.
Senator Janis G. Johnson (Chair) in the chair.
[English]
The Chair: Ladies and gentlemen, we have a number of witnesses appearing today. Welcome everyone. We are glad you could be with us. We will start with the Federation of Saskatchewan Indian Nations, Chief Marie-Anne Day Walker-Pelletier.
Chief Marie-Anne Day Walker-Pelletier, Chief, Chair, Saskatchewan First Nations Women's Commission, Federation of Saskatchewan Indian Nations: Good afternoon. I want to thank the committee for providing me with the opportunity to contribute to this standing committee. It is important to continue deliberations on Bill S-4. I also thank Senator Lillian Dyck for her efforts to ensure that my voice is heard here today.
I am Chief Marie-Anne Day Walker-Pelletier of the Okanese First Nation from the Treaty 4 territory in Saskatchewan. I have been chief of my first nation for 29 consecutive years. I have witnessed and been through much in terms of government policy, legislation and community involvement. I am also Chair of the Saskatchewan First Nations Women's Commission within the Federation of Saskatchewan Indian Nations, FSIN. It gives me great pride to be able to assist in successes of my community and to champion causes and rights of First Nations women and children.
Saskatchewan has 11 First Nation female chiefs and over 125 other women in leadership capacities throughout our 74 First Nations. Saskatchewan First Nations are treaty people. We span six treaty areas — Treaty 2, Treaty 4, Treaty 5, Treaty 6, Treaty 8 and Treaty 10. Everything we do or say comes from a treaty perspective and encompasses our collective and traditional rights. We all work hard to ensure that our voice represents our communities and First Nation women in Saskatchewan. Today, my voice will demand greater action on this issue on behalf of my fellow leaders and our membership.
The work and research surrounding matrimonial real property is a natural fit for the Saskatchewan First Nations Women's Commission because it will help to protect the lives of First Nation women and children on reserve. If a woman's relationship breaks down, or in the event of the death of her partner, whether in marriage or common law, laws should be in place to ensure her rights are met regarding matrimonial real property. To take the question a step further, if a First Nation woman is in a volatile relationship and is living in on-reserve housing, laws may not keep her or her family safe. Policy should be put in place to ensure that she is not forced to stay in a situation that can lead to more violence or even death.
There is much work that the Saskatchewan First Nations Women's Commission needs to do on this file. We are encouraged that the federal government has taken steps to assist us in our efforts.
We have a number of areas of concern in the proposed Bill S-4. The bill is encouraging. However, we also have concerns over the effects this legislation may have on existing inherent treaty rights that indigenous people hold in Saskatchewan. Every day that the safety of a family is put in jeopardy because MRP laws are not in place is another mark against the woman's or child's basic human rights.
We must ensure that legislation developed does not take away from the human rights issue and put against the rights of First Nations people. We want to ask: Has this been assessed efficiently? I am here to serve notice that Saskatchewan is treaty-based. Therefore, it is natural that we want to ensure our collective rights are met and respected. Honourable senators know that our collective rights help protect who we are as treaty people and our traditional perspectives on policy development. I ask that we have more time to assess this possible conflict to ensure that our collective rights will be met when MRP legislation is put in place.
It has been over 20 years since the issue of MRP reached the Supreme Court in such cases as Derrickson v. Derrickson and Paul v. Paul. We have all had ample time to consider solutions. For some communities, it has been a long and difficult process to reach the point of forming our own rules. We fear that Bill S-4 will interfere with our vision and the work we have done towards our own solutions.
By passing this legislation, Parliament will create requirements that blanket every First Nation in Canada. The unique realities of many First Nations will not be met in this fashion. For instance, it is not realistic in northern First Nations that a woman who does not have easy access or resources must continuously attend court seeking orders to keep their house, which is, in the end, only a temporary solution under Bill S-4. Legislation must respect the needs of each First Nation. We ask for each community to have the chance to create their own legislation to reflect their needs.
I am concerned about resources at many levels. Following this proposed act will be very costly, not only for individuals who may need to access the regulations set out by Bill S-4, but for communities that will have to implement the act in structuring their own laws, doing community consultations and ensuring all other codes are up to date as they develop their own unique MRP laws.
Where will resources come from? As First Nation leaders, if we promise to do all we can to ensure MRP laws are developed and implemented, do we receive assurance that adequate resources and budgets will be included? We also want to see a cost breakdown to incorporate MRP legislation on each First Nation and where the money will come from within the federal budget.
First Nations people want MRP laws, but we want to be able to create our own laws. In fact, we have been creating these laws for many years. For example, First Nations who have implemented the First Nations Land Management Act, 1999, c. 24 in their reserves are required to have MRP laws in place.
Many First Nations in Saskatchewan are also in the process of bringing forward codes and policies, including membership codes and housing codes that will address the issue of MRP, whether it stems from marriage breakdown or is a result of violence in the home. Therefore, Bill S-4 might force First Nation leaders to implement policies that we may not agree with or that go against the express agenda of particular communities.
I am not saying that we prefer to have women's safety placed in jeopardy or that we are comfortable to continue the way we have. Rather, our current situation is in crisis and action needs to happen, but we prefer to follow our own approach, one that we believe and one that reflects the needs of our community.
Today I ask that we be supported by the federal government to continue on in the capacity that we have been. We understand that the timelines must be short, but we are willing to work as quickly as possible.
I, along with many others, am willing to work together with our communities to ensure that MRP laws are developed and put in place. I am willing to work with First Nations in my region to ensure that the FSIN continues the process to get this work started in all communities, and to ensure the work is continuing if it already has been started.
Of course, time is of the essence when it comes to doing something to fix this crisis in our communities. Most communities are working to ensure that MRP is addressing our laws in our own governance processes, each of which might be very different from the neighbouring reserve, though they still respect the human rights of First Nations women and children.
Since the federal government says that Bill S-4 gives First Nations the right to implement MRP laws as we see fit, why have the bill at all? If it is to define interim legislation to address MRP until such time when First Nations can implement their own laws, that is fine, but let us make those decisions ourselves.
The ministerial representative, Wendy Grant-John, who was appointed by the minister, spent several months talking with First Nations. She even said specifically that unilaterally imposed federal legislation as a solution would not work, yet the bill is just that. That is not what our voice told the ministerial representative. We were not listened to.
Today I ask that the government allow us to continue to carry out the process in our own time without Bill S-4, support us with the necessary resources, as stated at the beginning of the Bill S-4. I quote:
WHEREAS the Government of Canada has recognized the inherent right of self-government as an aboriginal right and is of the view that implementation of that right is best achieved through negotiations;
That being the case, we ask that you negotiate with us and empower us to build legislation from a self-governing perspective as it relates to our treaty position from Saskatchewan.
The Chair: We will now go to Ellen Gabriel, please.
Ellen Gabriel, President, Quebec Native Women: Greetings, chair, and honourable members of the Senate committee. The Quebec Native Women appreciates this opportunity to present our concerns of the federal government's legislative approach that addresses the issue of matrimonial real property interests or rights on reserves.
Throughout the various numbers of changes to the matrimonial real property bill, Quebec Native Women has raised important issues about this legislation and the process which has failed to provide Aboriginal peoples with any effective consultation and meaningful accommodation on this matter.
Unfortunately, like the recommendations of Wendy Grant-John, the federal government's representative, all our recommendations have been ignored with the reintroduction of Bill S-4. Furthermore, the inclusion of Ms. Grant-John's recommendations would have indicated good faith by the Government of Canada in accommodating the concerns of Aboriginal peoples.
I need not remind this standing committee on the goal and paternalistic nature of the Indian Act to undermine and devalue the authority and roles of indigenous women in their nations. Section 6 of the Indian Act defines who is an Indian, and constitutes tutelage over all aspects of community life and individuals' lives from birth to death. This regime of tutelage, which determines Indian status and band membership of individuals, extends to the political and administrative structures on reserves. With this in mind, I will address our concerns with the limitations of Bill S-4.
Bill S-4 does not recognize the inherent right of self-determination — a right protected by section 35 of the Constitution Act of Canada. It disregards the issue of collective rights versus individual rights of Aboriginal peoples, as well as ignoring Aboriginal peoples' customary land use and title.
It disregards the issue of membership codes and status, on-reserve conjugal relationships under the Indian Act. All membership codes do not provide the same rights to residency. Cases in which one of the spouses is not a registered Indian are even more complex. Therefore, the legal status of spouses and the existence or non-existence of a band membership code have a direct influence on this issue. This reality affects the children.
An obvious limitation between Bill S-4 and the realities currently facing Aboriginal communities is that the bill does not address the limited land base and inadequate housing on reserve.
Bill S-4 infringes on Aboriginal peoples' authority and jurisdiction. Currently, under the government's proposed legislation, First Nations laws on MRP would have to be sanctioned by a government-defined process set out in legislation before they can be enacted.
There is no planned transition period or support for First Nations capacity building and development. The federal rules will apply immediately to all First Nations, with limited exemptions. There appears to be no support for First Nations to develop and implement their own laws on MRP to replace federal laws, which means that the federal rules would apply to the majority of First Nations for a significant period of time.
Further policy research must be carried out regarding the situation of Aboriginal communities in Quebec and, in particular, the lack of harmonization with Quebec's civil code.
The government must work in concert with Aboriginal women's groups and their communities to develop a culturally based MRP regime that is fair and equitable. In terms of equitable settlement, the economic realities of Aboriginal women who have taken care of the family, home and children during the couple's partnership are not taken into consideration and will create further economic and legal burdens on women.
For domestic violence, an emergency protection order is necessitated. Provide courts with the power to apply interim federal rules with flexibility to fashion new interim remedies, based on custom, to allow more accessibility in remote communities.
Beyond the debate surrounding the legal issues, there are also the problems of social violence, chronic poverty and the lack of financial resources to access legal action. These limitations and concerns illustrate the need to address the problem of matrimonial property in a holistic perspective. Indeed, according to the consultations carried out by the Native Women's Association of Canada, legislative change is only one of six aspects of solutions put forward by Aboriginal women regarding matrimonial real property.
In order to ensure that Aboriginal peoples, and particularly women, will have equitable rights and benefits regarding matrimonial real property, the federal government must also deal with issues regarding the judicial access and application of this new legislation, as well as socio-economic aspects, such as status or lack thereof, violence, poverty and housing. Thus, parallel to any legislative change, the federal government should develop multi-staged systems of Aboriginal mediation or other appropriate Aboriginal systems and practices for justice and decision making under matrimonial real property.
Finally, the assimilative and oppressive policy system derived from the Indian Act, which exacerbates the vulnerable situation of women facing the breakdown of a relationship, must be revised to provide options for women and their descendants. The federal government must increase its efforts to resolve the issue of funding for housing on reserves and address the issues of poverty, violence, status and membership that are intricately related to MRP rights.
The Government of Canada must accommodate Aboriginal peoples' concerns through our recommendations and amend Bill S-4. It must abide by the rule of law and create further dialogue respecting Aboriginal peoples' inherent right to self-determination. It must take into account the discussions currently under way in Parliament on Bill C-3, the gender equity legislation.
As long as Indian status remains discriminatory against Aboriginal women and their children, sexual discrimination will remain a prevalent issue of discourse regarding amendments to the antiquated Indian Act.
The Aboriginal nations, once independent peoples, or rather, sovereign peoples, with whom the European powers sought alliances during the colonial wars, have been reduced to subjects dependent upon the Crown. This paternalistic relationship, which has damaged Aboriginal nations, must end. It has distorted the Aboriginal peoples' traditional gender relations with regard to land ownership and the relationship to territory well beyond their original shape.
If I may make one more recommendation, it is that the Government of Canada fully endorse the UN Declaration on the Rights of Indigenous Peoples without qualification, in good faith and in the spirit of reconciliation.
