Proceedings of the Standing Senate Committee on
Human Rights
Issue 4 - Evidence - June 14, 2010
OTTAWA, Monday, June 14, 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 p.m. to give clause-by-clause consideration to the bill.
Senator Janis G. Johnson (Chair) in the chair.
[English]
The Chair: We will continue our clause-by-clause consideration of Bill S-4.
We resume consideration at clause 21, which we deferred until today. Senator Jaffer will propose an amendment.
Senator Jaffer: I propose an amendment, which was circulated, to replace lines 35 and 36 with:
On an ex parte application by a spouse or common-law partner, whether or not that person is a First Nation member or an Indian, a designated judge of the province in which the family home is situated may . . .
The Chair: Is it agreed, honourable senators, to adopt the motion?
Senator Nancy Ruth: No.
The Chair: The motion is defeated.
Senator Nancy Ruth will propose a second amendment.
Senator Nancy Ruth: To clause 21? Leave it as standing. What are you asking me?
The Chair: We have four amendments that were deferred from last week. We have clause 21, pages 12, 13 and 14.
Senator Nancy Ruth: I propose an amendment to Clause 21, lines 35 and 36 on page 12 as follows:
On ex parte application by a spouse or common-law partner, a designated judge of the province in which the family home is situated may
The Chair: Is it agreed, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chair: Motion carried.
Senator Jaffer will propose a third amendment.
Senator Jaffer: Also in clause 21, I propose another amendment on page 12, by replacing line 37 with the following:
make an order for a period of up to 180 days that
I would like the committee to consider amending the 90 days to 180 days, to take into consideration where people may live and how hard it may be to return to court. It would still be at the discretion of the judge, but the order could be for up to 180 days.
The Chair: Is it agreed, honourable senators, to adopt the motion?
Senator Andreychuk: No.
The Chair: Motion defeated.
Senator Nancy Ruth will propose a fourth amendment.
Senator Nancy Ruth: Clause 21 is amended by replacing line 14 on page 13 with the following:
the designated judge granted in accordance with the regulations.
The Chair: Is it agreed, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chair: Motion carried.
Senator Nancy Ruth will propose a fifth amendment.
Senator Nancy Ruth: I propose that Clause 21, be amended by replacing line 34 on page 13 with the following:
interest or right in or to the family home;
the period during which the applicant has habitually resided on the reserve; and
The Chair: Is it agreed, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chair: Senator Nancy Ruth will propose a sixth amendment.
Senator Nancy Ruth: I propose that Clause 21 be amended by replacing line 42 on page 14 with the following:
(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
The Chair: Is it agreed, honourable senators, to adopt the motion?
Senator Jaffer: I challenge this. If you recall, I asked for regulations. This is saying as per "regulations." We have not seen those regulations. I understand those regulations will not be shared with us. We received a note to say the regulations have not been shown to the people. We are voting on something when we do not even know what will be in the regulations.
Line Paré, Director General, External Relations and Gender Issues Branch, Indian and Northern Affairs Canada: We provided draft regulations to the committee.
The Chair: Yes, you have.
Senator Jaffer: The note I received was that the regulations could not be shared because they had not yet been shown to the Aboriginal people with whom you are dealing.
I have not seen the regulations. May I have a copy?
Ms. Paré: Yes, we are pleased to give you copies of the proposed draft regulations. The committee asked if we had draft regulations. We were pleased to share them with the committee.
The intention is to engage with provinces on the draft regulations and ask for feedback, then to engage with Aboriginal organizations.
Senator Jaffer: This was not given to us. I can assure you that we did not receive this. This is the first time I have seen this. I know this file well. The note I received — I am looking for it — was that we could not see them.
Karl Jacques, Senior Counsel, Department of Justice Canada: This is a side-by-side copy. That is my own copy. The copies provided were one language on each set of documents.
The Chair: It is my understanding that these regulations are usually available after we finish our work?
Senator Andreychuk: In many committees, we often ask for them and, if it is possible, we receive them. Otherwise, we have a Standing Joint Committee for the Scrutiny of Regulations. We have often asked informally of the department that they keep us apprised of the regulations so that we can comment on them and be further involved in their development.
I understood that to be what we were doing in this case. We know a consultation process must take place. The first drafts have been seen, and we will continue to monitor.
