Proceedings of the Standing Senate Committee on
Human Rights
Issue 4 - Evidence - June 9, 2010
OTTAWA, Wednesday, June 9, 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 12:05 p.m. to give clause-by-clause consideration to the bill.
Senator Janis G. Johnson (Chair) in the chair.
[English]
The Chair: We will now resume our study of Bill S-4 and begin with the officials, Ms. Paré and Mr. Jacques, with regard to the amendments. Then we will go to clause-by-clause.
Line Paré, Director General, External Relations and Gender Issues Branch, Indian and Northern Affairs Canada: This is my first time participating in clause-by-clause. I am really pleased to be here with my colleague, Mr. Jacques, and we will be pleased to answer any questions during your analysis of clause-by-clause.
Senator Andreychuk: Madam Chair, I presume, there are a number of ways that we could proceed.
The Chair: We will go through the amendments the government has proposed. Do you have an alternative solution?
Senator Andreychuk: Normally, they are proposed and then spoken to individually. We all have the amendments, I trust. You are proposing, I believe, that the witnesses will speak to them, we discuss them and then move to clause-by-clause, but we are not doing clause-by-clause now.
The Chair: Yes, we are not doing clause-by-clause. Is that clear?
Ms. Paré: Okay.
Karl Jacques, Senior Counsel, Department of Justice Canada: I am not quite sure whether the amendments have been numbered, but I will refer to them by clause number and page number so we can all follow.
The first amendment is on page 4, clause 2.
The Chair: Does everyone have that? Clause 2, page 4.
Mr. Jacques: That amendment would add clause (2.1) after the current clause 2 of the bill. May I read the amendment?
The Chair: Please.
Mr. Jacques: It is as follows:
(2.1) For greater certainty, for the purposes of this Act, an agreement between spouses or common-law partners includes an agreement reached through the use of traditional dispute resolution.
There are many instances in the bill where agreements are referred to. This would clarify that agreements reached by any method, including traditional mechanisms, would be included in the wording of the bill.
That is amendment (a) on that page. Amendment (b) would simply add a reference to subsection (2.1), which has just been added, in section 3 following.
Mr. Jacques: The next one is on clause 21, page 12. It changes the opening words of clause 21(1) to read:
On ex parte application by a spouse or common-law partner, a designated judge," and the new wording added is: "of the province in which the family home is situated
This is to make it clear for the First Nations that cross provincial boundaries, the justice that has jurisdiction is the justice in which the house is situated.
The next one is clause 21, page 13. The amendment would add to paragraph (3) the words:
granted in accordance with the regulations.
This is to address who can make an application on behalf of an applicant. It would provide authority for regulations to designate who could make those applications.
Senator Nancy Ruth: So it could be a peace officer or someone else?
Mr. Jacques: Yes, a peace officer is already in here, but it would also provide guidance to the court as to what type of person; for example, a person's parent or social worker could make an application on behalf of the applicant.
Senator Andreychuk: This is just technical. You are saying "with the regulations." You do not have to say "with the regulations of this act?"
Mr. Jacques: No, we do not need to.
Senator Andreychuk: That is from the statute.
Mr. Jacques: That is from the statute. There is a power to make regulations in this act, and it is understood that it is under this act.
The next one is clause 21, still at page 13, line 34.
The Chair: Has everyone found that?
Mr. Jacques: This adds to paragraph (e), and it reads:
the period during which the applicant has habitually resided on the reserve; and
Subclause (4) deals with the considerations a judge has taken into account when making an order for emergency protection.
Ms. Paré: In the proposed legislation, there is already a list of factors, and this would add an additional consideration for the judge.
Mr. Jacques: Page 14 is the next one, still clause 21, line 42. I will read the amendment:
(6) either directly or, if authorized by the court in the province in which the designated judge has jurisdiction, by substituted service in the manner, under the circumstances and on the conditions prescribed by regulation. The peace officer shall inform the applicant as soon as
This amendment would provide sufficient authority by regulation to determine methods of service and substitute service.
Senator Nancy Ruth: A person might take off, or how do you serve something if you cannot find someone.
I would find it more helpful if Mr. Jacques would read the whole section and not just the difference, and then just say "change," and we will know to go to the change, so it is easier for me to follow it through, and I get a better understanding of the English.
Mr. Jacques: Shall I start with this clause, as it would read?
The Chair: Yes, start with clause 22, page 16.
Mr. Jacques: The new subclause would read:
A peace officer shall serve a copy of the order on the persons referred to in subsection (6), either directly or, if authorized by the court in the province in which the designated judge has jurisdiction, by substituted service in the manner, under the circumstances and on the conditions prescribed by regulation. The peace officer shall inform the applicant as soon as each service is effected.
The Chair: Next, please.
Mr. Jacques: Page 16, clause 22, line 22, this amendment would add to the wording of subclause (7):
The materials referred to in subsection (1) shall be considered as evidence at the rehearing, in addition to any evidence presented at the rehearing.
The new wording would add:
. . . rehearing, including evidence on the collective interests of the First Nation members, on whose reserve the family home is situated, in their reserve lands . . .
