Proceedings of the Standing Senate Committee on
Issue 3 - Evidence - May 31, 2010 (morning session)
OTTAWA, Monday, May 31, 2010
The Standing Senate Committee on Human Rights, to which was referred Bill
S-4, An Act respecting family homes situated on First Nation reserves and
matrimonial interests or rights in or to structures and lands situated on those
reserves, met this day at 10 a.m. to give consideration to the bill.
Senator Janis G. Johnson (Chair) in the chair.
The Chair: Good morning, and welcome to our committee today. We are
studying Bill S-4, an act respecting family homes situated on First Nation
reserves and matrimonial interests or rights in or to structures of lands
situated on those reserves.
We have a very long schedule today. I know that everyone present is well
prepared. While we have a tight schedule, do not feel you have to rush through
Austin Bear, Chief, First Nations Land Advisory Board: Thank you, and
good morning, honourable senators and to those gathered in this place. My name
is Austin Bear, and I am the Chief of the Muskoday First Nation, Treaty 6, which
is now the Province of Saskatchewan. I have had the honour of serving my First
Nation as chief for 20 years. Our First Nation is situated just a few kilometres
southeast of the City of Prince Albert in Saskatchewan. Sitting next to me is my
colleague, Councillor William McCue of the Georgina Island First Nation in
Ontario. Councillor McCue has had the honour of serving his community as either
chief and/or councillor for the past 19 years. The Chippewas of Georgina Island
are situated 45 minutes northeast of the city of Toronto.
We are here today not only as leaders of our communities but also as members
of the First Nations Lands Advisory Board and the First Nations Resource Centre
representing the Framework Agreement on First Nations Land Management in order
to speak to the issue of matrimonial property rights on our First Nations lands.
The framework agreement was signed between Canada and 13 First Nations in
1996 after many years of First Nations deliberations and then
government-to-government negotiations with Canada. Canada passed the First
Nations Land Management Act in 1999 to ratify and bring into effect the
framework agreement. The 13 First Nations each ratified the framework agreement
by developing and approving a community land code. The framework agreement is
historic. It represents the only time in Canadian history that a group of First
Nations from across Canada have approached the Government of Canada with a
detailed proposal to opt out of the 32 land-related sections of the
paternalistic Indian Act and reassume control over our lands and resources
without interference from the ministry of Indian and Northern Affairs and/or
Since 1999, the framework agreement has been amended to include additional
First Nations wishing to reassume control over their reserve lands and
resources. There are currently 56 signatory First Nations to the framework
agreement. In addition, there are approximately 60 other First Nations
interested in becoming signatories when the Government of Canada reopens the
framework agreement to more interested First Nations.
Section 5.4 of the framework agreement makes specific provisions for a
signatory First Nation to establish a community process in its land code to
develop rules and procedures applicable on the breakdown of marriage to the use,
occupancy and possession of its lands and the division of interests in the First
Nations land. The rules and procedures deal, for constitutional reasons, with
only matrimonial real property on First Nations land. Other property — forgive
me, I have to use this term — on reserve and all property off reserve is within
the jurisdiction of the family and property laws of the province.
Under the framework agreement, signatory First Nations, matrimonial real
property rules and procedures cannot discriminate on the basis of sex. A
signatory First Nation has 12 months from the date its land code comes into
effect to enact the matrimonial real property rules and procedures.
Matrimonial property law has always been a priority of the framework
agreement. In fact, the framework agreement signatory First Nations, which have
ratified and implemented their land codes, are the only First Nations in Canada
to have the explicit law-making authority to deal with this complex area of law.
This authority has existed on my First Nation at Muskaday and on Councillor
McCue's First Nation at Georgina Island for almost 10 years. All the framework
signatory First Nations are proud to have taken the lead in this area.
Provincial family law statutes deal with many matters beyond the range of the
framework agreement, for example, support obligations, domestic contracts,
dependent claims for damages, et cetera. Child custody and maintenance are
usually dealt with in other provincial statutes, dealing specifically with
children. The federal Divorce Act covers divorce.
There are four basic rights under family law: the right to possession of the
matrimonial home; the right to a division of family property; three, the
equality of treatment between spouses; and, four, the right to compensation for
spousal interest. These minimum standards are protected under the framework
agreement. It is mandatory for each of the signatory First Nations, after they
have ratified the framework agreement by approving their community land code, to
establish rules and procedures dealing with the first three of these rights.
Currently, 15 signatory First Nations have enacted matrimonial laws pursuant
to their own land codes. Thirteen other signatory First Nations are in the
process of establishing their matrimonial laws pursuant to their land codes.
Nisga'as, under their treaty, and the Westbank, under their self-government
agreement, have addressed their matrimonial real property laws outside of the
The framework agreement signatory First Nations operating under their land
codes have addressed the need for matrimonial real property laws. The First
Nations Land Advisory Board, which is an elected body representing these First
Nations at this time, is satisfied that the framework agreement is protected in
Bill S-4, which is being considered here today.
We will continue to follow these proceedings. The land advisory board does
not speak for other First Nations who have a more immediate interest in this
proposed legislation. The board respects their right to propose changes or
alternative routes to the recognition and protection of these human rights in
their own First Nations.
I thank this committee for its time to hear our words. I read these
statements into the record. Mr. McCue and I would be pleased to answer any
Jody Wilson-Raybould, Regional Chief, British Columbia, Assembly of First
Nations: To introduce myself, my name is Jody Wilson-Raybould, and I come
from the Musgamagw Tsawataineuk and Laich-Kwil-Tach people of Northern Vancouver
Island. I am a member of the We Wai Kai Nation of Cape Mudge and I live in my
home community with my husband, where I am also a member of council.
I am here today representing the National Assembly of First Nations in my
capacity as the regional chief for British Columbia and as the national
portfolio holder for First Nation governance. I am joined here today by Karen
Campbell of our office.
I would like to thank you for the opportunity to speak to Bill S-4. There are
of course serious issues with respect to matrimonial property rights on reserve.
We need to find legal mechanisms to address them. For example, we need to
protect the property rights of spouses and to address issues of domestic
violence, so a woman has a right to live in the family home without fear.
The fundamental question is: What is the best way to deal with these issues?
The government, for its part, has introduced Bill S-4, which is at best
described as an interim step. It is not the complete answer. A lot has been said
and discussed around this issue. We have had a ministerial appointed person. The
AFN has facilitated several dialogues, several reports have been produced by the
assembly and recommendations have been made. This legislation, as you know, was
first introduced in March of 2008 and this is its third introduction.
In some cases, federal legislation addressing rebuilding First Nations
governance has been drafted in partnership with First Nations, while in other
cases it has not. Bill S-4 is an example of the latter.
As a result of the AFN facilitated dialogue sessions, key principles were
identified to guide the AFN's approach to matrimonial property rights: The
recognition of First Nations jurisdiction; access to justice; dispute resolution
and remedies; and addressing underlying issues. These have since been confirmed
and reiterated in resolutions of our chiefs in assembly.
With respect to the recognition of the jurisdiction of First Nations, the
promise of rights recognition and reconciliation of section 35(1) of the
Constitution should require the explicit recognition of the inherent right of
First Nations to self- government as part of any legislative solution; in this
case, recognition of jurisdiction over matrimonial property rights on reserve.
Bill S-4 unfortunately does not do this. However, the preamble does
contemplate that there will be self-government recognition at some point, albeit
The bill does, however, establish delegated law-making authority for First
Nations to make laws in relation to matrimonial property rights and, until such
time as a First Nation makes such a law, establishes provisional rules that will
apply to all reserve lands. There are, in fact, few limitations on this
delegated law-making power and on the content of such laws. The only significant
condition in this bill is the requirement of a strict community ratification
process overseen by a verifier appointed by the minister.
Nevertheless, this delegated authority in Bill S-4 falls short of recognizing
the jurisdiction of First Nations. The AFN strongly recommends that Bill S-4 be
amended to recognize the inherent right of First Nations to self- government,
including jurisdiction, to address property issues.
From a practical perspective, the bill has also isolated the issue of
matrimonial property rights and related questions of jurisdiction that need to
be resolved to actually inform law making in the area of matrimonial property
rights, whether delegated or not.
Issues of matrimonial property rights cut across a number of jurisdictions
including lands, wills and estates, family relations, divorce, among others. If
issues of matrimonial rights are to be fully resolved, it will require more of a
comprehensive approach to addressing governance issues than is presented in Bill
For example, today there is great confusion over what interests in land
actually exist on the reserve, both under the Indian Act and under our customary
practices. How can we start to divide up interests in property on-reserve in the
case of matrimonial breakdown before first determining what those interests in
Bill S-4 actually compounds this confusion in its definitions of rights and
interest in land and family home. If those relying on the law cannot figure it
out, then the bill suggests a judge must decide. Some First Nations, as Chief
Bear has indicated, have actually taken steps to address these issues and
created codes, rules and laws to address matrimonial property rights as part of
broader sectoral or comprehensive self-government initiatives. My own community,
in fact, is engaged in developing its own matrimonial property law under our
The provisional rules are, therefore, going to be problematic as they assume
matrimonial property rights can be determined in isolation of answering broader
issues of jurisdictional uncertainty on reserves.
I say this based on the experience from our communities where we have
developed or are developing matrimonial property laws as part of broader
self-government initiatives. Our communities have had to consider the various
policy issues around this matter before drafting our own laws.
The second area the AFN dialogue sessions identified had to do with justice,
dispute resolution and remedies under the bill. The remedies proposed in Bill
S-4 rely heavily on access to provincial courts. Legal aid systems across Canada
are chronically underfunded and are not meeting current needs, let alone future
demand created by the potential adoption of this legislation.