Lawrence Paul, Chief, Co-chair, Atlantic Policy Congress of First Nations Chiefs: Honourable senators, I am chief of the Millbrook First Nation in Nova Scotia and co-chair of the Atlantic Policy Congress of First Nations Chiefs. I have had the honour of serving my community for the past 26 years as chief and as the Nova Scotia co-chair of the Atlantic Policy Congress of First Nations Chiefs for the last 18 years.
I have with me today Chief Noah Augustine of the Metepenagiag First Nation, who is our new New Brunswick co-chair and Mr. John G. Paul, our executive director. We are here today to speak on behalf of the Atlantic chiefs with regard to concerns with Bill S-4.
Our member chiefs do not support Bill S-4 as it currently stands. APC chiefs passed a resolution at their last meeting in May expressing their non-support for this bill due to their serious concerns with its potential impacts. APC chiefs passed a previous resolution regarding its predecessor, Bill C-8, for the same reasons.
Our position is not an uncommon one. Most First Nations organizations, including the Assembly of First Nations and the Native Women's Association of Canada, also opposed the bill's predecessor, Bill C-8.
The following is a list of concerns and potential impacts that have been identified regarding Bill S-4, which are the same concerns we raised with Bill C-8.
The first concern is that no consultations have been held with First Nations in Canada on Bill S-4. In 2006-07 the Government of Canada, via ministerial representative Wendy Grant-John, did hold national engagement sessions or discussion forums on the general issue of matrimonial real property on reserve and proposed options for consideration. However, no consultations were held on the proposed legislation itself.
We believe that the Government of Canada has a legal obligation to work closely with First Nations leadership in preparing legislation that so intimately affects life in their communities. There is a previous example whereby the Government of Canada and the AFN worked in partnership to prepare a bill entitled The Specific Claims Tribunal Act, which was eventually passed into law. We see no reason why the Government of Canada could not have taken a more collaborative approach in addressing these issues with First Nations.
Our second concern is that Bill S-4 is unconstitutional, as it is inconsistent with section 91(24) of the Constitution Act, 1982 and will constitute a breach of the Crown's fiduciary duty to protect Indians and lands reserved for Indians.
The British North America Act was entwined in the Canadian Constitution by way of section 35. The fiduciary duty for lands remains in the hands of the federal government, and the only way they can get out of that fiduciary responsibility is by amendment to the Constitution, which they will not get, or by us voluntarily giving it up.
As you are aware, only the federal government has exclusive legislative authority with respect to Indians and lands reserved for Indians. This bill will allow the province, via provincial court judge, to grant property and land rights in relation to reserve lands to non-Indian persons living on reserve. The provinces have no jurisdiction to do so under the Constitution Act and, thus, it would be unconstitutional.
Although the bill states in clause 5 that reserve land title and status are protected, the practical effect of the provisional rules is to grant non-band members, that is, non-Indian persons, interests in lands reserved for Indians. Doing so seriously undermines the title and the status of lands reserved for Indians. This, we believe, is a serious breach of the constitutional and fiduciary duty the Crown owes to First Nations to protect Indians and lands reserved for Indians.
Our third concern is that the bill contravenes the UN Declaration on the Rights of Indigenous Peoples as it will be a significant interference, both governmental and judicial, with First Nation matters and inherent rights to self-government. The provisional rules will cause significant interference, both governmental and judicial, with First Nation affairs and inherent rights to self-government, controlling their own housing stock, administering their housing policy and the use of reserve lands.
While the bill allows for the creation of First Nation laws, the requirements are stringent. The potential drafting, legal and implementation costs are enormous, and the impacts may be limited. There will be new costs assumed by the provinces, and a more vigorous role will be carved out for the provinces and their courts in addressing First Nations matters.
I talked about this issue with the former premier of Nova Scotia, the late Honourable John Savage, and other Conservative and NDP premiers. They said that the only way that they would assume responsibility on any issue concerning native people in the province of Nova Scotia is if the federal government pays the costs. If the federal government does not pay the costs, they will not do it. I cannot blame them as they are currently $56 million in debt.
The bill does not respect the inherent law-making power of First Nations. In our view, it is a step backwards. First Nations already have various housing, land and MRP policies, bylaws or laws in place, and this bill would replace all or most of them. Bill S-4 seriously undermines our inherent right to govern ourselves. For example, it gives provincial court judges full discretion to order band members to vacate homes to a non-native person and then further compensate them for their share of the value of the property.
First Nations policies and laws should be respected. If there are none in place, the federal government should work with the First Nations to assist them in developing the policies or laws they need to have in place. In the Atlantic region, many First Nations, including my own, have policies, written or unwritten, that have been adopted by councils that give exclusive possession of the matrimonial home to the custodial parent of the children in cases of marital breakdown. This bill will directly conflict with existing First Nation policies and laws in this area and will cause great confusion in communities.
The solution to this problem is not to impose provincial court systems and laws on First Nations. Any solution to the MRP issue should respect First Nations' inherent rights, their customs and traditions.
More generally, it is our view that the federal-provincial-territorial rules run contrary to the direction in which many family court systems in Canada are moving today. Many provinces support alternative dispute mechanisms, such as mediation as a first step to resolving any such family matters. Only in situations where ADR does not resolve this issue will couples find themselves in family court before a judge who will decide these matters for them. The Canadian justice system takes an adversarial-based approach to resolving matters, which pits one party against the other. This is a system that we do not wish to replicate or install in our communities. We believe that due to the fact that family law matters are very sensitive and personal in nature, they demand more remedial, restorative-based solutions.
I turn now to concern number 4. This bill tries to replicate off-reserve remedies to MRP issues, but it is not possible because it is simply not the same environment. Title in lands reserved for Indians is vested with the federal Crown. Only First Nations, bands and its members have the use and benefit of reserve lands. Individual Indians or non-Indians cannot own fee simple title to reserve lands. Because of the unique collective nature of the land tenure system on reserve, it is impossible to replicate the same remedies for MRP issues as off reserve. This is what the bill is attempting to accomplish, but it cannot be done. Our research indicates that most housing on reserve in Atlantic Canada is CMHC section 95 social housing in which the First Nation owns the house, pays the mortgage and rents it to the band member, head of the household, who is most often in receipt of social assistance. The rent for the social housing unit comes from DIAND social program funds.
Due to the fact that most housing in the Atlantic region is First Nation band owned social housing and not owned by its individual tenants, it is not possible for a provincial court judge to legally issue a compensation order to a spouse in the event of a marital breakdown, as the matrimonial home is not a marital asset.
I will make a few comments. For years since I have been chief, the federal government has been saying to me and my council: "Make your own laws that best suit your First Nation." We do that in regard to matrimonial property. We do not discriminate against anyone, whether White, Black, Red or Yellow. We do not. When we have a dispute between two couples, the chief and council at the Millbrook First Nation tell them to go to family court. They go to family court. The man may get custody or the woman may get custody of their children. Whoever gets custody of their children has the right to occupy the home. We have no problem following that policy.
When the oldest child reaches 18, which is legal age under the Indian Act, it is up to that child to decide whether he or she wants to live with their mother or their father, and they accept that.
We have other bylaws, for unsightly premises, excessive noise, dog control, zoning, et cetera. The federal government has been saying to make your own rules and policies acceptable to your community. What the Millbrook First Nation and any other band does is acceptable to the community.
If this bill passes, to give you an example, someone put on the First Nation against the wishes of the community will face a living hell, whether it be a man or woman living in that house. The community members will not leave them to rest in peace. They are surrounded by band members, and to have a non-Indian living in the house that is owned by the band is unacceptable.
Because we were quite worried about the suicide rate, we have a policy that anyone who gets caught trafficking in drugs or bootlegging could lose their home. We have eliminated much of the drug abuse on our First Nation because of that policy.
My biggest worry is self-government: The Indian Act was put in place for a specific reason. The Honourable Joseph Howe was a member of the provincial government of Nova Scotia. That is when the Mi'kmaq population was dying from tuberculosis and other illnesses. He said that something had to be done or the Mi'kmaq nations will go the way of other species that are now extinct. The Indian Act came into being through talks with the federal government. Something had to be done at the time because their land base was gone; their way of living was gone; they could not feed themselves any longer.
Currently, some bands are talking about self-government. If you have self-government, you must have the funding to run it. If you do not have the money, you cannot run a government. Even if you did tax the majority of band members, you would not have enough tax dollars to pave one road. It is completely ridiculous to talk about self-government at this point in time. I have often said, when we start out in the field of economic development and enterprise, we must have the support of the federal, provincial and municipal governments to go forward to one day reach the plateau of self-sufficiency. That day is not here yet. I do not know what is in the minds of the advisers to the MPs, the Prime Minister or the Senate here. Why do they think that native people across Canada would let their lands be overtaken by non-Indians? It will not happen. All this bill will do is cause the pot to boil over.
Before this bill passes through the House of Commons, my advice to senators is to consult with First Nations for their input. Work together to come up with a policy that is acceptable to both sides. That is the way to go.
Thank you, and I hope what I have said will have some impact on senators here today. When you talk to your colleagues, perhaps there can be sober second thought and consultation with native people of Canada before pushing legislation through the House of Commons.
The Chair: Chief Paul, those are very wise words.
Noah Augustine, Chief, Co-chair, Atlantic Policy Congress of First Nations Chiefs: I have a few more concerns. I am Chief Noah Augustine, Metepenagiag Mi'qmak nation in New Brunswick, serving as co-chair for the Atlantic Policy Congress. I also serve as President of the Union of New Brunswick Indians. It is a pleasure to be here today.
From the outset, we have all come to realize that this is a very complicated issue. From my review of the literature, the research and the work that has been done to date by this standing Senate committee, I want to note that it is positive in the sense that we are finally addressing this issue of matrimonial real property in the First Nations community. These are big, complicated concerns. We are talking about land codes, band membership codes, self-governance and politics on a reserve, and the fact that Indian Act bands have elections every two years further complicates things.
I have had the opportunity to present before standing Senate committees with respect to the Indian Act elections. I want to express to senators here today that your recommendations carry weight and we appreciate the time and attention given to this matter. With that, I will continue with the remaining concerns from the Atlantic Policy Congress.
Concern number 5 was that First Nations do not have the resources to develop their own MRP laws. We have the ability but we do not have the resources. That has been communicated clearly.
There is a lack of capacity at the First Nation level to develop and enact such MRP laws, and this has not been addressed by the federal government in this bill.
The issue of lack of resources and capacity at the First Nation level has been consistently raised in relation to the various bills that have recently come before parliamentary committees, that is, Bill C-21, Bill C-3 and most recently with Bill S-11. It is our understanding that the lack of resources and capacity building issue has also been raised with regards to the development and enactment of land codes for First Nations that are part of the First Nations Land Management Act. First Nations have stated that there is not enough money to do the work required for them to develop their land codes. This same issue was raised by the Standing Senate Committee on Aboriginal Peoples in the recently released study regarding Indian Act election reform. The Senate committee recommended, amongst other things, that the federal government provide the necessary financial resources and supports to assist First Nations in developing their own election codes.
The only capacity building reference in relation to this bill has been with regard to judges and police. We also believe that, generally, most lawyers also do not understand how First Nation reserve land systems work. Thus, they will need to be included in any capacity building initiatives.
Our sixth concern is that the MRP issue also relates directly to lack of available housing and land on reserve. The issue of MRP on reserve is further challenged by the chronic housing and land shortages on reserve. If there were sufficient housing and land to build homes, we strongly believe that the problem would not be as significant as it is today.
The seventh concern is that the bill appears to be retroactive in nature. It will apply in certain circumstances, not merely in respect of current spouses or common law partners but former spouses and common law partners as well.
On the eighth concern, the bill aims to remove section 89(1), the Indian Act protection for status Indians, in matrimonial property situations.