Senator Nancy Ruth: Am I correct in understanding that the reason for this amendment is the issue raised in our hearings around collective interests? If it is an emergency order, it might have been an emergency order, whereas when we are dealing here with rehearings, then the band would have a chance to make its points about the collectivity of the land. Is that the purpose of including this measure?
Ms. Paré: Yes.
Mr. Jacques: Currently, under the protection of — or the ex-parte order — only the applicant would be heard. The First Nation would receive notice of the rehearing, so it could make those representations at that point.
The Chair: Clause 23 is next.
Mr. Jacques: On page 17, line 11, this amendment would add to subclause (3), under "Evidence at hearing:"
The supporting materials for the order made by the designated judge shall be considered as evidence at the hearing, in addition to any evidence presented at the hearing.
The new wording is: "including evidence on the collective interests of the First Nation members, on whose reserve the family home is situated, in their reserve lands."
This is the same change as the previous one.
The Chair: Clause 25 is next.
Mr. Jacques: On page 18, line 23, subparagraph (c) would be amended and would now read:
the collective interests of First Nation members in their reserve lands and the representations made by the council of the of the First Nation on whose reserve the family home is situated with respect to the cultural, social and legal context that pertains to the application;
The amendment adds the opening words, "the collective interests of First Nation members in their reserve lands."
The next amendment on that page would add to paragraph (c):
the period during which the applicant has habitually resided on the reserve;
The third one replaces lines 32 and 33 in paragraph (e) with:
the availability of other suitable accommodation that is situated on the reserve;
The words "same as the family home" have been deleted. These are grammatical changes that refer back to previous changes.
The Chair: Clause 26.
Mr. Jacques: On page 21, paragraph (d) would be amended by adding new words at the beginning, which would read:
the collective interests of First Nation members in their reserve lands and
The rest of the paragraph would still be the same:
the representations made by the council of the First Nation on whose reserve the family home is situated with respect to the cultural, social and legal context that pertains to the application;
At clause 31 on page 23, line 29, the proposal is to add a reference to "survivor" in the paragraph. Clause 31 would now read:
When an order made under any of sections 21 to 23, 25 or 26 grants exclusive occupation of the family home to a spouse or common-law partner or survivor who is not a lessee under the lease for the family home, the spouse, common-law partner or survivor is bound by the lease during the period of the order.
There would be a new clause on page 40. After clause 50 it is proposed to add clause 50.1, which would read:
(1) An order made under this Act or in a divorce proceeding as defined in subsection 2 (1) of the Divorce Act is deemed, for the purposes of section 21 of that Act, to be an order made under that Act.
The proposal is also to add subparagraph 2, which would read:
Any other order made under this Act, except under any of sections 21 to 24, may be appealed to the court exercising appellate jurisdiction over the court that made the order.
The objective is, where an order has been made in a divorce proceeding, it could be appealed under the Divorce Act because it would all be under the same instance. Paragraph 2 would give right of appeal to the court that would have jurisdiction to hear appeals in the province.
In clause 57 on page 43 at line 6 the proposal is to add some wording at the end of the paragraph, which would read:
The Governor-in-Council may make regulations that the Governor-in-Council considers necessary for carrying out the purposes and provisions of this Act, including regulations making rules that are applicable to any proceedings under this Act and prescribing anything that by this Act is to be prescribed.
This would capture any instances in the act where the word "prescribed" is used. It would simply tie it back to the regulation making authority.
The Chair: Thank you, Mr. Jacques. Are there any further questions before we go to clause-by-clause consideration?
Senator Mitchell: Chair, if we had other amendments, would now be the time to present them?
The Chair: Yes.
Senator Mitchell: Excellent.
I will get copies.
The Chair: Can we proceed to clause-by-clause consideration and then have copies of your amendments and review them?
Senator Mitchell: If it does not prejudice what we are doing, I do not mind, but a member has presented amendments and we have not presented ours. We have had no time to look at these amendments, which makes me very uneasy. The most I will do is abstain from voting on them, because we have no way of analyzing them or knowing their implications.
In addition, I cannot say what their implications will be for our amendments. It is problematic for us. Our amendments will address some gaps that we see. For example, we received a very clear message from witnesses about the verifier for minimum turnouts in referenda. I want us to be working collaboratively.
The Chair: What is the will of the committee on this?
Senator Andreychuk: Do we have the amendments?
Senator Mitchell: We have copies.
The Chair: We will be reviewing another set of amendments, which are being distributed.
The procedure is normally to proceed clause by clause and as amendments come up they are discussed.
We will proceed with clause-by-clause consideration of Bill S-4.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Senator Nancy Ruth: I have an amendment
I move that clause 2 be amended by adding the following words after line 41 on page 4:
For greater certainty, for the purposes of this Act, an agreement between spouses or common-law partners includes an agreement reached through the use of traditional dispute resolution.
This is line 41 and line 44.
The Chair: Honourable senators, is it agreed to adopt the motion?
Some Hon. Senators: Agreed.
Senator Nancy Ruth: I wish to have a word with Senator Jaffer. Most of these amendments relate to the land, being communities.