The Chair: That is my information as well.
Senator Jaffer: Regarding my request for a copy of draft regulations, the answer was that the draft regulations have not been shared with the First Nations or provinces. There is no draft attached to this memo. This is what I received.
Ms. Paré: They are mentioned as an annex.
Senator Jaffer: The annex is not the whole regulation. We did not receive them. Anyway, let us move on.
The Chair: Other members received the draft regulations, Senator Jaffer. It is unfortunate you did not. It was all given to us in a separate file.
Is it agreed to adopt the motion?
Hon. Senators: Agreed.
The Chair: Shall clause 21, as amended, carry?
Hon. Senators: Agreed.
The Chair: We will resume discussions on clause 26.
Senator Nancy Ruth: I propose that Clause 26, be amended by replacing line 9 on page 21 with the following:
(d) the collective interests of First Nation members in their reserve lands and the representations made by the council
The Chair: Is it agreed, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chair: On clause 26. Senator Jaffer, do you have an amendment.
Senator Jaffer: I have an amendment to clause 26, page 20. I move that lines 32 and 33 be replaced with the following:
survivor who is a member of the First Nation on whose reserve the family home is situated, order that the
This is so we do not have a non-Aboriginal person get interest in the reserve. That is the reason for this amendment.
Senator Andreychuk: Could you read how you would have it read?
Senator Jaffer: Certainly. It is at the beginning of clause 26:
A court may, on application by a survivor who is a member of the First Nation on whose reserve the family home is situated, order that the. . . .
We would remove the words "whether or not that person is a First Nation member or an Indian." Those words would create rights for non-Aboriginal persons on reserves. I respectfully suggest that is not what we are looking at. Therefore, I am suggesting this amendment.
The Chair: Is it agreed, honourable senators, to adopt the motion? Do you want further discussion?
Senator Nancy Ruth: I would like to hear what it would mean.
Mr. Jacques: This amendment would change what the legislation says. It provides the right to both member and non-member survivors to make an application for exclusive occupation. The difference is that clause 25 deals with the orders for application in case of breakdown of marriage. Clause 26 is in case of death. That would be a distinction that would be created.
The Chair: Honourable senators, do we agree with the motion?
Some Hon. Senators: No.
The Chair: The motion is defeated. Shall clause 26, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 27 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 28 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 29 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 30 carry?
Hon. Senators: Agreed.
Senator Nancy Ruth: I have an amendment to clause 31 on page 23, lines 29 to 32.
occupation of the family home to a spouse, 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
The Chair: Do honourable senators agree to adopt the motion?
Hon. Senators: Agreed.
The Chair: Shall clause 31, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 32 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 33 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 34 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 35 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 36 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 37 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 38 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 39 carry, senators?
Hon. Senators: Agreed.
The Chair: Shall clause 40 carry?
Senator Jaffer: May I suggest that clauses 40 through 50 be carried?
The Chair: Is there agreement, honourable senators?
Hon. Senators: Agreed.
The Chair: In amendment, Senator Nancy Ruth will propose a new clause.
Senator Nancy Ruth: After clause 50 on page 40, line 12, I move the addition of clause 50.1. There are two parts. Clause 50.1 reads:
(1) An order made under this Act in a divorce proceeding as defined in subsection 2(1) of the Divorce Act is deemed, for the purpose of section 21 of that Act, to be an order made under that Act.
(2) 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 provision deals with the right of appeal in divorce proceedings.
Senator Kochhar: Are you adding a subclause?
Senator Nancy Ruth: It is a whole new clause.
Senator Kochhar: To 50(a) and 50(b)?
Senator Nancy Ruth: Well, it is 50.1(1) and 50.1(20).
Senator Kochhar: You already have 50(1) and 50(2).
Senator Nancy Ruth: It is clause 50.1(1).
Senator Jaffer: I do not understand. Could I have an explanation as to why the rights of appeal do not apply to those provisions?
Mr. Jacques: Appeal rights have to be mentioned, usually. Therefore, this had to be specified. It says, when an order is made in the divorce proceedings, the appeal would be made under the Divorce Act, as if the divorce were appealed. This is what subsection 1 does. Subsection (2) says that in any other case where there is not a divorce proceeding, the appeals for orders would be made to a competent court.