Due to significantly lower levels of income on-reserves, it will be difficult
if for many couples to access existing or new remedies. Also, it will be
difficult for legal practitioners to work through the complicated interplay of
the provisional rules, the jurisdictional uncertainty under the Indian Act and
the relationship to provincial laws dealing with other family relations matters
that will be addressed at the same time as matrimonial property rights.
As a result, seeking a remedy in court under Bill S-4, I believe, will be
more expensive than for persons living off- reserve. Also, requiring
compensation to a spouse for a portion of the value of the matrimonial
interests, as required under the bill, could create further economic stress for
some of our First Nations individuals. Where the financial situation of one or
both spouses is in issue, it will be important for some form of financial
assistance to be made available to separating or divorcing couples on-reserve so
that they can access existing or new remedies.
The AFN recommends the creation of a specific mechanism to support such
access. Supporting the establishment of remedies within First Nations that are
grounded in our legal traditions and balancing collective and individual
interests at the community level, can increase access to justice and remedies
and reduce costs. These could include support for the establishment of First
Nation courts and enhancements to current investments in community based dispute
I note that Bill S-4 is explicit on the authority of the courts to hear
disputes in relation to the provisional rules, but it is not explicit with
respect to the dispute resolution powers for First Nations, both with respect to
the extent of the First Nations jurisdiction and how a First Nation could rely
on the provincial or Federal Courts to enforce its laws if it so desired.
The third area identified in the dialogue sessions was that a legislative
solution such as Bill S-4 will not address many of the underlying issues that
led to matrimonial property right disputes in the first place. Unfortunately,
family violence remains a critical factor in family breakup in First Nations
communities. Providing better prevention support, as well as adequate emergency
and second-stage housing has been identified as a requirement. Chronic housing
shortages on most reserves must also be addressed. When First Nations couples
separate, the lack of alternative or affordable housing for the spouse who is
not granted exclusive occupation of the family home will be an issue.
In moving forward, it is clearly important that we find solutions to the on-
reserve matrimonial property rights issues. It is even more important that we
get it right, as failure to do so will only result in the imposition of further
hardship on First Nation families and communities. Without attention to the
implementation and supporting safe and strong communities, legislative reform in
itself cannot significantly improve the lives of our communities and our people.
What is required is support for First Nations to develop their own laws as part
of a broader process of rebuilding our nations from the ground up, from the
community up, in a manner that clearly respects First Nations jurisdiction.
Whether or not the federal government and First Nations have the political
appetite to support a comprehensive self-governance initiative is the question
we all have to ask. In fact, it has been a question for some time, which is why
I presume the minister continues to focus on specific governance issues such as
matrimonial property rights and clean water in the absence of an agreed-upon or
more comprehensive approach or process leading to true self-government for all
In conclusion, Bill S-4 is flawed, but if passed, let us hope it will have
limited application in our communities because we have found that long-term
solutions to these and other issues as part of a comprehensive First Nations
governance reform is needed.
Jeannette Corbiere Lavell, President, Native Women's Association of
Canada: Meegwetch. It is nice to see all of you here. I recognize the
people around the table. Honourable senators, before I begin my presentation, I
would like to acknowledge the Algonquin people, whose land we are on, and
recognize that tomorrow we will be using their land for a rally on Parliament
Hill to look at our Indian Act and our rights as Aboriginal women. I invite all
honourable senators to our rally.
My name is Jeannette Corbiere Lavell. I am Anishinabe from Manitoulin Island.
I am the president of the Native Women's Association of Canada. I would like to
get into what we would like to stress today. I know we have some time issues
The Native Women's Association of Canada supports legislation in the area of
on-reserve matrimonial real property and, in fact, we have been the leaders in
this area for many years. I just found out we have been working on this since
1998, so it is of great concern to us.
We have learned from past lessons, however, that change must be reasoned and
represent a holistic solution as opposed to a partial solution that will lead to
further difficulties down the line. It should be based on the human rights of
Aboriginal women in Canada. We only need to look at the solutions that resulted
from Bill C-31. We all know the difficulties we are going through with that. We
need to find a solution that will result in a true remedy to the current
legislative gap and equalities in relation to matrimonial property rights on
Based on the extensive meetings held with Aboriginal women across Canada
prior to the introduction of Bill S-4, which is Bill C-47 and Bill C-8's
predecessor, Native Women's Association of Canada identifies solutions to this
complex issue through our report entitled Matrimonial Real Property: A
People's Report, which is available.
It is clear that in the 21st century we deserve legislative solutions that do
not pit individual and collective rights against one another but, rather, work
to complement the unique set of rights that Aboriginal women and their families
hold, both as individuals and as members of collectives, referring back to our
customs and traditions. That is very important to recognize here as well.
In this latter regard, we welcome Canada's recent recognition of this
principle in its intent to endorse the United Nations Declaration on the Rights
of Indigenous People.
The need to balance all the human rights held by Aboriginal women is why we
do not support this particular bill. We would like to see some changes, at which
time it would be acceptable.
We were asked by the federal government during the lead-up to Bill C-47 what
our perspectives were on the critical elements of this legislation.
Unfortunately, our solutions were not reflected in this piece of legislation. We
had what we thought were several good solutions. We find ourselves in a position
of needing to advocate for stronger enforceable human rights in this area. We
called for a solution that would address the ongoing discrimination in the
Indian Act and broader citizenship issues. We supported the comprehensive
recommendations in the report of the ministerial representative, Ms. Wendy
Grant-John, and asked that these be incorporated into the proposed legislation.
We were clear in setting out that under legislative measures, these needed to
recognize the inherent jurisdiction of First Nation governments based on
principles of international law as well as section 35 of the Constitution.
The proposed legislation is based on a delegated law-making authority model,
which may be okay as an interim measure if it were supported by protections for
Aboriginal women and also provided for recognition of inherent jurisdiction,
Aboriginal rights under section 35 of the Constitution and international legal
standards and rights. However, this legislation does not recognize these
critical human rights issues.
Further, the exercise of the delegated law-making authority is fettered by
the verification officer, who is given powers without adequately defined
restraints, and based on the subjective qualification that he or she be unbiased
and have the necessary knowledge or experience to act as a verification officer.
That is a big presumption.
In terms of addressing violence against Aboriginal women, we wanted adequate
protections in place for Aboriginal women living on reserve who are at risk of
violence. The current legislation does not ensure the enforcement of court
orders related to exclusive possession of the home under section 7(2). This
leaves First Nations women vulnerable as ongoing discrimination in the Indian
Act and the treatment of Bill C-31 women and their families continues to this
day. Furthermore, compensation orders may require women on marriage breakdown to
have the financial resources to buy out the share of their partner's interest in
the family home, which may cause undue hardship. Furthermore, access to legal
counsel or legal services is limited and in many cases non-existent.
I will now discuss the non-legislative measures. From the onset, we were
adamant that there needed to be a plan and a commitment to non-legislative
measures to ensure that our women did not end up with empty rights. That was the
situation following Bill C-31 in 1985, where still today First Nations women are
fighting for legal remedies that will result in actual equality through the
elimination of continued residual discrimination in the Indian Act. Women are
still fighting against discrimination at the community level in realizing any of
their legal rights. These non-legislative measures include solutions to ending
violence and ensuring adequate policing, addressing poverty and the chronic
shortage of housing, the lack of shelters and second stage housing.
We continue to be prepared to find solutions to the inequalities facing First
Nations women and their families on reserve and welcome the opportunity to find
an effective legislative solution in partnership with the Canadian government
and First Nation governments.
We know from our history that we cannot compromise by accepting solutions
that will not result in full equality for the women that we are mandated to
serve and who we propose to continue serving. Meegwetch. Thank you.
The Chair: Thank you. Your presentations were excellent. I know you
are all committed to finding a solution to on- reserve matrimonial real
property. However, under the bill, the federal rules will only be in effect
until a First Nation enacts its own matrimonial property laws and enters into a
self-government agreement or develops a code under the First Nations Land
You told us in your testimony that you find the bill flawed and unacceptable,
although this could possibly cause more problems and grief for primary
caregivers on reserve, in particular, women.
Could you enlighten us on this, please?
Ms. Wilson-Raybould: Certainly, and I thank you for the question. In
terms of the submissions that the assembly is making with respect to the flaws
in Bill S-4 and your question, there are not established property laws for most
reserve lands in this country and for most communities. Consequently, there is
not clarity with respect to a land tenure system on reserve. The exception to
this is, as you point out, self-governing First Nations and First Nations that
have adopted and are operational in a land code system.
My submissions point to the reality not to say that there is not a necessity
to have property rights and matrimonial issues addressed on reserve, but it is
problematic to graft them on to the uncertainty that exists in the Indian Act in
terms of land tenure or how property is held.
I will give you an example from my own community prior to the ratification of
our land code. My husband and I purchased a house on our reserve from the
previous owner, filled out an offer to purchase, and completed the transaction.
As a result of that transaction, the transfer was put into a filing cabinet in
our band office. That is not to say that it is not a good filing cabinet, but
the transaction was not registered anywhere, which created uncertainty with
respect to our property. As I said before, to develop a law based upon
uncertainty for most First Nations that have not established clear property laws
or land tenure systems is problematic.
Senator Baker: First, I will congratulate the witnesses for their
excellent and interesting presentations. We are dealing with a complicated
subject. To continue on the last response, I do not know how else the
legislation could be crafted. The legislation really depends upon the legal
remedies that are available through provincial jurisdictions, which are
different in every province. In other words, the rules of court are different,
the access to lawyers is different, and Legal Aid is different. There is not a
You mentioned, chief, the idea of having First Nation courts. Is that the way
you put it, namely, to have a court system specifically to deal with these areas
that we are talking about right across the country? You mentioned courts. Did
you say First Nations courts?