Senator Jaffer: Yes.
Senator Mitchell: Have we voted? I have a question. It does say "through the use of traditional dispute resolution." It does not specify with a consideration or particular view of or adherence to collective rights. There is traditional dispute resolution and there is mediation, all grounded in Aboriginal communities in collective rights. I am not sure that actually does it, but I am sure that this is rushed and disconcerting.
Senator Andreychuk: This amendment is not just confined community rights. It is to embody all traditional conflict resolution, which goes beyond. At least, that is my reading. We are accepting traditional dispute resolution as it affects a breakup, so it goes beyond just community rights. It is whatever that reserve or that tribe or that band of Aboriginal peoples utilized. They would be afforded this if it is already being used in their community.
Senator Dyck: So it would be seen as legitimate?
Senator Andreychuk: Yes.
Senator Dyck: Without having to undergo the process outlined in the bill?
Senator Nancy Ruth: Sorry, say that again?
Senator Dyck: Without having to undergo the process outlined in the bill?
Senator Nancy Ruth: You mean the verification process?
Senator Dyck: Yes.
Senator Nancy Ruth: No, because that was raised in testimony on Monday.
Senator Andreychuk: That is a different issue.
Senator Mitchell: Who would determine what traditional disputes resolution processes are? The courts?
Senator Andreychuk: They do.
Senator Mitchell: But they will have to present this to a court, will they not?
Senator Andreychuk: Yes.
Senator Mitchell: The court will have to the final rule.
Senator Jaffer: This is all criminal.
Senator Andreychuk: Maybe I am using a bad example, but I mean they come in and say, "We have used these processes, and they are helpful for justice."
Senator Nancy Ruth: Could we ask the staff to clarify?
The Chair: Do you have any clarification to add other than what you gave us before?
Ms. Paré: Yes. Traditional dispute resolution and alternative dispute resolution processes that exist right now in communities across Canada continue. Bill S-4 will not change that at all. At the same time, First Nations could, under Bill S-4, decide to incorporate their traditional dispute mechanism into their own laws. The amendment proposes to provide more certainty with respect to agreement, but agreements include what they have right now in the communities with respect to elder counsel, alternative dispute resolution and traditional dispute resolutions.
Senator Jaffer: I have a procedural question, and I am not trying to hold this up. There are many, many amendments. We need to look at them carefully. This applies to my amendments, not just the government's amendments. I need clarification. Procedurally, is it correct to amend a bill by removing a clause? Is the appropriate procedure to accomplish that to defeat the clause?
The Chair: Yes, you defeat it.
Senator Jaffer: You have to defeat the clause?
The Chair: Yes, you do. I am asking honourable senators if they adopt the motion or not. Shall clause 2 carry, as amended?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 3 carry?
Senator Jaffer: We will not be able to move this fast. I sincerely apologize. We are just seeing this for the first time. We cannot just say "carried, carried," or we could just say "no" to everything. I do not want to do that, because some of this is good stuff, but we have just seen it.
The Chair: We had a briefing about it all before you came.
Senator Mitchell: I was there. We all appreciate what was done, but it is very quick, and it does not give us a chance to really consider the implications. Certainly other members of the committee have seen these amendments, because they wrote them or were involved in writing them. I have a real problem with this process. This is not right.
Senator Jaffer: This is very important. There is no rush. We can do clause-by-clause next week at our regular meeting, which will give us time to review the amendments. I have looked at some of the stuff. That is why I was late. It was my error. I should have come earlier. I did not realize the witnesses would be heard right away. We may agree to it, but we need to sit and look at it. We just cannot rush this, Madam Chair. Perhaps we should meet at our normal time on Monday and go through this carefully.
The Chair: What is the will of the committee?
Senator Andreychuk: To proceed.
Senator Kochhar: To proceed.
Senator Andreychuk: To proceed without a rush.
Senator Nancy Ruth: It is too fast. This is very technical and difficult. I had an hour and a half of it this morning, and I am still struggling with it. It is not fair.
Senator Jaffer: It is not proper. "Proper" may not be the right word.
The Chair: What does the sponsor of the bill say?
Senator Nancy Ruth: I say we proceed but do it carefully, and we should reserve some time to talk about verification.
The Chair: Do you wish to proceed on Monday, or continue now and proceed on Monday as well?
Senator Nancy Ruth: Yes, we could do that.
The Chair: Does that satisfy members of the committee?
Senator Mitchell: The decision is being made for us. I appreciate the predicament that you are in, chair. I know how important it is for committees to work with consensus. None of us like to be divided on matters like that.
However, this is how you make huge errors. We have no idea, and no one has any idea. The sponsor has had an hour and a half to look at these amendments. These are serious changes to a bill that many of us believe is flawed to begin with, and we cannot go through this in an hour and a half. We need time to think about it. I am not trying to delay it for the sake of delaying it. It is likely that I will in fact oppose this bill, but I feel this is not right. It is disconcerting to me. I do not think it is too much to ask. I will come back Sunday night for Monday morning.
Senator Andreychuk: The problem is you cancelled the Monday meeting.