Regarding concern nine, for the first time, non-Indian occupation of reserve land, absent a permit, lease or land surrender, will be sanctioned by the federal legislation via the provisional federal rules. This appears to contradict statements set out in the Indian Act which state that the purpose of non-alienability of reserve land is to ensure reserve lands remain for the use and benefit of Indians and the band generally and which prevents individual Indians from alienating their interests to non-Indians.
The tenth concern is that a non-Indian spouse or common law partner may occupy a family home on reserve for a period of up to 180 days after the Indian spouse partner dies. It would appear that this order can be made even in spite of the terms of a will.
As to the eleventh concern, for the first time, a non-Indian can derive an economic advantage from a disposition of reserve land that has taken place outside of the permit, lease, surrender section of the Indian Act.
Compensation orders issued by judges will require parties to have financial resources to buy out the share of their partner's interest in the matrimonial home. It may not be possible for a spouse to compensate the other spouse for his or her share, as many First Nations in a region rely on social assistance as their main source of income and are often seasonally employed. Thus, it would cause undue financial hardship. It is also unclear how a compensation order would be determined by a judge, as he or she may only be able to evaluate the matrimonial home itself, but it cannot include the value of the reserve land itself due to its collective nature.
Furthermore, couples on reserve who do pay the mortgages on their homes cannot sell their matrimonial home in the local real estate market in the event of a marital breakdown and then split the proceeds, similar to couples that live off reserve. Couples on reserve can only sell their homes back to the First Nation itself, if it is willing and able to purchase it, or sell it to another band member. Thus, it is a very limited real estate market, which, as a result, significantly reduces its monetary value.
As one of your previous witnesses stated to you, First Nation property assets are valued at less than half of what properties are valued off reserve. Banking institutions will not extend loans and mortgages to First Nations, as they are unable to use their homes or property as collateral. I am familiar with that because I am experiencing the exact situation myself, mortgaging a house on reserve. The value is not there.
Our twelfth concern is that the bill goes beyond the scope of provincial matrimonial property legislation because it focuses on domestic violence, very broadly defined, and possession of reserve land when domestic violence occurs.
The thirteenth concern relates to the fact that the courts are given the power under the bill to issue exclusive occupation orders. These non-emergency orders are in effect for any period that the court specifies. They can be on an interim or other basis.
In closing, matrimonial real property issues on reserve are extremely complex, and the solutions must be developed in close consultation with First Nations, as the impacts can be significant and can have detrimental effects on local First Nation governance and policy issues such as housing, membership and land issues.
This bill is not yet law, and it is the position of many First Nations and organizations in Canada that this bill must be stopped in favour of a new, collaborative approach that supports First Nations developing their own solutions, laws and processes for dealing with matrimonial real property issues on reserve. It is our belief that there is no other way of effectively addressing this issue. Please support our concerns and issues regarding Bill S-4 by initiating or supporting a motion to withdraw it.
We thank you for providing us with this opportunity to hear our concerns with this bill, and we strongly urge to you to recommend to the Minister of Indian and Northern Affairs to alternatively work in close partnership with First Nations to develop and/or recognize other, non-legislative and/or community-driven measures to address this very important and pressing issue.
Senator Nancy Ruth: This is all troubling for me. I believe there is some truth in everything that has been said. Given that there has been, as you testified, chief, 20 years since the Supreme Court ruled, and given that women's groups and the Senate committee have raised this issue of MRP, if we were to withdraw Bill S-4, how would you see women on reserves being protected in the next 10 years until bands have time to get their MRP policy together? What would you do, all of you, to protect women? What have you done in the last 20 years? More importantly, what will you do now if we were to withdraw this bill?
Ms. Walker-Pelletier: As the chief said, this legislation deals with a very complex issue. It is not a women's issues; it is about community and our governance. It is about our safety. It is a holistic problem. First Nations across this nation of Canada are at different stages. In the west, British Columbia area, Alberta, Saskatchewan and Manitoba are in a more traditional treaty area, whereas further east, there are certain treaties, Aboriginal rights and so forth. This issue is very complex.
Working with my elders and my community through mediation, I am able to resolve the issues within my community. I do not rely on the court system at this time to solve my problems. Like the previous chief said, we were asked to define and develop our own policies. When we talk about inherent right, "inherent right" is our traditional laws that we carry within our communities. If government recognizes and appreciates that, it will go a long way to further defining a framework that is acceptable to First Nations across this land.
Senator Nancy Ruth: What would that look like?
Ms. Walker-Pelletier: The framework would be defined by each community. In Saskatchewan, we have treaty areas. Perhaps Treaty 4 Indians would define their own citizenship, membership and housing code. My participation in that treaty area would be further redefined to reflect my needs. I belong to Treaty 4, and my treaties should fall within that scope.
Senator Nancy Ruth: One of the problems I am having is that you make a lot of claims of what the bill does, takes away inherent rights and opposes this, that and the other thing. There is a long list. What should it look like if it should not look as it does? I need something more precise and specific. What should a bill look like for a Treaty 4 Indian in your band if it should not look like Bill S-4?
Ms. Walker-Pelletier: From the get-go, all 34 First Nations from Treaty 4 would be properly consulted. We would include our elders in the process. We would not create it from the top down. The bill would come from the grassroots up to define our rights in those areas. Our elders are paramount in the creation of our vision. We have a vision.
Senator Nancy Ruth: Would you share that vision with us?
Ms. Walker-Pelletier: Our vision is to protect our rights as First Nations people within Treaty 4.
Senator Kochhar: I have a supplementary question. Everything we have heard today talks about rights. Does there not need to be responsibility attached to those rights? Every right must have a responsibility. Can you define the responsibilities you have in adherence to those rights?
Mr. Augustine: First, as First Nations leaders, we have to acknowledge our responsibility to protect our rights for future generations.
I understand how frustrated you must be to ask that question and not get a straight answer. As we pointed out, this is a complicated issue. No cookie-cutter approach will work. What works in Saskatchewan may not necessarily be the practice in New Brunswick or with the Mohawk. Our cultures are as different as the English are from the French. That is sometimes lost in Canada, but there are huge distinctions within our cultures.
The practice in my community with respect to matrimonial issues is that the man would leave the house. As chief and council, we prefer to stay out of the affairs of the individuals going through those situations. It is better for us if they can work out their issues and come to a solution. We are getting dangerously close to bringing the chiefs and councils into the bedrooms of our citizens. A famous Canadian politician once noted: What business have we in the bedrooms of the nation?
I understand the frustration. However, it important that whatever is done, must be done right. The concerns we raise are legitimate when we talk about infringement on Aboriginal treaty rights and our individual rights. As complicated and frustrating as the process will be, that is the position we have to take.
Senator Nancy Ruth: For me, rights are always balanced against other rights. I know little about Aboriginal affairs; therefore, I may be getting it all wrong. I see Bill S-4 a transitional program, idea or whatever you want to call it. Yes, the bill imposes. I understand that is a problem.
However, as I read the bill, it does not do all the things that were articulated. It is an interim measure until bands can put in place what they want individually respecting their own customs, ideas, traditions, respect for each other and sense of community.
The centres of excellence will be chosen jointly. They will not be imposed. Violence against women is a problem everywhere in Canada, but this bill deals with it on band territory. Why is this not a justifiable infringement on some of your rights to encourage you to put in place rights for women, families and children?
Mr. Paul: I want to ask the senator what she does to protect women's rights in her community. You ask us what we do to protect women's rights in our community. What does your town council do to protect women's rights in your community?
Senator Nancy Ruth: Chief, that field happens to be my background.
The Chair: Can we make the response short?
Senator Nancy Ruth: I am currently working on the inclusion of women into sections 318 and 319 of the Criminal Code of Canada.
Mr. Paul: The Criminal Code overrides the Indian Act. We have RCMP detachments on the First Nations. If family violence occurs, the RCMP is called. If no one will open the door; the door is kicked down. They listen to the parties, make a decision and cart one party off to jail. Those charged have to go to family court, which will listen to the evidence and make a decision. A court order will be put in effect. The male or female may be made to stay away from the residence for a period of time.
The Criminal Code protects everyone regardless of race, sex or colour. If my band members commit murder, they will get the same punishment as anyone else if they are convicted. It is the same thing for all of us; First Nations are no different.
Women on my First Nation are protected. It boils down to two things: the land and the Constitution. It will end up in court cases. In 1984, I told John Munro, who was the Minister of Indian Affairs, that Bill C-31 was discriminatory against native women and it would end up in court sooner or later. In the McIvor case, the law was found unconstitutional.
If Bill S-4 is passed as it is now, it will be challenged in court. I know it will be.
Ms. Gabriel: It is important to note that we are not asking you to throw out this bill on matrimonial real property. We are asking for it to be amended. Quebec Native Women did a memoir in 2004. We were one of the first organizations to raise this issue and consult our people.
You must remember that you cannot address the issue of matrimonial real property in a vacuum; there are many related issues. How can bands create a matrimonial real property code if we have no extended land base, no access to lands and resources and are in land claims negotiations? The criteria for land claims alone are almost impossible and require extinguishment of title to land. It is impossible to discuss MRP alone given all the related issues.
I have a problem with the fact that many women might be "6(2)s", and much depends on whether the government is open to making amendments to the deplorable patch work done in Bill C-3 so that women's rights may be protected. Bill C-3 does not address the gender discrimination issue that will continue if it is passed. We have to look at these issues holistically.
Senator Jaffer: In 2003, this committee reviewed matrimonial real property rights and published a report. This committee identified the issues. We are all struggling with the challenges that Bill S-4 faces.
However, if this bill is not passed, then what? It again leaves a vacuum. I am really struggling with this. We leave a vacuum, and then what? What are the timelines? What will happen? This is the challenge that we face.
Is there a process in place? What will be happening? We heard from Chief Day Walker-Pelletier that there are things in place. I am aware that the consultation process here was not very good. I know that. I know there are lots of problems with this bill, but the thing that is pulling me is what is next if this bill does not become law?
Mr. Augustine: How many years have we gone without anything in place?
Senator Jaffer: A long time.
Mr. Augustine: It has been a long time. If we go ahead with this bill as it is, I think, from the comments you have been receiving from all the witnesses, you know that it will be challenged legally in a court of law. Then all of this would be for nothing, and we would have to go back to the drawing board.
From my perspective, I am saying simply let us press "pause" and look at some amendments. Let us include the First Nations more proactively, as opposed to drafting something and saying, "Hey, take a look at this and tell us what you think." If you include the First Nations, we will have done it right and it will stick.
Senator Jaffer: Can you describe the process? Everyone says "amendments." I do not think anyone is talking about amending this bill. Maybe I am wrong. If this bill does not go through, what is the process you foresee?
Mr. Augustine: I personally would see that the government take a couple of steps back and resource the communities so that the First Nations themselves can work toward developing a capacity to be a part of this process, along with the federal government.
Senator Mitchell: We are all struggling with the same issue, but I am very uneasy about imposing a solution, one culture over another culture. I hear what you are saying and I hear your frustration. It strikes me at such moments that you see something that we just cannot see, so I accept that.
Are there any models now of First Nations who have already developed some kind of MRP that is working, one that would demonstrate it can be done without this legislation and that demonstrates it can, in fact, be done?
Chief Day Walker-Pelletier, I think you mentioned that your First Nation has made some progress in this issue. Could you comment on that as well?
Ms. Day Walker-Pelletier: Again, I have to make reference to the fact that it is a very complex issue. When you talk MRP, you have to talk about housing and land; it is a holistic situation. We do the best we can in our communities without the resources. We could probably do more if we were properly resourced.
I will give an example of First Nations adopting election regulations and acts. It took many years. In my tribal council area, out of 11 First Nations, 3 First Nations are still under the Indian Act. The Indian Act has been around for many years through the election process, so I am demonstrating to you that it takes many years for us to achieve what we want to achieve through our own process, because it takes consultation and understanding.
I want to revert back to our elders. Our elders play a key role in sorting out the vision of what we want to achieve. It is through collaboration on the different programming within our communities that we are able to address MRP in a more family oriented community consultation, but nothing is written in stone. It is just through understanding, appreciation and mediation that we are able to say we are doing MRP.