Ms. Wilson-Raybould: I said potentially First Nations courts to deal
with these issues. Thank you for your question, Senator Baker.
In our review of the legislation, I looked to find what provincial
legislation was followed in the drafting. Clearly, this legislation does not
follow a specific provincial law, nor does it follow a specific or a First
Nations law. It is somewhat of a hybrid in terms of its development. It has
provisions that could prove problematic. In my submissions with respect to
alternative dispute measures or First Nations looking towards adjudicating these
matters themselves, I submitted that as a potential option and something to work
The fundamental and complex issue with which we are dealing is the First
Nations right to determine their way forward. They must determine what is
appropriate for their communities. Matrimonial property rights are a hugely
important issue, but cannot be isolated from the overall, or the broader, or the
more important question of providing First Nations with their inherent right to
self-government. That is a comprehensive right to self-government and that would
be the best approach in each First Nation community, directed by each First
Nation community and working with the Government of Canada to provide those
Senator Baker: The last witness made specific reference to the area of
legal remedies. When you look at the legislation, the thing that jumps out at
you is the legal remedies. Someone can get court orders or orders from judges,
which means that you must go to see a judge. If you seek out a lawyer, as you
point out, there are difficulties to obtain a lawyer in these circumstances,
particularly a lawyer who knows something about the subject as it relates to
this particular legislation, which, on the face of it, would be different,
perhaps, than what is being dealt with in that province.
Do you have any solution for that? What do you think should happen here?
Normally, the province dishes out the money for Legal Aid. The federal
government cost shares at the end of the year, but the rules are different in
each province. Would you suggest that the federal government be directly
involved? There is such a thing as the federal government paying for lawyers.
There is no doubt about that. It is what they call attorney general's rates.
What is your suggestion as to a solution to this problem of lawyers? You
mentioned it specifically in your representation.
Ms. Corbiere-Lavell: You are correct. That is one area that has been
giving us much difficulty. If we can develop, in partnership with the
government, a system of justice, courts, that would be acceptable to both sides
— when I say "both sides," they would have to enforce the laws of Canada and
take into consideration our cultural views in terms of our traditions and the
way we treat each other in our communities — and then take these people who have
been trained and are acceptable to both, it would be a simpler process. I think
that would be far easier to deal with than doing all these other things such as
training all kinds of lawyers right across Canada. In the long run, we are
looking at creating our own nations and our own jurisdictions as nations. A
nation has the ultimate authority to have its own justice system and its own
language. It has the authority to recognize its own laws, and everything that
corresponds with that, including the right to citizenship. It is also important
to have equity, fairness, and the recognition of equal rights for everyone.
This is not just for Aboriginal people. Non-native people will be married
into our communities and we need to respect their rights as well. It is not up
to us, and that is important to recognize. As mothers and grandmothers, we all
know how important it is to keep our families together, but if there is a
breakup, then the mother, or whoever is taking care of those children, should
have the protection of the law as well.
Mr. Bear: As a provision of the framework agreement and pursuant to
the Muskoday Nation Land Code, our matrimonial property law references that any
court of competent jurisdiction can hear the issues involved in marriage
breakdown, separation or divorce. Also, we have a provision under our land code
that those law cases could be heard in our community in terms of establishing a
justice of the peace to listen to the cases, if the members wish. We have that
Of course, there are some prior procedures. The courts are the last recourse.
There are opportunities for mediation disputes before the last recourse of the
Senator Jaffer: Thank you very much for your presentations. You have
given us much to think about.
Chief Bear, you said that this legislation fits within your framework.
Mr. Bear: That is correct. It is a provision of the Framework
Agreement on First Nations Land Management. It is enacted in a provision of the
Muskoday First Nation Land Code, and of course, the Muskoday First Nation
Matrimonial Real Property Law is a provision of our land code.
Senator Jaffer: Chief Wilson, you said you are consulted before
legislation is drafted. In this case you said you were not consulted. I would
like to know if there was a reason why you were not consulted.
Our committee, the Human Rights Committee, urged the government to do
something about matrimonial women's rights on reserves, so I feel anxiety about
having to do something. However, when I hear you all speak, I also understand
that we have to be respectful and take into account comprehensive rights.
What steps would you set out that we need to follow to provide protection for
Ms. Wilson-Raybould: I will address your first question. With respect
to consultation, as I indicated in my remarks, this matter has been discussed by
many people and by ministerial representatives. The AFN was involved in regional
dialogue sessions. We conducted about eight regional dialogue sessions in
partnership with the Native Women's Association.
From the perspective of those who participated, the chiefs and our community
members, those dialogue sessions were viewed more as information sessions. Many
of the participants of those sessions viewed the time frame — in this case it
was nine months — as too short to deal with these substantive, complex matters
that we are dealing with in our communities.
With respect to my submission, this matter did not delve deeply enough into
the wishes and desires our communities and of our First Nations leaders. There
was not enough time spent on working in partnership to find solutions to these
community driven matters and reflective of the reality and the jurisdictional
gap that exists in our communities.
Ms. Corbiere-Lavell: It is urgent that we put protections in place in
terms of women's rights to stop the violence and displacement from our
communities. That is of extreme importance. I would like to ask my colleague to
explain how that can be done.
Celeste McKay, Director of Human Rights and International Affairs, Native
Women's Association of Canada: I work with the Native Women's Association of
Canada as Director of Human Rights and International Affairs.
The point that President Corbiere-Lavell underlined in her presentation about
the need for a plan for the non-legislative measures would be of great
assistance, and then recognition in the legislation of inherent jurisdiction and
the fact that this is an interim measure but provision for real First Nations
law-making authority. The report that was issued by the ministerial
representative, Wendy Grant-John, sets out many recommendations that we can turn
to for solutions in the way forward.
The Chair: I would like to remind everyone that this committee is very
mindful of the perspective of the First Nations with regard to your inherent
jurisdiction over matrimonial real property, MRP. However, we all know it can
take several years to negotiate self-government agreements and for the First
Nations to enter into First Nations land management framework agreements. This
could mean that for many individuals on reserve, they would lack protections and
remedies available to other Canadians.
How do we respond, to this legislative gap while self-government agreements
are being negotiated? I think this is the key issue we have today and I would
like you all to answer.
Mr. Bear: That is a difficult question. You mentioned that
self-government arrangements are time-consuming, involving perhaps years of
negotiation before First Nations realize an agreement.
If I may suggest, there is one solution that would address some time frames.
If First Nations, for those who wish, had more availability to become
signatories to the Framework Agreement on First Nations Land Management, there
is already a process set to address this issue, while it addresses other issues
with respect to the jurisdiction and governance over First Nations lands,
resources and the environment. I would suggest that may be one option for
government to consider in moving forward, to make that available to other First
Nations who wish to use that as ways and means of securing and building
governance, while addressing other issues at the same time.
Ms. Wilson-Raybould: Thank you for the question. I appreciate the
response of my friend, Chief Bear.
In terms of your question, this legislation needs to recognize First Nations'
inherent jurisdiction to self-government. I recognize that developing
appropriate systems of governance in our communities will take time, as you
suggest. In the interim, there needs to be a transition plan or support for our
First Nations in terms of being able to tackle these huge issues, and make the
informed decisions in terms of moving out from under the Indian Act towards
This is social development work and there needs to be a plan in place within
all communities that supports the building of their capacity in order to make
these fundamentally difficult decisions.
If I may be so bold as to go back to Senator Baker's question with respect to
lawyers and how this legislation will be enforced, in terms of access to these
remedies it will take financial resources to be able to provide to First Nations
to seek refuge in the court or seek answers there. The suggestion of the
Assembly of First Nations is to develop a legal fund or a legal aid fund to
support First Nations in doing so. Likewise, First Nations have issues and
challenges in terms of geography. Many of our communities are remote and access
to court systems is extremely difficult. That must be recognized, as well as
providing mechanisms potentially for those communities to access these remedies.
Ms. Corbiere-Lavell: I agree with Chief Bear and Chief
Wilson-Raybould. At the same time, I recognize that it will take a long time to
do all this. Our members need that protection right away and we would accept the
legislation as it is if we could get interim measures that would removed those
flaws, somehow or another. Make it so that there is provision to make some of
those changes and continue to work to remove the difficulties and flaws. It can
be done. It must be done.
In terms of our history, we know that even some First Nations have
matrimonial property codes, but not very many do. Also, even in this day and
age, after 30 years, many of our First Nations across Canada do not have their
own membership codes. We are not looking at anything happening very soon.
Having said that, we need protection right away and need assurance that we
could have this and work together to remove those flaws and have access to
justice at the same time. That is key as well.
Senator Dyck: Thank you very much for your presentations this morning.
I could not help but think you have all essentially said that you are not
satisfied with Bill S-4. You all emphasized the need for the recognition of the
inherent rights of First Nations.
With respect to the First Nations Land Management Act, it sounds as though it
would cover many of the issues that Bill S-4 is trying to address, and it is a
remedy available now. Is that correct or is Bill S-4 much more comprehensive? I
know Chief Bear indicated that he thought the First Nations Land Management Act
would do the job, but do the other two organizations think that the First
Nations Land Management Act would be preferable over Bill S-4?
If you had a choice between the two, the First Nations Land Management Act
versus Bill S-4, what would be your choice? I think Chief Bear indicated he
thought the First Nations Land Management Act would do the job.
Mr. Bear: It does the job now, if I can use that phrase lightly.