The Chair: No the meeting was never cancelled. It was based on what happens today. That was the meeting.
Senator Andreychuk: Okay.
Senator Kochhar: Why do we not proceed and finish as much as we can?
The Chair: Yes, that is what I suggested, senator, and if we do not finish it, we have a slot on Monday at 4 o'clock. I think that is the will of the committee and also the will of the government.
Senator Jaffer: What time do we have to adjourn?
The Chair: We should adjourn at 1:15, because we have to be back in the chamber at 1:30. We have half an hour to continue, and then we will proceed to review the rest of it on Monday.
Senator Mitchell: If we have a problem with a clause or a lack of understanding and we do not want to vote on it today, could we put it over to Monday, giving us more time to think, and then vote? Would that be possible? I am not saying that will happen, but I would like to know the procedure if it did. Some of this is probably worthwhile. If it is to go through, it might go through with some good changes, but we have a responsibility to make sure it is not done precipitously.
The Chair: We can always defer clauses where there are amendments and review the rest as we proceed. Why do we not do that?
Senator Mitchell: Excellent.
Senator Nancy Ruth: Do what is easy first.
The Chair: We will do what we can with the bill now. The amendments where people need time to think and comment will be deferred to Monday. In the meantime, let us carry on.
Do we wish to defer Clause 2? It was already agreed, so that is the end of clause 2.
Senator Jaffer: It was just 2.1.
Senator Nancy Ruth: It is clause 2 (a) and (b).
The Chair: Yes.
Shall clause 3 carry?
Hon. Senators: Agreed.
Senator Nancy Ruth: Will you give us a list of the numbers so we will know?
The Chair: It is right there, Senator Nancy Ruth. Their's is further on.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Senator Mitchell: Clause 7, we have an issue with.
The Chair: The first on your page here is clause 8.
Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: We will defer clause 8, or do you wish to speak to it now?
Senator Mitchell: We do not need to defer. We would like to defeat it; we know that definitively. That is our amendment. We are pretty determined on clauses 8, 9 and 10.
Senator Andreychuk: All relate to verification.
Senator Mitchell: It is all verification. Anyone could speak to the reason for it, but since I am already speaking, I will keep going.
One of the weaknesses in this bill, which was established over and over again from the witnesses, was that it is very paternalistic and condescending. It is really the imposition of one culture, ours, on another culture that is based upon a completely different view of rights — collective versus individual.
Compounding that is this idea that we will impose a verifier on First Nations who have the right and power to make their own laws in this regard and many others, when we would not think about requiring that municipalities across Canada would need to have a referendum on every law or some law that the Government of Canada passed. It is so completely and utterly prejudicial against First Nations; it is condescending. It cuts the knees out from under them figuratively, and I think it is unacceptable. It is not necessary, either, that that should occur.
That is why we would like to defeat these clauses. It would not really alter at all what the bill is supposed to achieve. It would simply extract one of the more obnoxious elements.
Senator Dyck: It is like an Indian agent.
Senator Mitchell: Yes, it is. It is gratuitous. It does not need to be done.
The Chair: We will take a vote on this, please — to amend clause 8 by removing it.
Shall clause 8 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
Senator Brazeau: Yes, absolutely.
The Chair: It is carried.
Senator Mitchell: No, absolutely, just to make a complaint.
The Chair: Shall clause 9 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: It is carried.
Shall clause 10 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: It is carried.
Shall clause 11 carry?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
Senator Mitchell: Can we talk about that? I would like to address that because I am sure that once we make the case, the other members of the committee would have to agree with us because it is so obvious.
Senator Brazeau: For the proposed changes, can we wait until Monday?
The Chair: No.
Senator Mitchell: If you want to defer it to Monday, that is fine. We could certainly defer it to Monday if you wanted to have another look at it. You seem pretty determined about it.
The Chair: No, please carry on Senator Mitchell.
Senator Mitchell: My point is that this underlines the paternalism of this bill. No other community has to have a referendum to determine whether or not it accepts some kind of federal law, nor should these communities, therefore, be subjected to that. It is not fair. It is condescending and paternalistic, and it compounds many of the problems that I believe we have made in the way that we have dealt with Aboriginal nations and peoples in this country for many years.
It is so easy to change this. We do not need it. They will have trouble getting 25 per cent turnout; we have trouble getting 25 per cent turnout elsewhere in the country often as well, to which extent it becomes punitive to them.
It is almost as though the government does not expect — and there are other reasons why I say this — or want, particularly, Aboriginal nations to come up with their own laws, because they will not be able to do so.
Senator Jaffer: This one really bothers me. I agree with everything that Senator Mitchell has said. If you listened to the witnesses, and from what little I know about Aboriginal people — and I am probably most ignorant — that is not the process for decision making on reserves. It is done on a consensus basis.
We are adding an area where it is divisive. How is that respectful of people who tend to make their decisions in a consensus way? How can we impose this?
Further to what Senator Mitchell said, we do not get 25 per cent of people coming out in our processes. Why would we impose that condition? It is very difficult to say "we" and "them," but it is the federal government that is imposing this measure. I do not think this is the process that Aboriginal people follow, and we should not impose a process that they do not follow.