The Chair: Thank you, Mr. Jacques. Honourable senators, do we want to adopt the motion?
Hon. Senators: Agreed.
The Chair: Shall clause 51 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 52 carry?
Hon. Senators: Agreed.
The Chair: Clause 53?
Hon. Senators: Agreed.
The Chair: Clause 54?
Hon. Senators: Agreed.
The Chair: Clause 55?
Hon. Senators: Agreed.
The Chair: Clause 56?
Hon. Senators: Agreed.
The Chair: We have an amendment to clause 57.
Senator Nancy Ruth: I move that clause 57 on page 43, be amended by replacing line 6 with the following:
ings under this Act and prescribing anything that by this Act is to be prescribed.
It is at the end of the subclause.
Senator Andreychuk: Are you amending subclause 57 (1) or (2), or adding to it?
Senator Nancy Ruth: I am adding to the end of subclause 57(1).
The Chair: You are replacing line 6 on page 43?
Senator Nancy Ruth: I am adding it on the end.
The Chair: Do members agree to adopt the motion?
Hon. Senators: Agreed.
The Chair: Shall clause 57 carry, as amended?
Hon. Senators: Agreed.
The Chair: Clause 58. Do we have that in front of us? Is it carried?
Hon. Senators: Agreed.
The Chair: Clause 59 and 60? Then Senator Jaffer will propose an amendment.
Senator Jaffer: I have an amendment to clause 60 on page 44 that would replace lines 27 to 30 with the following:
This Act comes into force on the day that is three years after the day on which it receives royal assent.
This amendment was requested by Senator Dyck, who, unfortunately, is attending a meeting of the Social Affairs Committee.
She feels — and I agree with her — that most legislation of this kind has this transition period, and it would help here, as many of the provisions are not in place. For example, the resources for the centre are not in place. Thus, we propose that there be a three-year transition period.
The Chair: Are there any further comments? Is it agreed, honourable senators, to adopt the motion?
Senator Brazeau: No.
The Chair: The motion is defeated.
Senator Jaffer, you have a new clause to propose.
Senator Jaffer: Yes, I have another clause. It is a non-derogation clause, which is often used in this kind of legislation. I would like to add to clause 2, page 5 after line 17 the following:
2.1 For greater certainty, nothing in this Act shall be construed as to abrogate or derogate from any existing Aboriginal or treaty rights of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.
I would like to add that derogation clause.
The Chair: Are there any comments?
Senator Mitchell: I support the amendment, particularly because it is one of those clauses, first, for which there is all kinds of precedent; and second, the Conservative government has not for a moment suggested that it wishes to abrogate any existing right. The amendment is simply a useful boilerplate to ensure they are cognizant of that commitment, and it gives at least some sense of security to Aboriginal peoples.
If the government is serious about what it is saying, it would lose nothing by accepting this amendment. However, it gives something to Aboriginal peoples, who clearly are concerned that our vision of individual rights would be imposed on their collective rights.
The Chair: Is it agreed, honourable senators, to adopt the motion?
Senator Andreychuk: I am just curious, Senator Jaffer. We are talking about marital interests on reserve. It is a bit like when we women started to fight for our rights. I understood this to be the same situation.
Much of the argument and discussion was around whether section 35 of the Charter or the gender equality sections would trump. I understood it was a balance. If you put in this provision, the bill will say that if there is any question of competing rights, even in the customary, section 35 will prevail. Is that what you are saying?
Senator Jaffer: We are creating rights here for non-Aboriginal people on reserves, and I am anxious to ensure that we do not give away any of the rights of Aboriginal people. Therefore, I am suggesting this amendment to ensure we protect the rights that already exist for all Aboriginal people.
Senator Andreychuk: That is why the government has introduced its amendments, to ensure that the rights of property in particular and existing rights under the community are fully taken into account. That balance will be lost if we accept your amendment. Therefore, I have great concern as to whether this act will accomplish what it should.
Senator Jaffer: After discussion, we have agreed to put collective rights back into this bill. I think this provision will further ensure that the rights of Aboriginal people, as a whole people, are not abrogated or taken away because we have created rights for non-members on reserve.