However, it is more complicated than simply doing the job.
We would prefer — at least the signatories to the framework agreement — what
is in place and the provisions of the framework agreement with respect to
matrimonial real property rather than another piece of legislation.
In fact, our land code and our matrimonial real property laws, as they now
stand, would be exempt from this bill. If Parliament ratifies this bill, those
under the framework agreement and have operational land codes at this time would
actually be exempt.
I cannot say what might be the preference of other First Nations. I suppose
what makes more sense and is more practical would be their choice.
Prior to the framework agreement and our land code, the problems existed with
respect to the division of matrimonial property at the time of a marriage
breakdown. In our community, decency and common sense prevailed. We always kept
in mind the protection of children first and the protection of women if they
were determined to be — if I can use this term — unreasonable, unruly men.
Decency and common sense prevailed.
Ms. Wilson-Raybould: Thank you for the question. I am an elected
member of the lands advisory board also, and I come from a community that is
operational within the land management. I, as Chief Bear indicated, do not speak
for any First Nation in terms of their preference. However, as I stated in my
submissions, Bill S-4 does not address the underlying property issues. If First
Nations were to develop their own laws or be subject to the provisional laws,
they would not have that underlying foundation of title or land title that needs
to exist in order to rectify the other issues.
In terms of land management, there is an established land tenure system, upon
which our nations that are operational are building matrimonial real property
Ms. McKay: I do not know if we can answer that question, having not
posed the question, but I think one issue with the First Nations Land Management
Act is the backlog in implementation, even if that was chosen. That is one
reason why we were so adamant from the beginning about the need for
non-legislative measures. Without that they are empty rights anyway. If you do
not have those supports in place, you do not have access to justice, no matter
what the legislative solution is. Maybe the First Nations Land Management Act
would be acceptable, but if it does not have the necessary backing and support
we will just see a repeat in history.
Senator Dyck: The chair posed the question about a legislative gap. We
are assuming, therefore, that legislation alone will solve the problem. However,
I think it has been clear from every presenter than a non-legislative solution
is preferable. In terms of indigenous law we have had mention of sort of the
custom codes and common sense. How do we then pump up the non-legislative
measures? Do we then recognize indigenous laws and customary traditions as
opposed to a new federal law based on the Westminster model rather than an
Mr. Bear: What is most favourable to First Nations, rather than
legislation — whether there is consultation or not — passed by Parliament and
imposed on First Nations — which is an issue in itself — is to look to
Senator Mitchell: Thank you to each of you. When I first got wind of
this piece of legislation, I was hopeful that perhaps it would solve some
difficult problems which are recognized by everyone. Then, having spoken with
people like Senator Dyck and met with a variety of people and now listening to
you and the debate more generally, I am uneasy about what might be yet another
solution of non-Aboriginal peoples imposing a cultural value of some kind,
whether intentionally or unintentionally or explicitly or implicitly, on
Aboriginal peoples and making matters worse, not better.
I am a Canadian who values and respects my Aboriginal neighbours, and I would
like to know that there is a chance to fix these problems, particularly for
women who are so often disadvantaged in your communities and elsewhere in the
I was interested in what Chief Wilson-Raybould said about how you are
beginning to develop something in your own community that is solving this
problem or meeting this problem in some way. Could you describe that to us?
Could you indicate what prospect that might be for other communities? What
percentage of First Nations communities is actually developing solutions right
now in spite of or in the absence of this kind of legislation?
Ms. Wilson-Raybould: Thank you for the question. Where I find my
certainty or where I can speak with most confidence is talking about my own
community. Certainly Chief Bear has referenced those First Nations among the
First Nations in Canada that have operational land codes. A number of
communities are in the developmental stages of land codes.
My own community became operational in early December. One of the provisions
within our land code is the necessity to develop a matrimonial real property law
within a year. I am not by any stretch of the imagination saying or thinking
that the development of such a law in my community will be easy. We have put
together a land code committee. We try to be as representative as possible. It
consists right now of about 16 people, which is high, but we are grappling with
these issues. We are asking the policy questions around the development of these
laws and how and if it will work and ensuring those policy questions are
addressed in terms of actual practical application in our community.
Do I think we will be done in one year? I hope that we will but I am not
certain that will be the case. That is my experience in my own community.
I recognize that the majority of First Nations communities across this
country have not even started to grapple with these issues. That is not to say
they are not mindful of them, but the reality in our communities, as my friends
quite rightly point out, is grappling with these fundamental issues of violence
against women and the need to resolve those issues, of poverty issues in our
community, the day-to-day realities.
At the same time, a broader or more comprehensive solution or way forward is
to look at all of these issues in terms of nation building and finding that
comprehensive governance solution that our communities are looking towards, at
different levels of the continuum of governance but looking towards nonetheless.
That is where the ultimate solution to Bill S-4, matrimonial real property and
other issues will come from.
Senator Mitchell: One of the inherent problems verging on something
that may make this legislation disingenuous is that once it is passed,
Aboriginal nations, First Nations, will go back and develop their own laws, but
so many of them do not have the resources to do that. In your case, there are
people who can do it. You come from a First Nation with resources. Most do not.
If there were resources provided, could they do it without this piece of
legislation? I think we are arguing they could.
Ms. Wilson-Raybould: I hear your comments and agree with them. My
opinion is that First Nations engaged in the development of matrimonial real
property laws are already engaged in the development of matrimonial real
property laws. Passage of Bill S-4 will not necessarily be placed in every
community and every community will thereupon develop their own laws. That is
just not the reality.
In terms of providing resources, resources can assist, but resources are not
the ultimate answer. The ultimate answer, in my humble opinion, is the
empowerment of our communities to move forward, to build capacity and do this
fundamental development work that is so important for our communities in moving
forward. Resources from the government will help in this endeavour, of course,
and need to be provided to our communities to start the process that is driven
by our communities in the most appropriate way. I thank you for your comments
Senator Brazeau: Good morning and thank you for your presentations. It
is important that we are finally initiating and continuing this dialogue on the
gap that currently exists.
This process started in 2005, and the Assembly of First Nations and the
Native Women's Association of Canada participated around the 2005-06 years. Both
your organizations received funding from the federal government to hold your own
dialogues, consultations or information sessions, I believe in the area of $2.7
million each. I think the Native Women's Association of Canada in 2005 also made
a presentation to the United Nations Permanent Forum on Indigenous Issues
requesting that interim legislation be put in place on matrimonial real property
to fill the gaps that currently exist.
When one talks about introducing legislation that will affect the lives of
Aboriginal people, we often hear discussions surrounding the inherent right to
self-government. We hear a lot of the discussions surrounding the problems that
exist in the Indian Act. We talked about this nation-to-nation relationship, et
cetera. However, this current piece of legislation is about matrimonial real
property. It is about protecting the rights of women and, in particular, women
and their children in the case of marriage breakdown.
If I step back quickly, we had a piece of legislation a couple of years ago
in Bill C-21 with respect to repealing section 67 of the Canadian Human Rights
Act. Again, we heard a lot of the same dialogue with respect to
nation-to-nation, the inherent right to self-governance, governance models, et
cetera. That piece of legislation was also about, primarily, protecting the
rights of Aboriginal women and their children in terms of the discrimination
that exists in band councils towards women and also from legislation by the
federal government against Aboriginal women in particular, and that piece of
If I heard your testimony correctly, are you saying that you do not support
this piece of legislation as it is currently drafted? If so, does that not send
the message to grassroots Aboriginal women across the country in saying, well,
we do not support this piece of legislation; let us wait until we negotiate a
self-government agreement and, in the meantime, your rights will not be
protected in the case of marriage breakdown?
Even without this piece of legislation, there is nothing preventing any First
Nations community across Canada to enact their own legislation regarding this
topic. If this piece of legislation were to pass, it is an interim measure
because nothing will preclude any First Nations community to adopt their own
codes while this is in effect.
I am a little surprised that this has been a five-year process, and let us
face it; many changes took place following consultations in 2007 where many of
the recommendations by Wendy Grant-John were adopted into this current piece of
legislation. Why the hesitancy and opposition to its current form?
Ms. Wilson-Raybould: Thank you, Senator Brazeau, for your question.
With respect to the first question about whether or not we support this
legislation, in my submission, I pointed out the reality that this legislation
is flawed in its current form. I pointed in particular, and you referenced it,
to the need for the recognition of the inherent jurisdiction of First Nations.
There are innumerable technical problems in this piece of legislation. That
is not to say that not supporting the bill in its current form takes away from
the desire of our communities to support these women and children. Of course, we
support our women and children to have access to remedies to rectify the
situations they are in. However, this bill in its current form will not do that.
We had the discussion earlier in terms of access to legal remedies. Our First
Nations women or First Nations generally will not have the ability to access
these remedies in resources are not necessarily being provided in order to
access these remedies.
As we said earlier, in terms of a community, if this bill were to pass, would
a community adopt this legislation? No, they would default, more than likely, to
the provisional rules, and again, if the provisional rules are imposed upon a
First Nation, they would not be able to be enforced in a community.
Senator Brazeau: In real terms, are you saying that Aboriginal women
and their children who have a marriage breakdown today, for the most part, lose
the family home. They are displaced and the children are displaced. Are you
saying that there should be more of a highlight and importance on the
technicalities of this bill rather than the real protection and effects that go
Ms. Wilson-Raybould: No, that is not what I am saying, Senator
Brazeau. This obviously cannot be addressed at this table right now, but we will
be looking at those technical aspects and putting them forward for your review.