Senator Nancy Ruth: I would like to respond to this but I would also like to hear from the department people.
There is probably a grain of truth in most people's comments for sure. I will tell you what I think about the verification process. I have had handed out to you comments made by various women's groups, including Mary Eberts. There are three pages that we recently put together so we would hear what some of the women have said over the years.
My understanding is that the verification officer has been at the request of women's groups. I was late coming up here because I was talking to Celeste Mackay of NWAC about the verification officer. Yes, it is a problem. In testimony, it has been a problem.
Celeste Mackay could not speak for her community. I can only say that I was in discussion with her. However, she was unaware that the verification officer was someone who would be appointed between the centres of excellence and the bands — that INAC is not involved in picking the verification officer. She was not aware that the verification officer dealt only with the process of the vote, not the content of what the vote was about.
We talked about that if there was some notation or something we could add in — maybe at the end of the bill or something — about the verification officer to clarify this process, it would be of help. However, my understanding is that it is the women who have asked because women do not control all the band councils in Canada. There is some concern that they will not have a fair shake. Therefore, this voting process was a way to ensure some fairness for them. Do you have other information?
Senator Jaffer: I was also speaking to someone — I am not free to say to whom.
Senator, I do not challenge what you have said. The challenge is that we did not get that testimony from the women. Today we are relying — which is making me uncomfortable, as I am sure it is making you uncomfortable — on a way, again, to say that this is good for the women. Not one woman — and I could be corrected — said that to us in the testimony, and we had a lot of women come before us.
One woman representing an organization of women's organizations said to us about the verification officer that it was a good thing. That is why I have the challenge. We have passed that and that is gone; but in the voting process, I have great difficulty because women representing women's organizations did not say that.
Senator Nancy Ruth: I do not disagree with you. It is also of concern to me in that after my conversation with Celeste Mackay, who is so distinguished in the field of human rights, I wondered if she had read the bill around verification. These things are stated in the bill. Am I not correct?
Ms. Paré: Yes, it is stated in the bill.
Senator Nancy Ruth: It seemed like it was news in the discussion that I had with her. That worried me. That leads me to wonder how rigorous was their analysis of the bill before they delivered their testimony.
Senator Mitchell: I appreciate what Senator Nancy Ruth is saying. It is dangerous to try to anticipate how rigorously they did or did not analyze something.
There are two things. First, yes, the verification officer is supposedly, under these clauses, simply required to determine whether the proposed process for the approval by the community of the proposed laws is in accordance with this act.
Is he a returning officer, then? If he is a returning officer, he will only be determining that 25 per cent of the eligible voters turned out. In that case, let us call him a "returning officer." I am just suspicious. If that is what they are saying all he or she has to do, then that is not much. There must be something more. I cannot imagine that that verifier will not be involved directly in determining the right or wrong proposal. I just think that is categorically wrong.
Senator Nancy Ruth: Let us hear from the department on that, then.
Senator Mitchell: The honourable senator makes an argument that is compelling up to the point that the 25 per cent of the vote is to protect women's interest, but who is to say that the 25 per cent is will comprise half women or even 1 per cent women? You and I know that often all those processes are biased against women. The likelihood that you will get a preponderance of women turning out to protect their interests in this vote certainly is not provided for in this bill and is not a condition of that vote or this bill. If it is, why do we not say, if that is the intent — and I am not suggesting this as a proposal, but I am exaggerating for emphasis — why do we not say that over half the people who vote must be women? Why do we not say that? Otherwise, you might be compounding the problem that you are trying to solve, which I expect you will.
Senator Nancy Ruth: I think that is an excellent idea, but could we hear from the department, first?
Senator Dyck: In looking at the material you handed out this morning, Senator Nancy Ruth, I do not see anything that says that these women are asking for a verification officer. We heard from the Native Women's Association of Canada, the Quebec Native Women Inc. and the women's commission of the Federation of Saskatchewan Indian Nations as witnesses, and none of them were saying that we needed a verification officer to protect women.
Also, the National Aboriginal Circle Against Family Violence report, the abused women who were forced to leave reserves said that we should support First Nations sovereignty. If you look at their report, I do not think anything in there says we need a verification officer.
The Chair: Moving on, shall clause 11 be carried?
Senator Nancy Ruth: We want to hear from the officials on the verification points.
The Chair: Fine.
Ms. Paré: If I can help, I would like to provide some clarification with respect to clauses 8 and 9.
With respect to the verification process, the verification officer would be jointly appointed by the First Nation and the centre of excellence. The purpose of the verification officer is only to observe the process of the ratification, the involvement of the community and the ratification process for the First Nation law.
With respect to the ratification process, some examples of processes are already in place that rely on a ratification or referendum process to ensure the best interests of community members, such as we see in specific claims, self-government agreements, development of land codes, First Nations taking control of their membership under section 10 of the Indian Act and developing their own election code outside of the Indian Act. In these circumstances, there are processes called "ratification" or "referendum" processes. I hope that helps with your deliberations.