Senator Mitchell: Okay.
Ms. Day Walker-Pelletier: In order to put it into a code, we will need resources. Lawyers cost a lot of money. That is who we need to advise us, because elders do not think from a legal point of view. To put our traditional teachings and our traditional thinking into a legal viewpoint is often very hard to do. I understand the federal government; we need to protect our women and children and we want to do that in our community, but it will take resources.
Senator Mitchell: I understand that too, and there is no guarantee that a matrimonial property act will actually protect women and children against violence. Certainly, in the rest of Canada, we have lots of matrimonial property acts and there is lots of violence against women and children in spite of that.
One of the biggest issues, for example, is that there are not enough shelters for women and children when they are confronted with violence in their own homes. They have nowhere to go and they cannot stay where they are. In the rest of Canada, there are not enough, let alone on First Nations lands.
My question addresses your point of resources. The government is putting a high stake in this idea of a centre of excellence, whatever that means. Have they consulted any of the native groups about how that might be structured, who might be hired for it and whether you would have input into that process?
Ms. Day Walker-Pelletier: No.
Senator Mitchell: So this act could be passed next week and they have not given any thought to it at all, as far as you know.
Ms. Day Walker-Pelletier: No.
Senator Mitchell: So they would be making that up and imposing that as well, probably.
Ms. Day Walker-Pelletier: Yes.
Senator Mitchell: Also, you made a very interesting point — among many that were made — that nobody has done any kind of estimate for what it will cost to implement MRP policy in each of the First Nations. That is a telling point. I guess nobody has done such an estimate; and there are no resources beyond the centre of excellence, which we know nothing about. You have not had any resources to assess the resources that would be required?
Ms. Day Walker-Pelletier: No.
Senator Mitchell: And lawyers are expensive.
The Chair: That is the extent of your question and the answers are "no." is that correct?
Ms. Day Walker-Pelletier: Nobody consulted us.
Senator Dyck: I want to thank the presenters to their interesting insights today. Thinking in terms of marriage breakdown, we have two very different scenarios. First, we have the issue of a marriage with violence and abuse going on in the family. I think that is the issue driving Bill S-4, because we are worried about women and children being subjected to violence and we want to protect them. Second, we have the other type of marriage breakdown where violence in the home is not an issue. In that case, the issues of property might be more important — or perhaps not.
Everyone here is concerned about this so-called gap as to what will happen. I think things are happening, from what you have been saying today.
For instance, Chief Day Walker-Pelletier, you were saying that many First Nations in Saskatchewan are dealing with these situations, which I think was the question that Senator Nancy Ruth posed.
If there was a situation with a violent, abusive relationship on one of the reserves in Treaty 4 and it came to the attention of the community or the chief and council, how would it be resolved? Would there be mediation? Would there be alternative dispute mechanisms? What would happen in a case like that to protect the woman, if it is the husband who is being violent? Say they had children and they lived in a single family home. What would be done to resolve that situation? What would be your best guess as to what would be the ideal solution?
Ms. Day Walker-Pelletier: If there was violence taking place between a husband and wife in my community, the husband would be removed. We have our own policing on the four reserves. The women and children would stay, because usually the kids are in school. Once the husband has left, any charges are dealt with. In my community, I have an unfunded wellness team that deals with families. It has well trained members who work with women, children, men, young adults and youth.
A family is a family, and we do not want to create division. Children want their parents. When the husband returns to the community, we enter into mediation and our wellness team formulates plans.
If the problem continues, the man is asked to leave.
Mr. Augustine: In my community, our child and family services work closely with the province. We have the RCMP in our community as well as our own First Nations policing. In situations of domestic dispute, it has been the cultural practice of my community for as long as I have known that the man leaves the house. That is well accepted in my community. They should know themselves that they have to leave, but if they do not, they are assisted in their departure.
Ms. Gabriel: You have very good communities. They may be the exception. Women have been kicked out of their homes because their band is implementing the Indian Act. That is why I have concerns about bands creating their own matrimonial real property laws. On this issue Aboriginal women's groups have been trying to say that status does not necessarily mean you have the right to live in the community. Many women have regained status as a result of Bill C-31, but they are not allowed to live in their communities or to own homes.
We cannot isolate MRP in a vacuum. Some communities do not have good policing, and if a marriage breaks up, the family may kick the woman out.
There are many unique situations that we must consider. This should be considered a human right, because women do not have rights under the Indian Act. It is a paternalistic policy and program designed to control us. We need to look at this from a more holistic and human rights perspective that will protect women and their children. We need more dialogue on this issue.
There were two months of consultation. When legislation is passed in Canada on issues other than Aboriginal issues, is there not more than two months of discussion with Canadians? I have presented at least four times on this issue, and we are still at the same spot because the government refuses to hear our voices, refuses to look at this issue in a holistic manner with all the related issues. You cannot simply apply what happens in the rest of Canada to on reserve.
In Quebec, we have the civil code. We were contacted by people in Justice Quebec who said that they are concerned about this bill. There is no harmony between the federal legislation and the civil code of Quebec, yet there has been no discussion on that. How long do we have to keep asking that the Crown uphold its duty to have true dialogue with Aboriginal peoples and to accommodate our concerns, as many Supreme Court decisions in Canada have stated must be done?
Senator Dyck: In your respective communities, how many homes are owned by the occupant of the house? Are they mostly social housing?
Ms. Day Walker-Pelletier: We have all social housing.
Ms. Gabriel: We have certificate of possession.
Senator Brazeau: Thank you for your presentations this afternoon.
I heard a lot about lack of consultation with respect to this bill. This bill is to protect the rights of Aboriginal women in particular. The Native Women's Association of Canada received $5 million from 2005-10 for their Sisters in Spirit campaign, and recently $10 million was announced over two years for missing and murdered Aboriginal women. If you tie all of these issues together, this bill is about protecting the rights of families, but in particular Aboriginal women and children in the case of marriage breakdown.
We have also heard that this bill might go against Aboriginal treaty rights. Aboriginal women are affected by a legislative gap. They are kicked out of their homes with their children and have nowhere to go. They often have to move off-reserve because of lack of housing. How do you explain to those Aboriginal women that you believe we should not proceed with this bill as proposed, that we should step back and do it right?
The Assembly of First Nations and the Native Women's Association of Canada each received $2.7 million specifically for consultations. I do not understand why we hear that there were no consultations. If that is the case, what was done with that money?
Mr. Augustine: Are you saying that the AFN received $2.7 million to consult with us, or that the AFN received that money to consult with the federal government?
Senator Brazeau: The AFN and chiefs like yourself have said time and again that you are the ones in the best position to consult with the grassroots people. This funding was specifically for consultations to be held among yourselves, I assume, at the initial level, and with the grassroots people subsequently.
Mr. Augustine: Funds that are designated to the AFN are for their activities, not for me or the First Nations in New Brunswick to engage our people.
Senator Brazeau: So the AFN did not consult you on this bill?
Mr. Augustine: I am not sure what the AFN has done with respect to the specific monies you are talking about. They must have raised the issue at general assemblies or at chiefs' committees. The AFN would have to speak to that.
I can only tell you about my experience with my community. Money that goes to the AFN does not necessarily translate into proper consultation with my community members.
Senator Andreychuk: Are you saying that the AFN did not come to you, as a chief, to consult at any time on this issue?
Mr. Augustine: No, but I am not saying that they did not —
Senator Andreychuk: I am not asking who else. I just want to know about you.
Mr. Augustine: I am referring to their processes with national meetings, but not all chiefs attend the AFN national meetings.
Senator Andreychuk: I appreciate that. I want to know whether you have been contacted in any way by the AFN on this issue.
Mr. Augustine: I am not saying that they never made an attempt, but I personally do not recall any correspondence. I have many examples of that.
Ms. Gabriel: For clarification, I think the money was transferred to the Native Women's Association of Canada in October. We were given a month, I believe, to conduct what was considered consultations.
I also attended the meeting of the Assembly of First Nations of Quebec and Labrador when matrimonial real property was discussed. I heard chiefs say that Aboriginal organizations do not have a legal obligation to be consultants for the federal government.
The Native Women's Association of Canada has its own funding. Quebec Native Women is very independent from the Native Women's Association of Canada. It is unfortunate that we talk about money. I will repeat my previous statement. There were perhaps two months of consultation on a very serious issue involving legislation when Canadians are usually accorded a year, at least, of consultations. A very rushed deadline was imposed by the federal government on this particular issue. In spite of all of that, of the two and a half months that we were given, no recommendations will accommodate the concerns of Aboriginal women's organizations.
Senator Brazeau: Several weeks ago an Aboriginal woman walked into my office and said that one night she returned home and her husband had changed the locks on her. She could not get in. She got kicked out; her kids were out in the streets.
When I hear that this particular piece of legislation may go against Aboriginal and treaty rights or against the inherent right to self-government, do you not believe that Aboriginal women and their children, in particular, have an Aboriginal and treaty right to be protected in the case of a marriage breakdown?
Mr. Augustine: Obviously. Let us not lose sight of what is important here, the children and women's rights. However, we are making a comment with respect to Aboriginal rights because this has to be addressed as well. We are not putting up the Aboriginal rights and saying that we are not concerned with the welfare of the women or the children. That is foolishness. Of course, we are, and we have processes in our community to deal with that issue.
Because we are addressing the Aboriginal rights issue in this proposed legislation, it should not take away from the other issue. You are making me feel as if, in arguing to protect our Aboriginal rights, we are saying that we do not care about our women and children. That is not the case.
Senator Brazeau: If you take an Aboriginal couple living off reserve, obviously they have access to the provincial laws applicable in the case of a marriage breakdown.
Mr. Augustine: Yes.
Senator Brazeau: This draft piece of federal legislation, if passed, would be a temporary measure, a protection until First Nations could develop their own laws that would satisfy their own needs, customs, traditions, et cetera. It is a protection now. However, if we step back, how long will it take before we have another draft piece of legislation that chiefs and other leaders will be content with? Will we wait 10 years until we get our act together? I heard from Chief Paul that, if passed, this legislation would be challenged in court. I would like to know where the funding will come from to challenge it in court. Do you not believe that perhaps funding should be better utilized to develop the codes now instead of fighting this legislation?
The Chair: Does anyone want to give a brief response to that?
Ms. Gabriel: I will reiterate that, yes, I agree, we are not asking for the bill to be eliminated. We are asking for amendments to address the concerns we have had for so many years. The First Nations community can only create their own matrimonial real property code if they enter into land negotiations, which requires them to extinguish land title.
Senator Brazeau: No, that is wrong.
Ms. Gabriel: They have to go into land claims negotiations. That is what was explained. They have to go into land claims negotiations or the land governance act, whatever it is. It still has to be ratified by the federal government and it still does not follow customary laws.
All we are asking for is dialogue. The details can be worked out in true dialogue to accommodate Aboriginal peoples, and that is something that the Supreme Court of Canada has said is within the Constitution Act of Canada.
The Chair: Thank you, Ms. Gabriel. We are running overtime. I want to conclude the session this afternoon, but I have one question I would like answered.
It is with regard to the ninth concern, and it is a very important part of this discussion. We heard from the Canadian Bar Association that the issuing of exclusive occupation orders may result in a non-band member or non-Indian spouse being able to occupy the family home for an unspecified period. The bar association recommended that judges be directed to consider the principle of minimal impairment and perhaps limit the duration of an exclusive occupancy order. Would that provision respond to your ninth concern at all?
Mr. Augustine: I am sorry, I did not catch that.
The Chair: Would the bar association's recommendation that judges be directed to consider the principle of minimal impairment, which means remove it, perhaps during the duration of the occupancy order, be of any assistance in terms of the issue?
Mr. Augustine: I can imagine it would be of assistance.