In terms of the reality of our First Nations women and our children, the
vulnerable within our communities, the point I was making is that this bill will
not address that reality, as my friend from the Native Women's Association
indicated in her submission. Certainly I defer to the words of my friends at the
Native Women's Association in terms of this reality and the need for legislative
and non-legislative mechanisms to address these hugely important ancillary
issues in terms of this legislation.
The Chair: Thank you, chief. The Indian Act is silent, in that you are
not allowed to sign on to these without self- government agreements and various
other things that my colleague asked about. That is another discussion.
Thank you very much, Chief Bear, Chief Wilson-Raybould and Ms. Corbiere
Ms. Corbiere Lavell: You are absolutely correct in that we have the
responsibility to put in some measures to protect our women and our children. We
can see that happening with non-legislative measures, if they could be
incorporated into this bill. We are willing to do that to ensure that it happens
and does take place.
The Chair: Thank you so much. You can see our committee is interested
and committed to hearing everyone on this matter.
Betty Ann Lavallée, National Chief, Congress of Aboriginal Peoples:
Good morning, Senator Johnson and members of the Standing Senate Committee on
Human Rights. It is an honour to present to the committee today on the
traditional ancestral homelands of the Algonquin people.
I am a Mi'kmaq woman who has lived all my life on my traditional ancestral
homelands of Mi'kma ki, in part of present day New Brunswick. I am also an
Indian Act registered Indian with status to an Indian Act band managed by an
Indian Act-created band council that does not have the legal competency to
represent my interests as an off-reserve woman. Although I live off reserve and
am a member of a native council, I am recognized as a Mi'kmaq woman and have a
traditional Mi'kmaq grand council with treaty and Aboriginal rights, my
traditional laws have yet to be accepted. On the other hand, I am one of the
very fortunate Aboriginal people who can at least turn to the existing law off
reserve if my marriage were to break up. On reserve, my brothers and sisters
facing spousal breakup have nothing, save the Indian Act, which we know does not
protect and does less to promote the fundamental rights of human beings.
Since 1971, the Congress of Aboriginal Peoples has represented the rights and
interests of non-status and status Indians and Metis Aboriginal peoples living
in urban, rural, remote and isolated areas throughout Canada.
The Congress of Aboriginal Peoples, CAP, has always cherished Aboriginal
women because women create life and are the continuum of our communities.
Mi'kmaq women have always been the decision makers on social, cultural and other
matters of well-being of the family. This continues to this day, even though
Indian Affairs has continued to promote and support patrilineal approaches to
Emma LaRocque, a noted Aboriginal scholar, has said the colonization has
taken a toll on all Aboriginal peoples, but perhaps it has taken its greatest
toll on Aboriginal women. We are slowly seeing the dismantling of the Indian Act
and the associated problems created by this outdated act that consistently finds
itself charged with human rights violations. Women, men and children continue to
endure discrimination and violation of their fundamental human rights through
the Indian Act. Its sole intent was and continues to be to define who an Indian
is and where an Indian belongs.
We as indigenous peoples continue on our homelands with our histories that,
in many cases, span over 10,000 years of human experience on these lands. CAP is
very happy that this government is acting to protect the rights of the
Aboriginal peoples of Canada and is moving forward with a suite of strategies,
plans, initiatives and acts that promote, respect and evaluate the dignity and
worth of all the Aboriginal peoples of Canada. We are happy that in the case of
the MRP, the government is concerned with dignity and worth of on-reserve
spouses and their children who face marriage breakups.
Let us look at the suite of changes moving the relationships forward and that
aim to evaluate the human dignity and worth of the Aboriginal peoples in Canada,
looking at the person as a human being. We have political and financial support
with an extensive compensation package issued for a majority of the survivors of
residential schools. The government has announced the continuing support and
celebration of an event with the Governor General on the establishment and
launch of the Truth and Reconciliation Commission this past fall. In June, there
was an announcement and rollout of the forward-looking Framework for Economic
Development with its four key pillars. The framework is accompanied by the new
Aboriginal Skills and Employment Training Strategy.
In May of 2009, we had the repeal of the Section 67 from the Human Rights Act
that barred recourse for actions taken under or through the law and intent of
the Indian Act. This repeal of Section 67 from the Canadian Human Rights Act
through the introduction of Bill C-21, and the accompanying work ongoing to
prepare on and off-reserve Aboriginal Peoples to first understand and then meet
the challenges of ending a legal bar against launching human rights violations,
is a big cause for celebration.
We have Bill C-3, an initial response to a court decision denouncing the
Indian Act registration process and, with that, the promise to convene serious
working tables to explore the whole issue of registration, membership and
citizenship — human people issues.
On March 31, the government held a commemorative event to recognize that from
1960, it has been 50 years since an act was passed by the Conservative
government to grant to Indians of the Indian Act the right to vote in federal
elections without having to enfranchise themselves as Indians.
Canada has advanced several cautious steps to providing a political solution
to the McIvor decisions. A clear signal is to resolve matters
politically, rather than through courts. The issue is complex. It took a long
time to create a paper Indian; it will take some time to replace the Indian Act
manifestation with the real Aboriginal person within the Canadian fabric as part
of the federation of the peoples of Canada.
CAP this past fall had an engagement process on the Indian Act where CAP
delegates shared at an AGA the horrors of human indignity that the Indian Act
registration process unleashed on human beings. The government is setting up a
separate exploratory process to learn about membership, registration and
citizenship. This falls in line with our third recommendation, which we produced
in our information booklet about the McIvor case.
I feel confident that this government will soon announce the adoption of the
United Nations Declaration on the Rights of Indigenous Peoples. This
international human rights document brings Canada once again to the forefront as
a defender of fundamental human rights, most significantly, the rights of the
indigenous peoples of Canada as well as those throughout the country.
We have the Prime Minister's invitation to the national Aboriginal
organization, to meet with him and share with him our goals, aspirations and
priorities. This is not a one-time meeting or request; rather, it is an honest
overture for continuum of ongoing meetings with the Prime Minister and NAO
leaders. CAP strongly supports the matrimonial real property act.
This suite of actions over a short time is significant to the Aboriginal
peoples of Canada and Canada itself. The government clearly recognizes the
humanity of Aboriginal men and women. The MRP act has more significance than
meets the eye because it goes right to the heart of the issue, namely, the
dignity of the person. The bill addresses the real human issue of an Aboriginal
person, something taken for granted by all other Canadians and provincial
governments. A spouse within an Aboriginal relationship should not be denied or
put out on the street without any recourse because of a family breakdown. That
has been happening for far too long in Canada.
For many years, we have been calling for an effective matrimonial real
property regime to protect spouses who are forced to leave a reserve. We have
gone through the Royal Commission on Aboriginal Peoples process, RCAP, three
parliamentary committees, the Senate committee on Human Rights and our own CAP
specific process on matrimonial real property. In addition, various UN bodies
have focused on the need to address the issue of matrimonial real property on
reserves. They have told Canada that these violations are not compatible with
Aboriginal men and women living on reserve face unfair and unconstitutional
discrimination when they are barred from exercising their right to a fair share
of matrimonial real property after the breakup of a marriage or common law
relationship. It often means that a spouse and child have to leave the reserve
and are forced to start over in a non- Aboriginal environment without any
outside help or help from any Indian Act agency. These men and women frequently
approach CAP provincial affiliates seeking services and supports, which we do
not have the resources or capacity to provide. This places CAP in a very
difficult position, and these men and women are forced to turn to shelters.
Faced with this hostile environment without support, many return to a familiar
but sad relationship and the cycle re-enacts itself. Sadly, the victims of abuse
are the ones forced to leave the family home because there is no recourse for
enforcement, counselling or determination of accessing proceeds for the
matrimonial real property.
CAP's view is that Bill S-4 is a positive and significant step toward
recognizing the dignity and worth of the Aboriginal person. That important
aspect of Bill S-4 is often lost.
Finally, the government is taking a bold step to ensure that the Aboriginal
spouse and his or her children on a reserve have legal recourse and can expect
equitable distribution of matrimonial property assets and enforcement in the
event of divorce, separation, family violence and death. Any measure that
improves the lives of Aboriginal women, men and children and protects their
rights, dignity and worth as human beings is worthy of our support and the
support of both chambers of the Parliament of Canada. Promoting the dignity of
the person does not erode treaty or Aboriginal rights.
A spouse and child without a home have nothing. A home is the foundation for
the beginning of a healthy and nurturing lifestyle. Sometimes spouses fear
retribution if they come forward with their stories. Coming forward requires a
great deal of courage, particularly in a small reserve where everyone is part of
the extended family. Currently, when a marriage breaks down, the husband can
force his wife and child to leave the home, or vice versa. There is no legal
recourse for these people; they become homeless and are often forced to move off
the reserve. They receive even less support off reserve and if they are lucky,
they can move into a shelter, if and where a shelter exists.
This blatant practice of discrimination and human indignity must end. For
years Aboriginal women and men have been struggling for recognition of their
worth, their dignity and their rights. Let us have the courage to provide the
legal tools for Aboriginal spouses and their children to use the rule of law on
reserve as their brothers and sisters can now use it off reserve.
Finally, a government has heard their call, which CAP has made for many
years. This government has taken action with the matrimonial real property act.
By taking this national approach, immediate protection will be provided and will
be consistent right across the great federation of Canada. The Indian Act band
councils will have the right to develop matrimonial real property laws to apply
on their reserves, which reflect their culture and social traditions with
respect to the provisions of the equity of the law.
Bill S-4 recognizes that communities are best placed to make decisions
related to the matrimonial property rights. From a practical perspective, we are
pleased to learn that the government plans to set up centres to deliver training
and information sessions for law enforcement and court officials. CAP wants to
ensure that women and men who live on a reserve have the capacity to acquire
their share of the matrimonial real property and can begin a new life. CAP wants
to ensure that the women or men leaving the reserve do not leave hopeless,
without money and without recourse.