Senator Brazeau: I want to add clarification as well with respect to First Nations communities making their decisions based on consensus. However nice that may sound in theory, in practice, most First Nations go by way of elections and secret ballot elections, even though they may be a custom band.
The reason this particular verification process is so important is you have over 50 per cent of First Nations communities who are custom, and they do not have to extend the vote to their members who live off reserve. That has not been addressed by either the Supreme Court of Canada, contrary to the Corbiere decision, which is the right to vote off reserve for those who are under section 74 of the Indian Act.
Potentially, without this verification process, a First Nation can develop a code without adequate and equal participation or, at least, the possibility of participation from their off-reserve members. This would be a violation of the human right to vote. This is important.
With regard to the Aboriginal women that I have to respond to and represent all across this country, one of the problems with some of our hearings is that, yes, we did not hear from women who have been affected by this, but there are reasons for that. They are shy, they are intimidated, and they are afraid to testify about the abuse that they may or may not have gone through. It is difficult to get these people to come in front of a camera — in front of Parliament — to talk about these situations, but they are out there. That is why it is so important that this verification process adds to the opportunity, at least, to have a say in how a future code might look in the development of this process.
With respect to hearings witnesses, let us not forget that many of them were leaders of political organizations, and we all know that politics has vested interests. This notion that "we make decisions by consensus," well, no, it is elections. All those chiefs who came before us and said they based their decisions on consensus are not being totally true because they are also elected by means of secret ballot. That is why in Aboriginal communities the voting system is so important. That is sometimes the only way we can voice an opinion and make our voices heard.
Senator Mitchell: It is perhaps a larger task to come and present before a committee. I will bet if you were looking for people, you could find some.
Senator Brazeau: Have you looked for any?
Senator Mitchell: I am not making your case. To say that all Aboriginal women off reserve are intimidated by the people on this committee or by that process is a condescending thing to say. I bet there are many that are very powerful. If it is the case they are intimidated by that, then I guarantee you they will also be intimidated by voting, and voting is part of the problem that we are talking about.
Second, it is one thing to vote for leaders; it is another to vote for policy. You are talking about apples and oranges, which are very different.
Those are my fundamental points in argument against what you are saying, Senator Brazeau. I simply do not believe that this voting process is necessary.
It also is true that when you say that it will bring in off-reserve Aboriginal Peoples who might have a right to vote, it does not specify that in here. It says "eligible voters."
Senator Brazeau: On or off.
Senator Mitchell: It does not say on or off where I read it. It says "eligible voters voted to approve them."
Senator Brazeau: If you look at clause 11(2):
Every person who is 18 years of age or over and a member of the First Nation, whether or not resident on a reserve of the First Nation, is eligible to vote in the community approval process.
That is why it is so important.
Senator Mitchell: Is that why you say you can do it?
Senator Brazeau: Yes.
Senator Mitchell: Will you then have them voting on all policy? Would that be the next step?
Senator Brazeau: Why not? It is a right.
Senator Mitchell: We have a right to vote for our leaders.
Senator Brazeau: We do not. In First Nation communities we do not have —
Senator Mitchell: I am talking about Canadians more broadly have a right to vote for their leader. Are you saying —
The Chair: We are getting sidetracked. Could we please hear from Senator Dyck?
Senator Mitchell: No, we are not. We are talking directly about this.
Senator Dyck: In Saskatchewan, as far as I know, all off-reserve band members are allowed to vote. We cannot make one statement that applies to all of Canada.
Senator Brazeau: That is not true, either.
Senator Dyck: What is not true?
Senator Brazeau: It is not factual that every off-reserve band member in Saskatchewan has the right to vote in band elections. That is factually untrue.
Senator Dyck: What reference are you using? We should have someone from the FSIN say that. Certainly, I, as an off-reserve member have a right to vote. As far as I know, from what I have been told, the other off-reserve members of the band in Saskatchewan also have the right to vote.
Senator Brazeau: I think it is different.
Senator Dyck: No, I certainly did not vote for you because it is not a true political organization.
The Chair: That is fine. Let us not get personal.
Senator Brazeau: I was not elected, but was nominated, just like you.
Senator Dyck: No, no. I meant to CAP.
Senator Andreychuk: Let us not personalize it.
The Chair: Is clause 11 carried, senators? We have discussed it in detail.
Senator Nancy Ruth: Where are we now, chair?
The Chair: We are at clause 11, and there is an amendment.
Senator Dyck: Remove it.
Senator Mitchell: Yes.
Senator Jaffer: It is our amendment.
The Chair: Yes, there is an amendment here to remove it.
Senator Mitchell: We want to defeat it.
The Chair: Will it carry or is it defeated?
Senator Nancy Ruth: Carried.
Senator Mitchell: Against.
The Chair: Could we please clarify this situation? We are voting. The question is do we carry or defeat clause 11?
Senator Mitchell: To defeat it. It is up, now.
Senator Andreychuk: We are carrying it.
The Chair: We are voting on the clause. Are we for it or against it?
Senator Jaffer: We are against it.
Senator Dyck: Against.
The Chair: You are for it. It is carried.
Some Hon. Senators: Agreed.
The Chair: It is carried.
Shall clause 12 carry?