The Chair: Thank you, Ms. Gabriel, Chief Augustine and Chief Day Walker-Pelletier, for coming today.
We will now hear from Dr. Pamela D. Palmater, Chair, Centre for Study of Indigenous Governance, Department of Politics and Public Administration at Ryerson University. After that, we will hear from Chief Shining Turtle and Ms. Meawasige.
Pamela D. Palmater, Chair, Centre for Study of Indigenous Governance, Department of Politics and Public Administration, Ryerson University, as an individual: Thank you for having me. I appreciate the opportunity to be here. Only a few weeks ago, I was presenting in the house on Bill C-3, and I see a lot of correlations between the two bills.
I am a Mi'kmaq woman originally from Mi'kmaki territory in New Brunswick. I am currently the Chair of Ryerson's Centre for Indigenous Governance. It is a new centre at Ryerson. We have had no end to the requests from First Nations and Aboriginal organizations, saying, "Can you help us with this legislation?" The federal government is ramming legislation through the Senate and the house at the same time, no less than five pieces of legislation right now, in addition to all the other provincial legislation. They have no resources to deal with it. They have no capacity. They need experts. They need to know how all of this legislation will impact their communities before they can come to the table and say, "Here is what we like and here is what we do not like."
In addition to that, we have had tonnes of requests for help drafting membership codes, MRP codes and a whole host of issues. Their concern, of course, is that there is no funding. They are ready and willing to go, but they have no funding.
Because we are short on time, I will skip my preliminary remarks and go straight to my recommendations.
First, Bill S-4 should be withdrawn, only until proper consultations are done. I am not suggesting that we kill the bill. While there have been comments that consultations were done on MRP in general between the minister's representative, AFN and Native Women's Association of Canada, they were not done on Bill S-4 specifically and with First Nations. That is a very important distinction to keep in mind. Rushing this bill through Parliament so that you end up with an illegal bill will not do anything to address the vacuum. You need a bill that is legally defendable and that actually provides remedies for Aboriginal women, men and children.
If I can make a quick comparison, I wrote a 700-page thesis on the Indian Act registration provisions, and it took me months to understand the implications of Bill C-3 and what that means. Most people here probably could not say what Bill C-3 will do. That was only eight pages. That was only 10 amendments dealing with one basic section of the Indian Act. By comparison, Bill S-4 is 45 pages and 60 sections. If the federal government has not consulted and informed individual First Nations, how are they supposed to know what this bill will even do in their communities? We can talk about principles, but what actually happens on the ground is something completely different.
If the bill is not withdrawn for consultation purposes, I have several recommendations. First, the bill must include a section in the preamble that specifically acknowledges First Nations jurisdiction over property and civil rights in their communities, consistent with section 35 of the Constitution Act. That is first and foremost, not playing with the wording to refer to it, but specifically acknowledging that jurisdiction.
Third, specific reference must be made in the preamble to the inalienability of reserve lands and the fact that they are reserved and protected for the exclusive benefit of Indians and Indian bands. The minister appeared before this committee a week ago and said that Bill S-4 clearly will not affect title to lands or change the status of reserve lands. On the other hand, he also admitted that there are provisions that will touch on those land protections. Despite those conflicting assurances about reserve land protections, Bill S-4, as noted by the Canadian Bar Association and several others, will create new interests in lands and to the benefit of non-Indians for the first time since the inception of the Indian Act.
Fourth, a "for greater certainty" clause should be added that specifically clarifies that First Nations have the power to enact MRP codes. Everyone is asking, "Why are First Nations not running to the department, asking to do their own MRP codes?" Aside from the capacity issue, the minister appeared here and said he cannot recognize those codes. We cannot have it both ways. We cannot say, why have you not done this and, at the same time, say we do not recognize your laws. There must be a better balance between what is happening in both policy and practice and what we are advocating in law.
Fifth, with regard to laws enacted by First Nations, there must be a specific provision that provides that, in the event of a conflict, First Nation laws are paramount.
Sixth, sections that refer to mandatory referendum or ratification processes must be deleted entirely and replaced with a section that allows First Nations to establish not just their own law making but their own community-based dispute resolution mechanisms. For the most part, as I think most of the witnesses have testified, matrimonial property gets dealt with somewhat informally. Communities in my region have unwritten codes, whether it is the man leaves the house or whoever has the children gets the house, but there are processes in place. They may not be in Bill S-4, but there are processes. We have to find ways to support First Nations, to take them from what has been tradition, custom and informal to a more formal process to give everyone a degree of certainty that will make everyone feel comfortable.
Seventh, there must be a non-derogation clause. That goes without saying; it is a no-brainer. Section 25 of the Indian Act and the Canadian Human Rights Act have such clauses. Our rights are protected in section 35 of the Constitution Act. A non-derogation clause is rather straightforward.
Eighth, there must be a specific and complete exemption from the application of Bill S-4 for all First Nations that have already developed their own MRP codes. Six Nations testified before the committee a week ago. They have their own codes that they are ready and willing to implement. As far as they are concerned, Bill S-4 will not apply on their territory. They have done what you ask; they are good to go. Let them go ahead, with a complete exemption from Bill S-4 that is not conditional on their measures looking like Bill S-4 or meeting Bill S-4's expectations.
Point nine is similar to the repeal of section 67 of the Canadian Human Rights Act. I do not think a single person around this table would say that the rights contained in the Canadian Human Rights Act are not essential, fundamental and should not be respected on a regular basis every day. That First Nations do not have those rights should be considered no less urgent than MRP, for example.
However, the difference with the Canadian Human Rights Act repeal was that it allowed bands a three-year transitional period. A potential balance between the vacuum mentioned or waiting 20 years for laws to be written could be a three-year transitional period in this case. It will give First Nations the opportunity to do what you are asking them to do, but telling them they cannot do. The laws could be worked out during that period of time.
It took Canada over 100 years to get to the table to address MRP. Three more years for First Nations does not seem like a big leap to respect their jurisdiction in this area. This would eliminate the vacuum.
Tenth, any section of Bill S-4 that creates a new interest in lands for non-Indians should be deleted entirely. Temporary possession of reserve land for 90 to 180 days in emergency situations that appear in the current act are completely different from creating a 10-year, 18-year or life interest in reserve lands for non-Indians.
First Nations collective rights to their lands should not be taken lightly. This is not about women versus men or children versus their communities. Reserve lands are protected by the Indian Act, section 35 of the Constitution Act and numerous treaties. The Supreme Court of Canada has said repeatedly in Sparrow, Haida, Taku, Delgamuukw and Mikisew Cree that Canada has fiduciary responsibilities with regard to land. Canada cannot act unilaterally when it comes to Indian lands.
I believe that Canada lacks the requisite authority needed to unilaterally change, against the will of First Nations, the essential characteristic of reserve lands that makes it inalienable, except to the Crown, and for their own specific benefit.
Eleventh, any section of Bill S-4 that refers to or incorporates the use of a verifier administered by Canada should be deleted entirely. Canada's record on human rights is spotty at best and shameful at worst when it comes to Aboriginal people. What gives Canada the right or the moral superiority to say: We have to supervise you in what you do to ensure human rights for Aboriginal women are protected. I only have to point senators to the Lavell, Lovelace, Corbiere and McIvor cases or the native child and family services discrimination complaint to illustrate that Canada does not have a good record in that regard. Why are we imposing a double standard? Canada's own ministerial representative concluded in her report that First Nations are no more likely to violate the human rights of their citizens than Canada is. If that is the case, the process of a verifier is more than simply an insult.
Twelfth, we need a "for greater certainty" clause to clarify that no provision in Bill S-4 overrides or alters, in any way, the protections contained in section 89 of the Indian Act because of the unique and special legal status of reserve lands.
No analysis has been presented with regard to the interplay between section 35 and the different sections of the Indian Act in relation to land and treaties. How these interact with Bill S-4 makes the bill fatally flawed in my mind. No one can speak to how these measures impact land and Aboriginal treaty rights in the future. We focus only on matrimonial real property.
A fundamental difference in world view is involved. The principle behind bill S-4 is protecting Aboriginal women. Aboriginal people look at the entire community. We talk about a bill protecting individual rights. Aboriginal people talk about protecting communal rights, which include the individuals. The situation is not either/or. The ministerial representative specifically said this is a false dichotomy perpetrated repeatedly by Canada to push forward individual rights over collective rights.
Thirteenth, sections relating to evaluation should be amended for all of the reasons that every single witness has addressed. How much will an Aboriginal woman living on social assistance with six children have to pay her ex-spouse for a house that has no windows, no running water and is full of mould and asbestos? Will the woman get a loan from the bank on those credentials to pay their ex-spouse? I do not think such questions help Aboriginal women in any significant way.
Fourteenth, definitions relating to "spouse" must be amended to reflect a period of cohabitation longer than one year, given the unique and constitutionally-protected nature of reserve lands.
I have three general recommendations that are not specific amendments. First, funding should be provided to First Nations to participate both in Bill S-4 consultations and to help develop their own laws and dispute resolution mechanisms. I have not met a First Nation yet that does not want to do those consultations. No one says they will not consult if the government provides the funds. No one says they will not develop their own laws if provided the funds. Think of unique ways to partner with universities to accomplish these goals.
For example, no funds were provided to bands after Bill C-31 to develop their membership codes. No senators should be surprised that the majority of bands in Canada do not have their own band membership codes. No funds were provided to First Nations, despite implications that there would be funding, to review their codes, laws and bylaws to bring them in line with the Canadian Human Rights Act. There is less than one year left until the June 2011 deadline, and the majority of First Nations have not been able to do that review.
Bill S-4 is a repeat situation. If we do not take positive steps to build capacity in First Nations communities to develop their own laws, this legislation is far from transitional. Politicians can sell the legislation using political spin around the term, but in reality First Nations will be stuck with these laws.
Second, senators may think this issue is unrelated, but it is related. Bill C-3, what we call inequality in Indian registration act, must be amended to address fully gender inequality. Such inequality is a major barrier for Indian women and their descendants to access their right to live on the reserve.
Thousands of people are currently excluded. Bill S-4 will not do anything for them because they will not be living on the reserve in the first place. They will not have a house. Therefore, matrimonial property legislation will not help them.
The minister appeared before this committee and said you need to look at Bill S-4 in the bigger context of what we are doing with all the legislation we are putting forward, and he specifically mentioned Bill C-3. I encourage the committee to do just that. If we are not addressing real gender inequality issues in Bill C-3, Bill S-4 will not provide any real gender equality remedies for Aboriginal women.
My last recommendation, of course, relates to other legislation; but all of the bills — five of them right now that are going through the House of Commons and the Senate — should be withdrawn until Canada comes up with a comprehensive way to consult with First Nations on these bills. Ramming these bills down First Nations' throats will only engender bitterness, and it will cost people when they have to go to court.
One of the senators raised a good point: Where will they get the money to bring these court challenges? Exactly; they have no capacity. That means, there again, they do not even get to access to court system to fight for the rights that are constitutionally protected. We should not let a situation like that happen.
I could go on and on, but I do have a fairly lengthy submission that I have already submitted to the clerk.
The Chair: Thank you so much, Ms. Palmater. That was a learned and excellent presentation. We will listen to the other witnesses first and then senators will come back with questions.
Chief Shining Turtle, I believe you would like Ms. Meawasige to speak now before you do so. She is an elder from the Serpent River First Nation.
Emma Meawasige, Elder, Serpent River First Nation, Anishinabek Nation: I am a member of the Serpent River First Nation. I serve my people and community as a councillor and an elder in the community.
I was raised traditionally in our native customs. I feel honoured today to be able to share my knowledge. Having experienced and taught the teachings and customs of our heritage, I am always happy to share and pass this traditional knowledge to our younger generation.
We always had our own judicial system to guide us, which is based on honour and respect. Main facts and customs from our ancestors will always remain with us. We are opposed to being dictated to.