The issues we are dealing with are not simple. They never are when we are
dealing with the human essence of a person and a family, particularly when there
is pain and betrayal of trust. The issues are challenging and will require the
development and the implementation of effective initiatives and action plans. To
this challenge, CAP is prepared to come forward and work with the government.
CAP is prepared to ensure that information and a helping hand can and will be
available to Aboriginal spouses and children who are in the midst of a marriage
breakdown. These spouses and children will need help as they may have to leave a
reserve, a familiar community, a home, and will need to rebuild and begin again
The Chair: Thank you so much Chief Lavallée. We will now hear from
Grand Chief Randall Phillips from Ontario.
Randall Phillips, Grand Chief, Association of Iroquois and Allied Indians:
[Mr. Phillips spoke in his native language.]
Good morning honourable members of the Senate committee. My name is Randall
Phillips. I am elected Grand Chief of the Association of Iroquois and Allied
Indians, a political organization that was founded 41 years ago with the express
intent of supporting and protecting the treaty and Aboriginal rights of First
Nations. It is from that perspective that I make my presentation today.
I am here as a representative of our member nations to present their
collective concerns regarding this bill. My presentation will focus on three
sections. I will discuss the letters that I have received from our two community
women chiefs, I will go through a list with respect to some of the concerns that
we have with the bill, and third I will identify some recommendations.
We are here to oppose the bill as it is written. We agree 100 per cent with
the principle that the issue of matrimonial real property division needs to be
reconciled, but that it needs to be reconciled within our home communities. We
do not believe that such provisions are contained in this bill. As a matter of
fact, there have been many statements with respect to this bill focusing on
women and children. Yet, the bill is entirely absent of any language that talks
about protection of women and children. In fact, a couple of references in the
reconciliation features maintain that the bill is about non-native people. We
have some problems with the basic intent of the bill as it may produce greater
I would like to read a letter from our Chief Laurie Carr, who is elected
chief Hiawatha First Nation.
Good morning senators; on behalf of my community of Hiawatha First
Nations, I would like to say thank you for allowing Grand Chief Randall
Phillips to read my statement on my behalf.
I have prepared just a brief message as I was unable to attend; however,
I know Grand Chief Phillips will represent all of the association, both male
and female, equally and respectfully.
My name is Laurie Carr and I am chief of the community. Hiawatha is
located on the north shore of Rice Lake, here in Ontario. We have a
membership of 438 people, with just over three quarters of the membership
consisting of men and women.
Our community is opposed to Bill S-4 as it will create continued hardship
to our members and our community as a whole. This bill will only cause
further poverty and oppression, as our people will not be able to afford
provincial courts decisions and/or settlements.
First Nations property assets are valued at less than half of what
properties are valued off First Nations. Banking institutions will not
extend loans and mortgages to First Nations, as they are unable to use our
property as collateral, therefore, leaving our people to pay a provincial
court decision settlement without any financial support except that of their
employment, which many of our people struggle now living month to month.
First Nations already rank sixty-eighth in a country that ranks fourth
richest in the world. Our people are already living in Third World
conditions and this Bill S-4 will only deepen these conditions.
Further to just this one example of many in regards to the financial
hardship, this bill is in opposition to our Aboriginal treaty rights. This
bill will allow the province to make decisions on First Nations where they
have no jurisdiction.
Our people need the opportunity to create our own law where matrimonial
property is concerned, not a government where most of its representatives
have never learned of or set foot on a First Nation.
Governments need to stop telling us what is best for us. We know what is
best for us and creating our own law is what is best. Our law would be
created with our own values and principles by the grassroots people, the
elders; a law for which we know is fair, respectful and equitable to all
women, children and men.
I would like now to read a letter from Chief Louise Hillier.
Greetings; my name is Louise Hillier. I am chief of the Caldwell First
Nation. The traditional territory of the Caldwell First Nation extends from
Amherstburg to Long Point. Caldwell is situated on the southern most part of
Ontario in Canada. We are a custom band and our members are originally from
the Turtle Island and Bear Dodems. Our band population is 295 and of that
total, 53 per cent are female members.
Caldwell First Nation members opposed Bill C-47, Bill C-8 and continue to
oppose its replacement, Bill S-4, for many reasons. First Nations have
treaties and those treaties guarantee us the right to govern ourselves
independently of the Canadian government. The provincial government has no
right to create, to legislate laws that will override and dissipate our
treaty rights; laws that will adversely impact First Nations people, without
their prior consultation, without due diligence and without proper impact
When the visitors first arrived at our shores our nations were abundant,
vibrant, healthy and strong. If not for the intervention of our people, the
first visitors would have perished during the first seasons. Our lives are
rich in knowledge, wisdom and life skills. Our traditions, ceremonies,
cultures, laws, ethics, morals were solidly ingrained in every man, woman
We shared our wisdom, knowledge and life skills with the new visitors,
and when they learned what they needed to feel comfortable and secure and
the ability to survive in this land, then they began to take from us.
At the heart of First Nations is kindness and sharing. We understand that
we have always embraced the concept of collective rights. We have always
shared together and together we care for all that the creator has placed
Matrimonial real property is not a bill created to save women and
children from oppression and exploitation. This bill will destroy the
framework that holds poverty at arm's length. This bill will promote
divisions that will erode the carefully woven fabric that binds together the
collective unity of our First Nations communities. This bill will introduce
more foreign concepts into our realm that were not asked for and for which
we have no desire or need.
Well-meaning government, church and other non-native people thought First
Nations people needed to be educated in their culture, but they did not ask
us if that is what we wanted and today we suffer from all the "goodness"
of the residential school system. Matrimonial real property is another
government experiment that will, in my mind, equal the horrors of the
residential schools. Once the government has broken down our culture and our
right to self-government, how many generations will it take to reinstate
what we value over individual ownerships? Why should non-native people
believe they have the right to make assumptions about what they think is in
our best interest?
I ask for my nations and for other First Nations and for our women, who
we value because they are the core of our family, and for our children,
because they are our future; please do not adopt Bill S-4. Do not rush Bill
S-4 through Parliament. Practice due diligence. Do the research. Do the
consultation with each First Nation and hear what we have to say and do not
push this bill forward. Please allow our culture to survive an attack. We
are capable of carrying our own. Step aside and let us do what we know is in
the best interests of our people.
Chief Louise Hillier.
I have had an opportunity to speak with several senators on this issue and
have outlined some of our initial concerns to them. We have submitted a report
to the clerk, which I understand has been received and is undergoing translation
Madam Chair, I will go through a list of the more pertinent points I believe
underlie our rejection of this bill.
Bill S-4 has been attempted on two previous occasions in the House of Commons
and each time it was opposed. There have been no significant changes to the
bill. No past recommendations were inputted. The bill is said to protect First
Nations women and children, but it only makes provision to protect non-band
members on reserve and does not make specific references to any First Nations
women. Bill S-4 is a violation of inherent treaty and Aboriginal rights to be
self-determined and self-governing, based our nation-to-nation relationship
established through treaties. Bill S-4 allows provincial courts to rule over
First Nations rules and INAC to regulate how First Nations rules are applied, if
at all. Bill S-4 is a continuation of oppressive policies and legislation which
undermine First Nations right to be self- determined and self-governing. The
bill is inconsistent with the inherent right to self-government recognized in
section 35 of the Constitution Act. First Nations have the right to exercise
their jurisdiction that governs them without the influence of legislation. The
bill dictates provincial family law rules on reserve and gives full discretion
to provincial court judges to order band members to vacate a home to a
non-native non-member if the non-member claims violence or damage to property.
The Supreme Court of Canada in Haida recognized that the federal
government is required to consult, accommodate and obtain First Nations consent
when there is action that could affect Aboriginal treaties rights. This was not
done in this case.
Bill S-4 will have a negative impact on First Nations' rights to govern
themselves. The honour of the Crown is always at stake in such decisions. The
duty to consult cannot be delegated to third parties such as AFN, the Native
Women's Association or Indian Affairs. Canada has a fiduciary responsibility to
protect the rights and interests of First Nations. Bill S-4 demeans First
Nations processes and governments and gives authority to provinces to rule over
First Nations governance and give property and land rights to non-band members.
A First Nation can make its own MRP laws, only if they are approved by the
minister's appointed verification officer and do not contradict Bill S-4. The
bill imposes the use of a verification officer to approve and oversee a First
Nation law- making process. The verification officer has full discretion to
approve or disapprove a proposed First Nations law. The use and authority of a
verification officer is similar to that of the old Indian agent.
The bill also requires that a community ratification process occur on laws
that are developed for MRP with no resources committed to such a process. Our
elections alone cost us $30,000 for communities, so if we talk about a
ratification process, again, it will have a hardship on our communities.
The ratification of laws exists at no other level of government in Canada.
This is a violation of the Canadian Human Rights Act. Non-natives and others may
gain the right to compensation on the value of homes, land and other properties
located on First Nations territories. Compensation of the value of a home to a
non-native is determined by provincial rules of family law. This will allow
non-native members to gain rights to First Nations lands. The government may
argue that First Nations are seeking money, but a First Nation cannot make its
own law under this bill without a law being developed that is consistent with
Bill S-4, which requires resources, and a law cannot be authorized without a
ratification vote. Under Bill S-4, First Nations under delegated authority can
develop their own laws for matrimonial real property to replace the federal code
if it is approved. No resources have been identified by the federal government
to help with the ratification process or the law-making process. It is not
realistic for most First Nations to undertake law-making processes without the
proper resources or capacity. When we talk about that, it is not just a matter
of a piece of paper that says it is a bill, but actually the components that are
necessary to enact that bill, like the justice system or anything else like
Contrary to the Royal Commission on Aboriginal Peoples, RCAP recognized that
First Nations do have jurisdiction in the area of family law and do not require
the consent of the federal or provincial government in order to enact First
Nations laws in this area. Bill S-4 proposes that a provincial court system may
be the best place to make decisions regarding family breakups on reserve.