Senator Mitchell: No; opposed.
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 13 carry?
Senator Mitchell: No.
Some Hon. Senators: Agreed.
The Chair: Shall clause 14 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: Opposed.
The Chair: Shall clause 15 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: Opposed.
The Chair: Shall clause 16 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 17 carry?
Senator Jaffer: Excuse me.
The Chair: Which do you wish to address, Senator Jaffer?
Senator Dyck: Coming into force should not be until three years after the passage of the bill. When we removed section 67 from the Canadian Human Rights Act there was a provision that it would come into force three years after the date of enactment of the bill.
Senator Andreychuk: This is not on your proposal?
Senator Jaffer: No. It is something that Senator Dyck wants to address.
The Chair: You will have to bring it forward at third reading.
Senator Dyck: There needs to be time for First Nations to consider how their existing mechanisms for alternative dispute resolution such as mediation will be affected by this bill and how they will get the resources to deal, in the way required by this bill, with matrimonial real property matters that come up in their communities.
Senator Nancy Ruth: I am confused and need help. I thought this dealt with MRP, not with the bill. The coming into force deals with the new provisions for MRP that they voted on coming into force, not this bill coming into force.
Am I correct that what you are saying deals with this bill?
Senator Dyck: That is correct.
Senator Nancy Ruth: I do not think this is what this clause is about.
Senator Dyck: Maybe it should be dealt with at the end.
Mr. Jacques: You are correct, senator. This only addresses the coming into force of the First Nations laws. The coming into force of the bill is one of the last clauses.
The Chair: Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 18 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 19 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 20 carry?
Hon. Senators: Agreed.
The Chair: Clause 21 is an amendment. Will this be deferred for further study, or will we pass it?
Senator Jaffer: We want to remove the 90-day period. We want to say that 90 days is too little. We should leave it to the discretion of the judge, as it is in other cases. Why would we put a 90-day period for Aboriginal women going through the court system? It should be left to the discretion of the judge.
Senator Nancy Ruth: Can we hear from the department on that?
The Chair: Will you comment, please, on clause 21?
Mr. Jacques: This is similar to what we find in other jurisdictions. Because it is an emergency situation, there is a time limit. Presumably the emergency situation would not extend longer than 90 days. The protection is only for specific periods.
Senator Jaffer: When you say "other jurisdictions," do you mean in Canada?
Mr. Jacques: Yes, in Canadian provinces.
Senator Jaffer: Which provinces?
Mr. Jacques: I do not know exactly which provinces.
Senator Jaffer: I have never —
Mr. Jacques: Not necessarily 90 days. They could have more or less, depending on the jurisdiction.
Senator Jaffer: Can we defer this clause until that information is provided? I have never seen that.
Senator Nancy Ruth: It is only for emergency provisions.
The Chair: Senators, are we voting on clause 21.
Senator Jaffer: We had agreed that we could defer if we wanted to.
The Chair: I have to get the view of the sponsor of the bill. There are four amendments to clause 21.
Senator Jaffer: Yes, but that is a different one.
The Chair: Is there agreement to defer the government amendment to clause 21?
Senator Nancy Ruth: Will we be deferring the clause?
The Chair: The amendment will be deferred, not the clause.
We can defer the clause, but can we defer the amendment?
Senator Mitchell: We are deferring consideration of the clause to Monday.
Senator Andreychuk: I want to hear that from the chair.
The Chair: We are deferring clause 21 until Monday.
Senator Andreychuk: We are going to defer the entire clause?
The Chair: We have to in order to be able to discuss it. We either vote on this or we defer. There was an agreement earlier that we would defer certain clauses.
Senator Nancy Ruth: The government has at least two more amendments to clause 21.
The Chair: Shall clause 22 carry, with the amendment?
Adam Thompson, Clerk of the Committee: Has the amendment been moved and adopted?
Senator Nancy Ruth: I move that clause 22 at line 22 on page 16 be amended by adding at the end:
including evidence on the collective interests of the First Nations members on whose reserve the family home is situated, in their reserve lands.
The Chair: Shall clause 22, as amended, carry?
Hon. Senators: Agreed.
Senator Dyck: Does this mean that the collective interests of the First Nations can be ruled upon by a judge?
Mr. Jacques: No, this only says that the evidence presented on the collective interests will be taken into account. The First Nations would have the opportunity to make representations on their collective interests, so the judge is not adjudicating on that specific.
The Chair: We have to adopt the amendment and then the clause. It has already been adopted, so Senator Dyck's question was after the fact.
Now on clause 23, Senator Nancy Ruth.
Senator Nancy Ruth: I move that clause 23(3) on page 17 be amended by adding to the end:
including evidence on the collective interests of the First Nations members, on whose reserve the family home is situated, in their reserve lands.
It is the same issue.
Senator Dyck: Why are we adding that?
Ms. Paré: Under Bill S-4, before making his or her decision the judge will take into consideration the interest of the children and other things that are listed. First Nations will have an opportunity to make representations with respect to their culture, values and traditions. This added wording is to clarify that included in that process will be evidence with respect to their collective interest in the First Nations member or members. The judge will also take that into consideration, so it is really to bring more certainty and clarification.