Needless to say, a lot has been lost, but the main facts remain intact among our nations. Our culture has always been oral in honour and respect and passed down from generation to generation. Children were disciplined by all adults whenever needed. Guidance was always there among all — hence, no programs.
Our lives did not have monetary value. We were taught that the Creator made his creation for all of us to respect and enjoy. Ownership was never an issue. The home remained intact to raise the children and take care of our elders.
Mothers are the caregivers in the home, with support from the men folk. The caregiver in the home always had the full entitlement of the home and belongings. This way, children were always secure for home and care.
Along with the seven grandfather teachings, we honour and respect the sacred items that signify our sovereignty. Our eagle staff and First Nation flags support each community and are upheld at First Nation meetings and pow wows.
Ages ago, when newcomers arrived here on our land, our people helped and shared their livelihood to support them. We in the Anishinabek Nation in our different tribes have always had our own systems. The clan and totemic were social and political structures. Since that time, tables have been turned and so have many of our systems. Back when our people also did not understand English, communication was a hindrance.
Today we can understand one another much better, thereby having better relationships and interaction.
Shining Turtle, Chief, Anishinabek Nation: How much time do we have? Are we done at 6 o'clock?
The Chair: No, you do not have to rush. We have at least 35 or 40 minutes.
Mr. Shining Turtle: I have a gift here of cloth and tobacco. To whom do I make this presentation?
Senator Jaffer: To the chair.
The Chair: Thank you.
Mr. Shining Turtle: I have to apologize. I was at a meeting this afternoon on the HST and its impact on First Nations in Ontario. I can tell you it has been a very frustrating day.
The Chair: Then you are here at the perfect time.
Mr. Shining Turtle: [Witness spoke in his native language.]
I have just told you my Indian name is Shining Turtle and I am from the Sturgeon Clan. I come from a place called Birch Island, which is in the Manitoulin Island area, what we call Great Spirit Island. I am here to speak on behalf of the Anishinabek Nation. We have 41 First Nations within the union and we want to talk about Bill S-4.
As background, you should consider the impacts now of the HST and the list of other bills that are being put before you and others on First Nation issues. On private property, we saw the devastation in the 1800s caused by the Dawes Act, which rid First Nations in the Americas of their land. They are slowly starting to rebound now on the idea of privatizing Indian lands.
You should also bear this presentation in mind and that there has been no consultation and accommodation. I speak as a chief who has not been invited to make any comments to any document that has been presented by the Honourable Minister Chuck Strahl. My council has seen no documents in this regard, so how can we say we have been consulted?
I am a civil engineer, so I can speak intelligently on things of infrastructure, and I will give you some guidance at the end of this presentation on how we can do that together to help with some of the problems that we face. We have only amassed $26 million of construction in our community and that has changed our community dynamic — people are looking more progressively on the world than oppressively in spite of what is put before us by government circles. Let us start.
Rather than reiterate the succinct presentations made to you on the fundamental flaws of this bill, I want to focus our presentation on provisions concerning the development of First Nation matrimonial real property law under the bill, which we strongly assert are extremely onerous and paternalistic.
We will then present the process undertaken by the Anishinabek Nation to develop our own matrimonial real property law, which was undertaken and has been passed and which goes far beyond the bill. It is a true embodiment of respect for our Anishinabek Nation values as people.
Sections 7 to 16 of the bill provide that First Nations may pass their own matrimonial real property law subject to the following conditions, and there are many. Oh, there are so many. Let us insightfully read. They develop a matrimonial real property law; they notify the province, the attorney general of their law; and a verification officer determines the reports as to whether the approval process has passed a test in accordance with the bill.
A community ratification vote is required and 25 per cent of all eligible voters should come out and approve such a document. The verification officer will observe the so-called invigilator and will report that the community ratification process was conducted in accordance with such bill. The matrimonial real property law becomes law only when the verification officer certifies the community ratification process. That is absolutely amazing.
It is suggested that the greatest flaw in the provisions is the assumption that First Nations have the necessary capacity and resources at their disposal to develop their own matrimonial real property law. Developing such laws requires extensive consultation with First Nation citizens, retaining such experts as lawyers — who will be paying 13 per cent HST on July 1 — to draft such laws. They must understand the many nuances involved in matrimonial real property issues and in approving the laws through ratification vote.
Clearly the bill is silent on where such capacity and resources are to come from. Many of our First Nations people live below the poverty line. In my own community, 50 per cent of the membership live on welfare. I live with that reality every day.
First Nations are expected to self-fund the developments and approve a process for such laws. The cost will not end after the approval process as there will be ongoing costs and capacity required to implement and enforce the matrimonial real property law. Who will bear these costs?
There is the issue of the so-called verification officer who has complete authority in determining whether a First Nation ratification process is acceptable, whether it was conducted in accordance with the requirements under the bill and whether matrimonial real property law on a First Nation will or will not be certified as a law. This is truly paternalistic and reminiscent of the old Indian agent who ran rough shod over many First Nations in Ontario, and that damage has not yet been dealt with.
Furthermore, the requirement that a First Nation conduct a ratification vote on their matrimonial real property is without precedent, as this is not required for any municipal, provincial or federal government to pass law. Compounded with this unprecedented requirement is the high threshold of 25 per cent of eligible voters to approve matrimonial real property law. Given that many First Nations do not achieve those numbers during their First Nation elections, it can be reasonably presumed that they will not achieve those numbers for a ratification vote on matrimonial real property. Historically, like in Canadian society as a whole, voter turnout is low at best.
Most significantly, the requirement that the ratification vote even be conducted disrespects the traditions and customs of First Nations in the Anishinabek Nation. It rules out approving such important matters by consensus or an equivalent way of decision making.
The bill is silent on what happens if a ratification vote fails. What happens then? Can another ratification vote be called? Would the required number of eligible voters be reduced? Does the chief and council resign? Does the community leave the village and start again in a new village? Again, from where will the resources come to pay for these repeated ratification votes?
In summation, the federal government's statement that the bill ". . .also includes a mechanism for First Nations to develop their own matrimonial real property laws. The content and structure of community-specific matrimonial real property would be agreed upon by the citizens of a First Nation and the First Nation government with no federal government involvement," are complete fallacies.
In fact, the federal government is directly involved in the entire process of determining whether a First Nation will develop their own MRP law by establishing such onerous and paternalistic requirements and by not committing any capacity or resources to First Nations to develop and approve such laws. The bill will establish a process by which First Nations can only envision developing their own matrimonial real property laws but can never achieve it.
By way of comparison, in 2007 the Anishinabek Nation developed our own MRP. The Anishinabek Nation matrimonial real property law protects our families, our children, our communities and our lands upon marriage breakdown. I will now refer to that as the Anishinabek Nation MRP law. I have submitted that to the committee.
The Anishinabek Nation retained the jurisdiction to develop its own laws for its citizens over matters, including MRP. In 2007, the Anishinabek Nation exercised that jurisdiction by engaging First Nations in an extensive consultation, drafting and approval process by which the Anishinabek Nation MRP law was formed. Whitefish River was part of that, and we held extensive community discussions on the Anishinabek Nation law. Our consultation process, administered by a team of political leadership and technicians from the Anishinabek Nation consisted of establishing a framework for consultation. We were asked in Whitefish River whether that was something we wanted them to do. When the requisite number said yes, we moved on.
Throughout the territory, we hosted extensive consultation sessions with the First Nation citizens on how issues of matrimonial real property are currently resolved within the First Nation. They asked the people who would be dealing with it. If I want to know about your house, I will ask you. I do not go and ask the Prime Minister of Canada, because he does not know what your house is like. We went right to the citizens who knew about it; the elders, the women, the grandfathers, the aunties and the uncles. They told us what should be in Anishinabek Nation matrimonial real property law, what principles we should use for the Anishinabek.
There was reporting, drafting and debate on the Anishinabek Nation MRP law. There was unanimous approval of the Anishinabek MRP law by the Anishinabek Nation at our June 2007 assembly in Whitefish River, my community. The magnitude of developing the Anishinabek Nation law for the 40-member First Nations, while respecting the unique differences and circumstances of each First Nation, cannot be overstated. It was not an easy process, but it was ours. We owned it and we developed it, and that is a fundamental difference. You will own what you build.
How would you feel if I imposed my MRP law on you? It would be disconcerting. What is in it? What does it look like? What were you thinking? That is the feelings you have when you do not own something.
The Anishinabek Nation united to develop the law in a very short period of time. It took us six months, and we used our own resources, because our citizens were clear that they did not want a law on matrimonial real property that was imposed by the federal government.
The Anishinabek law established a main framework by which matrimonial real property law will be addressed in the Anishinabek Nation. The rights and interests of Anishinabek citizens and non-members are protected. How matrimonial real property will be divided, distributed, enforced, approved, the enactment and amendments are all tied up in this document.
One of the central aspects of the Anishinabek Nation MRP law is that disputes concerning matrimonial real property matters will be resolved by an Anishinabek Nation tribunal and commission. Every First Nation said, "Let us have an independent body, a tribunal or commission, that will hear these disputes." Some communities are small, with 30 or 40 people; they are all related. How do you adjudicate such a process?
We have a process now where we train people. We are paying out of our own pockets to train alternative dispute resolution people to deal with these matters. They are the commission. We passed band council resolutions at every one of our tables in support of that commission, an alternative dispute resolution mechanism, rather than resort to the provincial and federal courts. Believe me, I sit in those on a regular basis. They are not healthy places to be at the best of times. Do you want to clog the courts with more property problems? I do not know. The courts are very busy. You may want to sit down with a group of judges that deal with this stuff on a regular basis and hear what they have to say about this. If you can find a solution away from the courts, most people, I would say, would prefer that. If you can make that solution your own, most people even prefer that.
The consultation process and content of our law was guided in part by the process used by a community that I represent, Aundeck Omni Kaning and Whitefish River. Aundeck Omni Kaning built their MRP law 22 years ago. They approved it on their own, and now, according to these principles, it is not applicable. Whitefish River produced its MRP law over four years ago, and according to what I read in the bill, it is not applicable. Yet, we had three distinct readings in our council on this law. We had massive consultation in the community. We hired independent lawyers at arm's length from us. We did all this work, and it was women who drove it. Now you will come back to us and say, "garbage." I just cannot believe that.
Our Anishinabek law remains the law for the Anishinabek Nation and requires full implementation to be brought into force. The Anishinabek Nation continues to lobby the federal government for necessary resources for the implementation, and though repeatedly having received favourable interests from the federal government, including the former and current Minister of Indian and Northern Affairs, the bureaucracy says that they can find no resources for this.
Most recently we were informed by INAC that it does not plan to make any financial resources available to First Nations to develop and ratify their matrimonial real property laws. We are being set up to fail. With this, we ask you: How will the Anishinabek Nation fully implement its Anishinabek Nation MRP law? How will all First Nations in Canada develop and ratify their own matrimonial real property under Bill S-4?
I want to make some supplementary comments after listening to issues raised here today.
There is no recognition of our laws, and it is clear if you read the Indian Act. There are 12 powers that I have under the Indian Act. I can control noxious weeds in my community. I just feel so pleasured to do that. Every week I go around and find noxious weeds. However, to develop something real with my community, such as matrimonial real property, and to be told by the government that we cannot do it, is an absolute insult to humanity.
We should withdraw all these bills until there is proper consultation. This has been just rammed through. I represent the UCCM bands. I am the tribal chairman. I represent six bands there. I am also the tribal chairman of the Manitoulin bands, and they have no clue where I am at right now other than I am in the room arguing for their rights. Wikwemikong is a very large First Nation. It has the largest land base in Canada, and it is silent here. Why? They have not been consulted. Five thousand people are there, and you are sitting here debating their fate.