Colonial practices overrode First Nations practices and historically made them
illegal to practise. Bill S-4 is a continuation of colonial practices that have
led First Nations to poverty and homelessness.
Traditional forms of mediation and alternative dispute resolutions such as
elders' councils and circles must be recognized and utilized. Proper resources
must be allocated in order for First Nations to progress beyond paternalism and
colonialism. Numerous studies show that First Nations that have limited
government interference and that utilize their own culture and traditions have a
dramatically improved socio-economic condition. Numerous studies show that First
Nations that have limited government interference have dramatically improved
The proposed legislation does not address poverty, housing or equality. Bill
S-4 proposes to govern and rule over First Nations chiefs and council where
there is a marriage breakdown or death of a spouse. The bill proposes that women
and children will be left homeless and distraught without the power of the
government's provincial courts to oversee First Nations. However, government
policies, regulations and legislation continue to restrict First Nations from
adequate housing, adequate land base and adequate resources to fully develop
their own systems.
With the impact of McIvor and what Bill S-4 proposes, more people will
have rights to First Nations housing and land base, which has deteriorated from
100 per cent ownership at time of contact to less than 1 per cent today. Despite
the lack of housing capacity and resources to address matrimonial real property
and domestic situations, First Nations will be left with a burden of housing
more people with limited resources.
Bill C-8 was not First Nations, and I think that is important given the fact
that this piece of legislation will only impact on First Nations and not on
off-reserve or non-native people. The bill was publicly condemned by the Native
Women's Association of Canada, the Assembly of First Nations Women's Council,
the Quebec Native Women's Association and other First Nations groups across
With respect to the recommendations, Madam Chair, AIAI recommends that
studies or reviews be ordered to fully understand the impacts of the proposed
matrimonial real property laws on reserve. In fact, what are we talking about?
What is the number of women we have heard here? We have heard many general
expressions that native women on a constant basis are getting thrown out of
communities. I would like to see some facts and figures that outline those
figures. AIAI recommends that references to First Nation women and children
being displaced or abused as a result of the absence of legislation like MRP be
accompanied by factual evidence. AIAI recommends that more hearings take place
to allow First Nations leadership and native women's groups the opportunity to
present. AIAI also recommends that Bill S-4 fully consider past recommendations
on Bill C-47 and Bill C-8 by these other associations.
In absence of any recommendations above, AIAI recommends that Bill S-4 be
voted against. AIAI further recommends that with any further proposed
legislation or policy intended to address First Nations issues on matrimonial
real property, First Nations communities must be fully consulted in meaningful
consultations, accommodated in order to ensure that First Nations issues and
concerns are being met, and that First Nations provide reasonable consent for
such legislation or policy. This recommendation is to ensure that the Government
of Canada's processes are consistent with the Supreme Court of Canada's decision
such as Haida.
Danalyn MacKinnon, Barrister and Solicitor, as an individual:
Honourable senators, I am a partner at the firm of Beamish MacKinnon. I have
been practising law for 21 years. Our practice is located in Northwestern
Ontario and we serve almost exclusively First Nations communities, bands and
Our area of Northwestern Ontario runs from Thunder Bay in the east to the
Manitoba border, approximately 900 kilometres; and from the border with the
United States to Hudson Bay, a distance of at least 1,000 kilometres. Our
practice is located in Sioux Lookout, in Dryden, with the majority of our
clients located in fly-in First Nations communities north of Sioux Lookout.
I became involved in this issue of matrimonial property on reserve in the
late 1990s, because of my practice in family law involving mainly the laws of
Ontario and the Divorce Act. I participated in the focus group that resulted in
the discussion paper by Wendy Cornet. I have appeared before the House of
Commons Committee on Indian Affairs on this issue. I do not represent any group
Thank you for your invitation to appear before you regarding Bill S-4. I am
honoured to be here and I hope that my comments will assist this committee in
its deliberations related to this bill.
I approach the examination of this bill from the perspective of a family law
practitioner in my area. For each individual, there can be times of severe and
serious crisis. This is never truer than when a marriage or relationship breaks
down or a partner dies. Our identities are so interwoven into these primary
relationships as spouses, partners, and parents, that the loss of our
relationships and of our role in a family unit can trigger a loss of our sense
The difficulty is compounded by the reality that in many isolated
communities, the extended family and the community are the same unit. It is one
of the most heartbreaking and tragic circumstances. At that time, each family
lawyer is, in my opinion, charged with the responsibility of demonstrating to a
client that there is hope for the future and that there are avenues for the
resolution of the issues that the person confronts without resort to desperate
and sometimes violent means.
I have reviewed Bill S-4 from that perspective and from the perspective of
looking at what options I can give clients and what problems can be resolved by
this legislation. The client that sits across from me will ask, "What can you
do?" At that time, they want real and concrete processes and procedures; they
are not interested in positions or politics. Looking at Bill S-4, on the whole,
I believe that this bill needs to be enacted and that it is essential. Without
it, there is no process or procedure for any clients who attend before me. It is
also comparable to similar legislation in the provinces and it is a furtherance
of the 10 years of work on this issue. Some of its positive components are that,
at least in principle, it recognizes the right of self-government of
communities; it provides a mechanism for emergency orders for possession of the
home in urgent circumstances; it provides a review of those emergency orders; it
recognizes the rights of children and others who reside in the home; it provides
a formula for the sharing of the value in the home on separation; it includes
married and common law relationships; and it is gender neutral in its terms.
This bill will provide a resolution for those MRP issues that we find in a
modern world. I leave it to the organizations representing First Nations as a
whole to speak to the broader political issues. They are the guardians of the
rights of First Nations people as a whole.
Turning to the legislation itself, I have some issues with some aspects of
the bill. First, looking at clause 7 of the bill, which is the power of First
Nations, subclause (1) states:
7.(1) A First Nation has the power to enact First Nation laws that apply
during a conjugal relationship, when that relationship breaks down or on the
death of a spouse or common-law partner, respecting the use, occupation and
possession of family homes on its reserves and the division of the value of
any interests or rights held by spouses or common-law partners in or to
structures and lands on its reserves.
The inherent right to self-government should be recognized and First Nation
laws should apply on First Nation territory. However, one must question what
type of laws related to the use, occupation and possession of First Nation homes
and the division of assets should be passed during a conjugal relationship. I
have no difficulty with these laws dealing with the issues at the point of
separation from or on the death of a spouse or partner, but the wording seems to
suggest that laws could be passed which would apply during the relationship.
Would these laws indicate who could live in the house, whether the house could
be visited by certain individuals, whether any children who are members of
another band could live there? This seems intrusive and unnecessary. I cannot
think of anything comparable. I note that the Family Law Act of Ontario provides
that its purpose is to "provide in law for the orderly and equitable settlement
of the affairs of the spouses upon the breakdown of the partnership. . . "
Do we really need to go further?
Clause 7(2) states:
7.(2) The laws shall include procedures for amending and repealing them
and may include.
(a) provisions for administering them; . . .
Paragraph (b) includes provisions for enforcing it by a court order.
The First Nation laws must have procedures for amending and repealing them.
This deals with the legislative element of the laws and is mandatory by the use
of the word "shall." This is a requirement, therefore, of the First Nation
I am concerned in this paragraph about the permissive word "may" in
relation to provisions for administering the laws of the First Nation. Every law
should have some process or procedure for accessing the rights that are
encompassed in the law. The First Nation can pass a law but no process for
accessing the rights. This would create a nullity. I believe that the word "may" should be changed to
I also make two further recommendations about mandatory considerations.
Perhaps there should be a requirement for inclusion of principles related to
natural justice such as the right to be heard and the right to be heard by a
fair and impartial body. Second, First Nation laws should include a mandatory
appeal mechanism, even if that mechanism deals with an appeal to a body within
the First Nation itself.
Number two is verification. Unlike clause 7, which sets out a few central
features of the First Nation laws, there are nine proposed sections, namely
section 8 to section 16, dealing with verification that the First Nation laws
have been passed in accordance with the expectation of the Minister of Indian
Affairs and Northern Development. A verification officer has to confirm that the
proposed community approval process is in accordance with the act. There is, of
course, something contrary to the concept of self-government in this. This
section is troubling because it speaks against independent and culturally based
passing of laws.
Number 3 is next. The definition of a common-law partner taken from the
Indian Act is "a person who is cohabiting with the individual in a conjugal
relationship having so cohabited for a period of at least one year." It is my
opinion that the period of one year is too short to endow any individual with
the rights set out in the act. While it is a consideration for a judge in
determining whether an order for equal sharing of the asset would be
unconscionable under clause 34(f), it does not appear as a consideration
related to clause 25 in regard to orders of exclusive possession.
Number four is emergency protection orders under clause 21. It must be
inferred that they are premised on open and transparent disclosure of all
material facts as such motions are brought without notice to the other party,
although this is not specified. The considerations of a judge under proposed
section 21(4) should also include whether alternate accommodation is available
to either party.
In regard to the emergency protection orders, the consideration related to
children is found in proposed section 21(4)(c), where it states that
there will be a consideration of the best interests of any child "in the
charge" of either spouse.