Senator Mitchell: I am certainly interested in the senator's argument. Surely, she would accept this observation — that while you have made an effort to check off each of the rights in the bill where Aboriginal people might be affronted or not adequately taken care of, you cannot do that comprehensively. You cannot know where those rights might be eroded, given the course of litigation and the way these things go.
If you made all those amendments with a view to ensuring Aboriginal rights were not offended, why not go one step further and ensure, with this blanket clause, that there is no question that it could occur?
Senator Andreychuk: That there is "no question that it could occur" when it should not occur will be in the hands of the First Nations authorities to craft their plan accordingly. However, the bill takes into account marital property. By making this amendment, you could throw the entire intent of the bill into question.
Senator Mitchell: Could you explain that? I do not see how that possibly could be the case.
Are you saying that by putting in this clause to protect the rights of Aboriginal people from abrogation, you are throwing into question the entire bill? Does that not make our case?
Senator Andreychuk: No, quite the opposite. The bill says that the First Nations shall determine marital property according to their customs, et cetera. If they do not do it, there is a prescriptive format for the interim or for otherwise. That is an assurance for children particularly, and I am more worried about that aspect at this point. That is the essence of the bill, to deal with domestic violence, provide some protection for children and the partner or spouse who is not the cause of the violence.
I want to keep it intact. I want community rights intact. That is why all the amendments to various provisions in the bill were necessary. If you can show me where we missed one, I would be prepared to put a further amendment.
Senator Mitchell: I would not presume that I or anyone else can anticipate all of them. That is why we would like to have this provision.
Senator Andreychuk: That is not what your non-derogation clause does.
Senator Mitchell: We would like to make sure. Your further point is that somehow Aboriginal peoples will be making the legislation, so why would they abrogate their own rights. The fact of the matter is that these very same people are asking us to put in this kind of clause. They are suspicious of this bill.
Senator Andreychuk: I would like to know who asked you to put it in, other than our witnesses. What I am concerned about is you are tying the hands of the First Nations to put in the kind of system that they believe is in the best interests of their members.
Senator Mitchell: Those very same people are asking for this clause, so they must not have quite the confidence in this bill. They have not split this bill between the federal government's role, its application of what you say is an interim arrangement — which will go on for another 100 years because they will not have the capacity to do their own bills — and what you say is their obligation. Even if you are not worried about the obligation of Aboriginal peoples and their leaders and their role here, there is still this other side of the bill, which they are clearly concerned about, and I would argue you should be as well.
Your argument is also shifting. You have gone to protecting children. Are you saying you have to abrogate rights to protect children?
Senator Andreychuk: I am saying I want a balance of the rights under the Charter, period.
Senator Mitchell: Okay, that needs definition. Finally, you mentioned family violence. Senator Nancy Ruth said that this bill has nothing to do with family violence, but family violence keeps coming up. Let us make it clear: This bill will not deal with family violence. It will not reduce it. It is not a surrogate for policies and programs that will deal with people on a personal level.
Senator Andreychuk: No one is saying that.
Senator Mitchell: You did mention that.
Senator Andreychuk: No, I am talking about families in crisis. "Violence" has many definitions. You are talking about physical violence; I am talking about emotional violence and many types of violence. A family in a breakdown situation is dealing with trauma on all sides. We here should be trying to assist in a speedy resolution of their issues. That is what conflict resolution is about.
Senator Brazeau: I want to say that adding a non-derogation clause is rather redundant because our highest piece of legislation in the land, the Constitution, under section 25, already has the ultimate non-derogation clause, and section 35 of the Charter protects our Aboriginal and treaty rights. It is redundancy in the maximum.
The Chair: Is it agreed to adopt the motion?
Some Hon. Senators: On division.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chair: The bill is carried.
Senator Jaffer: On division.
The Chair: Is it agreed I report this bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chair: I believe that concludes our business for today, unless anyone has something they wish to discuss at this time. We will report to the Senate tomorrow, and it will be spoken to on Wednesday by Senator Nancy Ruth and Senator Jaffer.
Senator Andreychuk: What is our agenda for next Monday?
The Chair: You will be advised.
Senator Andreychuk: In the fullness of time?
The Chair: By tomorrow. We have been waiting for one final piece of translation. We are probably sitting next Monday.
(The committee adjourned.)