It does not recognize our law. This paternalistic approach continues today. We dealt with HST today. There is the privatization of real property on reserves. That is coming down the line, as well as matrimonial real property, and the list goes on and on. For some reason there is the expectation that First Nation leadership are right on top of this every minute of the day, plus the thousand other issues that we have to deal with on a regular basis; and then we are supposed to find the resources for that. It is an impossible task. You are setting up failure. The government then comes in and says, "We have to fix this. You failed." No First Nation ever plans to fail, but governments have plans for us to fail. Maybe that is what is going on.
We developed our own code four years ago. As it stands right now, it is not applicable; it is garbage. AOK did theirs over 22 years ago. It is applicable. In Whitefish River we developed our own citizenship code in 1987. That is now up in the air.
There has to be a proper analysis of how all of these measures in these bills interrelate. How are they linked together? How do they work with the First Nations that are working with them every day? That is absolutely paramount. It was paramount when I went to engineering school that you do a proper analysis so your structure would not fall. You do the same thing here, because that is what you are building. You are building a structure, and it cannot fail. You need to do the proper analysis.
What about collective rights? You are talking about an Indian band. You think about what the word "band" means. "Band" does not mean "individual." It means "collectivity." I represent a band of Ojibway people. They opted for a collective way of life. Those who do not can find cities and towns right across Canada. It is a beautiful nation. Those who opt to, stay within the confines of the band. I am reminded of that all the time, that I represent their collective band rights.
I thank you for allowing us to make this presentation. We will take any questions that you might have.
The Chair: Thank you, Chief Shining Turtle. Your's was a very heartfelt and well expressed presentation.
Senator Baker: I want to congratulate the presenters here today. You have done a great job in truly outlining your feelings toward this legislation.
Pamela Palmater, in what area do you have a doctorate?
Ms. Palmater: I did my doctorate in law at Dalhousie Law School in Aboriginal law but specifically in the Indian Act and the interplay between the Indian Act, the Constitution and various human rights documents.
Senator Baker: It is the science of law?
Ms. Palmater: Yes.
Senator Baker: You had a Masters of Law prior to that?
Ms. Palmater: Yes, on Aboriginal and treaty rights.
Senator Baker: Did you ever work for the Department of Justice?
Ms. Palmater: Yes, I have, and Indian Affairs.
Senator Baker: You have summarized very well all of the testimony that I have heard during these hearings. Your specific recommendations on amendments will be gone over very carefully by members of the committee and by the House of Commons, because they will read this testimony that you have given here today. The House of Commons committee will have to deal with this bill, if in fact it passes the Senate.
Senator Jaffer: I also would like to thank all three of you. It has been a long day and you have sat through this. You certainly have touched us.
If I may, my first question is to you, Ms. Meawasige. As an elder coming here, you have probably seen more than any of us in this room have seen. You have told us what you think should happen, and the one thing you stressed was customs and how important it is that we follow custom. You have said this in your presentation, but I am asking you again: What do you think is the most important thing that one needs to continue preserving for Aboriginal people when it comes to customs?
Ms. Meawasige: The upmost is our children. It is a very heavy duty because of what we have already gone through in different areas. In my life, children were taken from their homes without parental consent, and our people went through very difficult times. There were very difficult times in those days. Luckily, I had a positive move where I had my schooling, and you have heard of the 60's school boss who caused a lot of grief to our people. I hear our people also about the MRP. Many of our elders are asking why they are bothering us now. We have always known what we need to do. We know how to generate our own leadership and our customs. We know how to raise our children. Why do they keep coming at us and telling us what to do and how we should do it? We know how to do these things already. Our elders talk about that.
There is a lot of contention with the elders when these new bills come in. Many of them do not understand the full meaning. They only know parts of it. They do not fully understand how the government works and how the legislation moves and whatnot. They do not understand that because they were not raised to think of being what I call dictated to. That has always been my feeling. Why do we need to be dictated to? We know what to do. We know how to live. It has been passed down from generation to generation to us to know what to do.
Senator Jaffer: I am the critic of this bill. That means I must look at it and determine what recommendations to make from the opposition side. The general comment that really struck me is the women saying that when you take the children away from the reserves the reserves go silent. You certainly have reinforced that.
I have a question for Chief Shining Turtle and Dr. Palmater. We heard your passion. This is the last of our hearings, and I am sure that all of my colleagues here will have all three of your words in mind when we look at this bill.
You may have been in the room earlier when I said that I was part of the original group that suggested the need to look at the situation of women on reserves. I did so with good intentions, but now I am not so sure anymore. Anyway, that is another day's topic.
When preparing for this, the one thing I kept thinking about is that we are trying to raise the expectations of women but the best we will do is 90 days of occupancy and cause havoc with regard to the rights of people. You have given us many messages, but can you tell us in a few words about the harm this bill will do if it becomes law?
Mr. Shining Turtle: You will disenfranchise communities. You will pit member against member, and that does not happen in my community. It does not happen with the island communities that I represent. We are not social societies like your norm. You are individual by nature. Wherever you come from in your world, I do not know where that is, however you got here, you are very individual. We are collective by nature. I yield to the elder. If I do not do that, I get it when I get home. The women advise me on what to do in the community, not the men. I have a council of elderly women who advise chiefs all the time.
Ms. Palmater: I think that is a really important question because it goes to the heart of all of these bills, all of our policies, programs between the government and First Nations people.
If I could only pick one sentence to describe it, in a really polite way, I would say that Bill S-4 offers an empty shell of a legislative promise. It is promising we will combat violence in Aboriginal communities; we will protect the rights of Aboriginal women; we will respect gender equality; we will now have housing, when in fact this bill does nothing to address housing. This bill does nothing to address violence against Aboriginal women any more or any less than the provincial court system. This bill is geared just as much towards non-Aboriginal people as it is Aboriginal people. There is no focus in this bill on Aboriginal women, nor should there be because, as every single witness has testified, we are from collectives of which Aboriginal women are an intrinsic and important part, not separate from the community. So long as you treat them as they are somehow separate from the community with separate rights, you will pit community member against community member, and, I would also add, non-Aboriginal people within communities. The more they start occupying reserve lands, whether it be in fee simple under other legislation or this bill, you will start pitting people against people in communities that are already small. You are asking less than 5 per cent of the population to share what they have left with the other 95 per cent of the population.
Contrary to what the minister says, that this is about bringing Aboriginal people in to Canada's prosperity, no, it is not. There is no money for people to access courts or lawyers. How will that benefit Aboriginal women? There are not even courts in remote communities. Therefore, these are all empty promises.
Mr. Shining Turtle: May I comment on the infrastructure component?
The Chair: Of course.
Mr. Shining Turtle: I sit on the regional investment management board for Ontario region for capital, and there is a serious lack of adequate capital in Ontario, contrary to what this government will tell you.
I sit on those committees and we watch the horrifying circumstances that we have 100 million to manage in Ontario, you have 133 First Nations spread from the most remote part of Ontario to the most southerly part of Ontario, and it is absolutely devastating. In my community we get $250,000 for infrastructure. That is what we get every year, an annualized payment comes out, and here is $250,000. Go ahead, chief, build houses, do electrification, do septic systems in your community, add a water system and build some community roads. Who is dreaming here?
Oh, yeah, by the way, you have to do housing. Do you know how much it costs to build a house on an Indian reserve right now in my area? Did anybody even ask that question here? I know the number. It is $155,000 to build a three-bedroom bungalow with a basement. Why? It is because I mortgage those.
There is no resource from the federal government, and those purporting to say there is enough resources there are dreaming. I have lived with this for eight years. I have studied it. It is my background in engineering, and I will challenge anybody to meet me at the door on those numbers. I have the proof and the verification. I was a tribal engineer in remote communities. I have watched the horror of what has happened to our people. There are no heating systems.
You put families in these units that are not even theirs. Then, you watch a disruption. If I put you in an ant trap, you will have a family problem. If I squeeze your family into 500 square feet, there will be social turmoil. The government is aimed at matrimonial real property but there is a deeper flaw. I have watched this happen. We have changed our system in our community. That is because I am a civil engineer and I am trained that way. We do not take no for an answer when we walk to every government door when they get slammed in your face. This is a fundamental problem that goes right to the social fabric. You have to take the house and understand it as a social framework. When you minimize that, you create chaos in families that is not of their doing. You cannot get away from each other when you live in 600 to 700 square feet. Give it a try some time. Put three or four people in that house and watch the chaos and division that happens.
Senator Mitchell: These have been very compelling presentations. I would like to pursue Dr. Palmater's point about this bill doing nothing about a number of things, including violence against women. My fear is that the government could spin this by saying that the reason they are doing this is to solve the problem of violence against women. They pick some value that cannot be assailed, apply it to whatever they want and hope that people will not make the link if they yell it loud enough and often enough. I think that is exactly what they are doing here.
Two questions: First, how could this bill possibly reduce violence against women? The violence occurs before the family splits up, which is when this bill would kick in. I do not see how it would prevent violence against women.
Second, have you seen any analysis from the federal government on how this bill would reduce violence against women? Have they given you statistics on how often families break up, who loses out on the home and where they would go if there are no shelters, et cetera?
Third, what are the three or four things, or maybe more, that we need to do on First Nations to reduce violence against women? I am not just picking on First Nations because we have lots of problems with respect to violence against women.
While we are at it, if we cannot amend it, would you say that we should defeat it?
Mr. Shining Turtle: On the last one, defeat it; it is simple. You have to defeat the bill. You do not know us. I do not know you and I will not write a law for you. I will not do that. My sense of humanity tells me that.
I will tell you a story that you need to hear. I am a civil engineer, and I am the chief of my band. In 1970, I watched my mother get murdered. I was 6 years old. My father fought in World War II for this country, and they never reconciled the job he was given as a trooper. That is real.
I know about violence. I lived it. How did I get to be where I am at, you might ask? I should be a complete and utter failure, should I not? But I am not, because of grandma. We have extended families. My grandparents picked up all nine of us and packed us into their house and said, "You will get an education, son." They never took away my dream. That is the reality. Why do you want to take that away from our communities? Yes, we have our struggles but they are ours. I deal with them every day as a chief. I sit through difficult circumstances of families trying not to reconcile. You know what? I do not lose hope. I do not throw the baby out with the bathwater. I believe in our grandparents, our uncles and our lateral family system. If I did not believe, I would not be here. My entire community put me under their wings and they nurtured a chief. Everything that I am today I owe to my community, despite tragedy.
Our answer is that our families know what mistakes we have made. Our laundry does not have to be aired here or anywhere else. You know what your systems and societies are. Your law books are full of them. We do not introduce laws for you. We have answers, and those answers lie in the ability of our communal system to work, and it does work, as fractured as it is by government policy. I will offer that by way of response. I hope that rebuts.
Senator Mitchell: That was very powerful.
Ms. Palmater: Those are good questions. Does this bill reduce violence? Of course not. It provides remedies after the fact that the majority of Aboriginal women cannot access because of lack of courts. They cannot afford lawyers. I have my doctorate. I am a lawyer. I have a very good job, but I did not have the money to take my ex-husband to court for child support arrears. I am in a far superior position to most of my large extended family or those that live on reserve. Imagine: You have all these remedies, but you cannot access them.
The federal government could easily have said that they are concerned about violence against Aboriginal women and would increase housing on reserve so there would be no fight over the matrimonial home. They could have said that they would increase funding to CMHC for Aboriginal housing off reserve, not just shelters but real housing so that the man or the woman can leave. Many Aboriginal men get kicked out of their homes, too. Maybe rightfully so, but we still have to provide for them. I say that in jest, of course.
You have to put the challenge: Is this bill about protecting Aboriginal women from violence? If it is, then there are a hundred things you could do, such as housing, early childhood education, funding for native child and family services, funding for post-secondary education, training programs, et cetera. If the government truly wants strong, independent First Nations who practice good governance and are self-sufficient, then they need to put their money where their mouth is. Give the funds to support them so they can build capacity in all these key areas. Every single one of them wants to do that and, to different degrees across the country, they have attempted to do so. Some are very successful, but some are not successful.