Senator Dyck: I am wondering why you are bringing it forth now and not before, and why it was initiated at this particular period in time. Was it because of something one of the witnesses said?
Ms. Paré: Yes, witnesses spoke about their concerns with respect to ensuring the taking into consideration the collective interest of First Nations.
The Chair: Is it agreed, senators, to adopt the amendment to the motion in clause 23?
Hon. Senators: Agreed.
The Chair: Is it agreed that clause 23 shall carry?
Hon. Senators: Agreed.
Shall clause 24 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Senator Nancy Ruth, proposed amendment to clause 25?
Senator Nancy Ruth: Would you read it, please, Mr. Jacques?
Mr. Jacques: Paragraph 25(3)(c) would now read:
The collective interests of First Nations members in their reserve lands and the representations made by the council of the First Nation on whose reserve the family home is situated with respect to the cultural, social and legal context that pertains to the application.
Senator Nancy Ruth: The collective interest is added at the beginning.
Ms. Paré: It is also to bring clarification, because at the beginning subclause 25(3) says:
In making an order under this section, the court shall consider, among other things,
It makes some specific reference to taking into consideration the collective interests of First Nations members in their reserve lands
Senator Jaffer: This clause bothered me at first, but I did not ask for clarification, so I will ask you now. Here the representations are not by the individual, but by council, so a third party would be coming into an issue of a husband and a wife, or a partner, let us say. These would be representations made by the council, right?
Ms. Paré: Yes.
Senator Jaffer: I cannot visualize it. Can you please help me? When would the council be involved, and would the council be involved in every case?
Mr. Jacques: As it stands now, it is provided that the council would receive notice of all applications under this bill except for the first emergency protection, so the judge would grant them their right or give them the opportunity to make representations. It would be at the discretion of the judge when to hear them. Since matters respecting family law are confidential, the judge would probably not have the witnesses appear during the process but at the end of the process before making the order.
The Chair: Senator Nancy Ruth, do you want to finish the amendment?
Senator Nancy Ruth: The addition to paragraph 25(3)(c) gives another criterion to which the court needs to pay attention, and the amendment reads:
the period during which the applicant has habitually resided on the reserve;
Senator Mitchell: Does that mean that if someone has lived there longer, they are treated differently?
Senator Nancy Ruth: You would have to ask the judge. I have no idea.
Mr. Jacques: That would be a consideration that would be taken into account, among other things.
Senator Mitchell: We do not specify all the other things, though, such as number of children, age of children and proximity of schools.
Mr. Jacques: All these considerations are listed in that section, including best interests of children and all kinds of circumstances, but this is among other things. The emphasis is put on those that are here so the judge can take into consideration anything that would be presented to him.
Senator Mitchell: Where did this come from?
Senator Nancy Ruth: The amendment, as I understand it, responds to the comments of AFN, NWAC, the Federation of Saskatchewan Indians, the Anishinabek nation, the Association of Iroquois and Allied Indians, the chiefs from Ontario and other individuals. Many of them said it. The amount of time the person has been in the home has to count. It was put in as a response to their testimony.
Senator Jaffer: Does that mean that if a woman has been forced out of the reserve for some time, then she may have difficulty coming back if we put that as an requirement under this act? It is so new, and I am thinking aloud.
Senator Nancy Ruth: I do not think that is why it was put in.
Senator Andreychuk: She is obviously no longer in danger, and she has moved on. It may be unfair. You cannot take the AFN submission and say we like some of the things they say and dislike others. They are talking about taking into account someone who has moved into a place and whether they have made it their home and been part of that community for some time. That is what the judge will then address.
Senator Jaffer: Can I finish my thought?
The Chair: We have a bell ringing, Senator Jaffer. Do you want to keep on this motion?
Senator Jaffer: I was speaking on this. My challenge is that this is not for an emergency order. It is for an exclusive occupation order. If a woman has been, say for two years now, living away and not living on the reserve, this amendment can work against this person, and I have a concern about that. I need more explanation.
Senator Nancy Ruth: If she was off-reserve and prepared to go back, that would be part of the submission to the court.
Senator Brazeau: Her children go back to school on the reserve.
Senator Nancy Ruth: Can we finish this one and leave the rest? I am down at line 31, paragraph (e). The amendment would add:
modation that is situated on the reserve;
The amended clause would read:
the availability of other, suitable accommodation that is situated on the reserve as the family home;
The word "same" has been removed, so it is just an English thing.
Senator Jaffer: No, it is not. You are taking out the word "same" so the children would be removed from this reserve to go into another reserve.
Senator Nancy Ruth: No, the reserve is the family home.
The Chair: Are we in favour of the amendments to clause 25?
Senator Nancy Ruth: The three amendments.
Hon. Senators: Agreed.
The Chair: Shall the clause carry?
Hon. Senators: Agreed.
The Chair: On behalf of the committee, I thank Ms. Paré and Mr. Jacques for coming and for your time today.
We will resume at four o'clock Monday for the completion of the clause-by-clause review.
(The committee adjourned.)