If you cannot amend this bill as it stands, then yes, definitely reject it. For Bill C-3, they rejected all amendments that were wholly supported by the opposition and all Aboriginal witnesses. If those are the only choices, I would say reject it, for sure.
Senator Brazeau: Chief Shining Turtle, you should be commended for being progressive in your community and developing your own code. You mentioned that currently this code is basically garbage because it is not recognized. If this legislation were to pass, it would enable your community to have your code recognized and adopted so that you could implement it in your own community. Would that not be a good thing?
Mr. Shining Turtle: I do not know what you are trying to spin here but, if I read the rules correctly, I do not pass any of the thresholds of the rules. We follow the process in the community that is developed by the community. I did not have a verification officer come in. I am a pretty intelligent human being, Mr. Brazeau. I do not need someone to verify my council meetings and to verify that we have developed laws. I do not know how that is a good thing. I do not need more paternalistic views. I do not notify the provincial attorney general's office. We use our law now, in an example that we just applied last month. Our law is based on the child: Whoever has care and control of the children gets the home. I do not need the courts and I do not need a verification officer to tell me that. We are already doing a good thing. We keep our families intact. Grandma just spoke on that matter.
Senator Brazeau: I am not disputing that whatsoever, but if your community exercises matrimonial real property, as you have just described, should you not be out there championing and sharing with other communities what you are currently doing so that people could potentially adopt a similar model?
Mr. Shining Turtle: Congratulations. We have done that already. We shared our matrimonial real property with 40 other communities. I applaud that. We have already done that. I said in my presentation that two communities provided insight into this law that was passed by the Anishinabek Nation. We have done all that work. I appreciate your recitals in that area. How else can I help you?
Senator Brazeau: I am also glad you are here to comment on the draft bill that you mentioned from the onset that you did not have an opportunity to do.
Mr. Shining Turtle: I saw it come into my office. I am a pretty intelligent guy. I check my mail regularly.
Senator Brazeau: Dr. Palmater, you mentioned that this bill was, and I do not want to put words in your mouth, potentially illegal because there was a lack of consultation, in your view. I mentioned earlier that many women's groups have been calling for a matrimonial property regime because none exists on reserve. NWAC went to the United Nations and asked for same.
If you look at, for example, the specific claims legislation that was conducted by the Government of Canada and the Assembly of First Nations, obviously they did not consult with every First Nations community across the country, but that bill passed. Using your logic, would you say that perhaps the specific claims legislation is not legal because there was not consultation with all 600 communities? Is that what you are saying with respect to this bill?
Ms. Palmater: I appreciate your question. I was not consulted on the specific claims legislation, unfortunately, nor were the majority of the people that belonged to my community. I am certainly not prepared to speak to specific claims, but I can speak to the rest of your question. It certainly is an illegal act if it goes ahead without consultation, no question, because of the fundamental, constitutional nature of reserve lands.
More than that, I want to follow up on your comment that Aboriginal women have asked for intervention in MRP. No one can dispute that. I have read those UN transcripts as well. However, not a single one of those Aboriginal women organizations or individuals or anyone who has appeared here has said, "We want MRP legislation without consulting with us first, without consulting with our First Nations, and that violate our Aboriginal and treaty rights and our constitutional rights." Not a single one of them have said that.
When you look at the issue about whether or not Aboriginal people want MRP, it is a no-brainer, of course they do, but they want the capacity to develop it themselves. If there is interim legislation, you do it with consultation and you respect the constitutional nature of the lands.
Senator Brazeau: Here is the problem I have with grasping a bit of what you said. Earlier, we heard a lot of talk about lack of capacity with socio-economic problems, but I feel we are moving away from the true intent of this bill. No one said it was to protect Aboriginal women against violence. I think that is secondary, because the violence will usually occur before any division of matrimonial property. However, there are instances currently where women, because they have nowhere to go, try to go back to the home and the violence continues. That is currently happening in some communities.
Having said that, what do you tell the Aboriginal women across the country today who are affected by the fact that there is a legislative gap in the division of matrimonial property? That is what this is really about. It is women being treated equitably in the division of property. What do you tell those women today, while they are being affected by this, while they are losing their homes, while they have to move out with their children? Do you say, "Well, there was not enough consultation?" No one said the bill was perfect, but at least it is a start, and it is something that many Aboriginal women have wanted. What do you tell those women today?
Ms. Palmater: Just to respond to your important question, no one is asking for a perfect bill. We are asking for a legal bill that respects Aboriginal and treaty rights and constitutional rights, which includes those Aboriginal women's rights. There are just as many Aboriginal women who have resolved their matrimonial real property issues informally on reserve, according to traditions and customs, as you heard here, at Millbrook. Anyone can highlight individual circumstances. I know many non-Aboriginal people who have been kicked out of their homes.
Senator Brazeau: But what do you tell the Aboriginal women who are affected? If First Nation communities have a regime that they exercise and women's rights are protected, great. I think that should be highlighted, respected and applauded. What do you tell those women in those communities where there are no regimes, no protections and no equitable distribution of matrimonial real property?
Ms. Palmater: That is the fundamental basis of the submission I have made. That is exactly what we are all working towards. It is no different than with the Canadian Human Rights Act. Those rights were fundamental — to not be discriminated against by a band councillor, for example. However, we have to keep in mind that the rights we are protecting for Aboriginal women in Aboriginal communities are one and the same. Just as there was a three-year transitional period for the Canadian Human Rights Act, there is no valid reason why there could not be a three-year transitional period for Bill S-4, even if it did go through.
We will not prevent marriage breakdowns. They have been happening for hundreds of years, and they will continue to happen. What I would tell those women is, instead of blaming your chief and council, why not look at Canada? They are the ones who enacted the Indian Act. They are the ones who have been dragging their feet dealing with all of the equality issues specifically for Aboriginal women, like on Bill C-3. Had Canada consulted in the first place, none of us would be here to have this conversation. That goes to show how important consultation is. It is not that we do not want MRP. We want everyone in our communities to be protected, but we want to make sure that our Aboriginal and treaty rights and our lands are there in three generations for those women's grandkids.
Ms. Meawasige: Just to respond to your comments, we do honour our own, and most disputes are family-related and resolved by family and other elders of the community, if needed. That is how our families have always resolved a problem. Therefore, it would not be a problem to resolve the MRP. We do not call it MRP. The elders that are there respect the care of the home and the children, because we have always looked after our own, and we still do, no matter what. If other elders are needed to support the families, they are always there.
Ms. Palmater: The minister testified here that the choice is between women being thrown out in the middle of the night or respecting Aboriginal self-government and land rights. I think so long as we categorize it that way, what will we choose? I do not know what to choose. You are setting up this fictional choice, when in actual fact there is tonnes of middle ground. Many of the witnesses have said that maybe Bill S-4 can go ahead, but you have to consult and amend it and incorporate these things and give First Nations an opportunity to build their own laws so they do not have to have Bill S-4 if they do not want to. There is tonnes of middle ground. It is not a choice between throwing out women or respecting governments. You can do both.
The Chair: You should run for office.
Senator Dyck: Thank you to all our witnesses for your wonderful presentations. I do not know if you are aware of the report in 2006 from the National Aboriginal Committee against Family Violence. They had a report entitled "Aboriginal Women and Family Violence", and they were interviewing abused women who had to leave the family home on reserves. The recommendations that these women came up with were very interesting. They said, "Support First Nations sovereignty with little provincial or federal law." They said, "Develop sentencing circles and restorative justice to bring responsibility to the community." They were not saying, "Develop a federal law." These are the women we are talking about. I guess my question to you would be, what do you think of that?
Ms. Palmater: That is exactly what we witnesses are saying: Do not look at Aboriginal women outside of their communities. They are within those communities, and they are asking for these very things. When you say that this is what Aboriginal women want, I say, "Show me those Aboriginal women." Every single one has said, yes, we want protections, but it must be within the context of our sovereignty and recognition of First Nations jurisdiction. I do not think anyone has said otherwise.
Mr. Shining Turtle: It is basically building a family unit and supporting the family unit. No one has told me any differently on this, despite the difficulties we run into, and I run into them every day. It is built on a system of respect. We are building a capacity to allow the First Nation membership to iron those problems out. There are arguments every day in the community. Name a community that does not have those. Suddenly, there are problems — oh, we have to go deal with this? We find solutions every day. In 1970, they found the solution for me and my family, all nine of us. Guess what? I do that every day as part of my work. I find solutions in my community, and they are lateral, next door communities. We have people coming in; elders come and talk to us. There are all kinds of interim measures. There is great capacity there by the First Nations to want to make a solution and own it. That is all they are saying.
Senator Nancy Ruth: I wanted to make a statement. Senator Mitchell has said that this bill was about ending violence against women. It is not about ending violence against women. There may well be other bills coming that will address other issues of violence, but this is a bill about matrimonial real property.
The Chair: Thank you, Senator Nancy Ruth. It is reaching seven o'clock. We can stay here longer. I could talk to you for hours.
Ms. Meawasige: I just wanted to bring out Chief Shining Turtle's little story about losing his mother and about his father. That is just an indication of how we relate to our families with our children. Our children have always been picked up by family and elders in the family for their wisdom. We did not have CAS, as far as I knew. Even when I was a child, we never heard of CAS. It is more in recent years, way back in the 1960s.
Senator Nancy Ruth: What is CAS?
Mr. Shining Turtle: It is the Children's Aid Society.
Ms. Meawasige: That is when they talk about that 1960s group. We heard more about Children's Aid. Our families were always in fear that Children's Aid will get us and whatnot. As Chief Shining Turtle said, our families picked up and raised the children, no matter what.
The Chair: Thank you so much. I appreciate your excellent presentations, as I am sure does everyone, especially my colleagues. Thank you for sharing your views, knowledge and wisdom on these issues, of this one today and others relating to Aboriginal people. You are very admirable individuals.
Emma, a special thank you to you for coming and making the effort to talk to us today. I had a grandmother like you, and it does make all the difference in life to have the support systems of family, grandparents, aunts and uncles. I come from Manitoba; I grew up in Gimli by Lake Winnipeg, and I know exactly what you are talking about in terms of your people and how you looked after your families. It is great to hear from you and your generation.
Thank you, Chief Shining Turtle, and Dr. Palmater, you are a force.
I would like senators to stay for a moment to talk about Wednesday.
Senator Jaffer: They say there are regulations in place. They went on about this great centre. They do not have a budget; they were not consulted. Look at this briefing note that the government has sent. It is not acceptable how they are treating all of us here. I want you all to agree that the chair writes to them and says: Look, prepare better notes for us. The case studies they have done have given me a heart attack. In one of the case studies, what these people were saying is a person has no rights on the interest, a non-member, and through this act she will have rights on the reserve. That is what this bill will do. This is a serious bill. As a group, we need to look at it and at the notes that the government or the department has sent. They are really bad notes. They have to do a better job.
The Chair: Thank you. I ask the clerk to make note of that, for us to deal with that matter. I should say before carrying on that INAC officials cannot withdraw legislation. It requires a minister and a cabinet to do that.
Senators, I will propose we meet at noon on Wednesday to do clause-by-clause consideration.
Senator Jaffer: Subject to the outcome after you or whomever speaks to the minister, because if he intends to withdraw the bill, then we do not need to do clause by clause. I know I am a dreamer, but I keep dreaming.
The Chair: I will let you know if he withdraws it. In the meantime, we will schedule the meeting for noon on Wednesday. We will let you know exactly where it will be.
With respect to the other business on our reports, everything is in progress and moving along well. If we get the bill done — unless it is withdrawn, of course — I do not know about that.
Senator Jaffer: No, I know that. I am dreaming.
The Chair: I cannot say anything about that.
We would probably not have to meet next week, but you will be advised about that as well.
The Chair: Are there any other comments? Otherwise, the meeting is adjourned.
(The committee adjourned.)