I have dealt with circumstances where the primary caregiver was forced to
leave the home and the children were left in the charge of the abusive partner.
Would this spouse have the stronger case because the children were in that
Throughout the statute, there is no reference to the status of child welfare
proceedings or orders or prior custody orders concerning the jurisdiction of
this legislation. These orders should be a consideration. It would be confusing
to have an order that parent A stays in the home with the children while a
custody or child welfare supervision order provides that the children should be
with parent B. There is the potential for the orders under this act to conflict
with those under custody and child protection legislation. This consideration
could be included into section 25(f).
I am also concerned that on the death of a parent, there is no right provided
for a child to bring an application for exclusive possession of the home. I say
that again because I have had a case where the single parent of two children
died suddenly and the boyfriend kicked the two children out of the home. They
were 14 and 18 years of age. It would be nice to know that in this legislation
they, or someone on their behalf, would be able to apply to have exclusive
possession of the home.
The act refers to the jurisdiction of the Superior Court of Justice to hear
property-related matters. In our jurisdiction, the Superior Court judges are
located in Thunder Bay and they travel out to Kenora only every second week.
There are no video facilities established for this court in the northern
communities, or even in Dryden or Sioux Lookout, although sometimes we are
allowed to use those of the Ontario Court of Justice. We no longer have a
sitting judge in Kenora.
It is difficult to see how an individual from a northern community who could
be as much as 600 miles away from me, would be able to access this court system.
It is costly; it is physically far away; there is no provision for the
application to be heard electronically; and clients would not likely be able to
attend in person, regardless of the requirements of court under the Rules of
Civil Procedure. In other words, there is a real problem with access to the
justice system in our area. Part of that is, of course, compounded by the
distances involved and also the lack of lawyers in our area.
We deal with as many as 20,000 people. Perhaps six lawyers practice family
law, and I would say one-half of that number does legal aid. Access to justice
is a real problem with regard to any kind of relief from the courts. We would
also have to be assured that legal aid would cover the cost of this type of
litigation, or again it would be inaccessible.
There does not seem to be much reference in the bill to alternative dispute
resolution mechanisms, even though many of the First Nations that we deal with
favour this approach.
In the future, in all areas of laws related to First Nations, there needs to
be the opportunity for a complete and independent justice system across the
North that can act as the mechanism for ensuring that the rights of individuals
are carefully balanced with the rights of communities in a traditional and
respectful way. There is a need for First Nation courts to deal with family
matters, alcohol and drug bylaws and the rights of citizenship. This is where
the real elements of self-government can merge with culture and tradition. This
is essential in the long run.
Again, I do not want my comments to be taken as suggesting this bill should
be abandoned. I believe it needs to be enacted and I have made suggestions about
some amendments that I think should be made. I am relieved that some legislation
is coming to fill this void as clients suffer because there has not been any
mechanism to deal with their issues to date. It is a void that represents a
denial of rights for individual First Nation spouses, their families and for
First Nation communities.
Thank you for the opportunity to make these comments.
Mary Eberts, Barrister and Solicitor, as an individual: Thank you for
the opportunity to address you on this important issue, and I thank the Senate
for its long-standing and continuing interest in the issue of matrimonial real
property. The Senate report, A Hard Bed to Lie In: Matrimonial Real Property
on Reserve, and subsequent engagement with the Minister of Indian and
Affairs and Northern Development on several occasions since the issuance of that
report, has made a big contribution to the push for solutions in this area.
I have been invited to participate today as an individual, but I would like
to advise the committee that much, if not all, of what I have learned about the
MRP issue on reserve derives from some institutional affiliations of mine, some
of which continue.
I have been counsel for the Native Women's Association in litigation against
Canada, begun in 1998, to seek a remedy for government failure to act after
findings by the Supreme Court of Canada that provincial family law does not
apply. That case is still in case management. I was a participant for the Native
Women's Association of Canada, along with the AFN, in proceedings before the
You have heard from the official representatives of the Native Women's
Association of Canada and my views today are my own. I do not represent the
Perhaps I can best say that I am here as a doctoral candidate at the Faculty
of Law at the University of Toronto. I began my studies in the fall, and my area
of focus is the relationship between the Canadian legal system and indigenous
laws, with a particular view to making the self-determination promise of the UN
declaration a reality.
I have a few points I would like to make. The first is that this legislation
does not respect the inherent law-making power of First Nations, no matter what
is said in the preamble. I think it is not correct to say, as Senator Brazeau
does, that First Nations can just go ahead and legislate regardless of this law,
although RCAP did make that proposal, saying that First Nations should initiate
law making. Unfortunately, the alternative First Nation laws cannot come into
effect under this legislation unless the process of verification has been
followed. There is a barrier in the legislation itself to First Nations making
their own laws, and that is a problem.
Second, there are barriers in the Indian Act to the development outside of
this legislation of a First Nation- originated proposal. One barrier is that
even where everyone agrees, section 22 of the Indian Act that will not allow an
interest in reserve land to be shifted from one person to another. A separation
agreement that everyone in the family agrees with cannot be implemented under
the Indian Act if it involves transferring an interest in land from a former
husband to a former wife, or vice versa.
Clause 7 of this legislation is, plain and simple, delegated power. It might
be interesting for you to know that the principles of the verification process
included there are a distortion of the verification process we find in the First
Nations Land Management Act.
I would like to draw a few important distinctions to your attention. The
first is that the verification process in the First Nations Land Management Act
originated with the nations that came forward and asked Canada to participate in
this alternative scheme. The result was a framework agreement that provides for
the verification process. This was not an imposition; it was a mutual decision.
Second, the framework agreement itself provides the principles that the
verifiers are to inspect for. They inspect what the nations are doing in order
to determine if the nations are complying with the framework agreement that they
voluntarily entered or opted into.
Again, there is an element of free will and agency on the part of the First
Nations, whereas in this legislation, although the same terminology is used, the
verification process is an imposition. It would be a mistake to regard the
verification process as anything but an imposition. It cannot claim legitimacy
because it uses the same language as the First Nations Land Management Act
because that act is based on consensus.
There is, in this legislation, no provision for the development of local
dispute resolution for the provisional federal government law. This is a huge
problem. The act is constructed so that First Nation law is all or nothing. Even
if you want to put in an ADR process to administer the provisional terms, you
have to go through the process that is set out in the act. This means that many
communities will be deprived of useful knowledge and a locally made approach to
the implementation of these provisions.
With respect to the First Nations Land Management Act, I agree with Chief
Bear that that is about as close as we get outside of the self-government or
comprehensive claims agreements to self-determining arrangements.
There are several problems with the meshing between this bill and the First
Nations Land Management Act. One of them is that the provisional federal
enactments in this bill can be much broader than what the First Nation has
enacted in the First Nations land management process. In this legislation, the
government is dealing with emergency procedures, which may not appear in the
First Nations land management statutes.
In addition, this legislation deals with issues of succession. A
straightforward land code to determine relations upon the breakup of a marriage
— which is what the First Nations Land Management Act does — will be less
extensive than the provisional requirements in this bill. Therefore, what you
have in this legislation is a potential problem of harmonization with the First
Nations land management system.
There will be elements of that system that do not track with what is in the
federal system. An issue may arise of someone who wants to continue to have
access to the federal provisional legislation and contest the opting out of
First Nations land management on the basis that a First Nations land management
First Nation has not substituted its laws for the statute. It would much better
if that problem could be fixed going in rather than result in extremely costly
litigation that will surely go to the Supreme Court of Canada.
My second point is that this legislation presents major capacity-building
issues that the government is not doing anything about. There are two areas of
concern. One is the capacity building of the First Nations to enact laws. Is the
First Nation enactment of laws under this legislation meant to be part of, or
associated in any way with the First Nations Land Management Act process?
There are suggestions in what the government has said and in the legislation
itself that some relationship between the two systems is intended. However, as
some speakers have said, probably more politely than I will, the First Nations
land management process already seems to be grossly under-resourced. There are
over 600 First Nations in Canada, with only a few fully up and running with
their own land code; these are operational First Nations. There are more
developmental First Nations, but even there we see resource problems. The last
report that I could find of the resource centre and the First Nations land
management board, 2008-09, suggested that there is no money to do to
environmental management agreements between operational First Nations and
Canada. Even though these are required by the act, they are not being done
because there is no money to do them. Even the operational nations are not fully
up and running.
With the developmental nations, we heard in the work of the ministerial
representative that there is a very long list of First Nations that are anxious
to get into this process and cannot do so because there is not enough money
flowing to the land management board.
There was a study by KPMG on the cost and benefits of the First Nations land
management process, which may shed some light on how much money is needed to
make this service or facility more widely available. It is a big problem.
The second huge capacity-building problem is with respect to those who want
to use this legislation. There is virtually no family law legal aid in most
provinces. Family law legal aid has been falling like ninepins across the
country. Those little hide-aways for family law legal aid that used to exist are
worn down to a nub. As my colleague from the Ontario Bar Association remarked,
in many remote locations there are few or no lawyers, or not enough lawyers.
Remember, if one member of a couple lawyers up, the other one cannot use the
same lawyer. You have to have a critical mass of lawyers that understand family
Even if lawyers are available, they may not understand how the First Nations
land system works. Even if they do, who is to say that the judges will be at all
useful in this process? We have many cases already decided, like the Supreme
Court of Canada in Laval, the Supreme Court of Canada in Mitchell,
the Chief Justice of B.C. in Delgamuukw and the Supreme Court of Ontario
in the Temagami case. I could go on. This shows that in many courts,
there is very little understanding.
Even Chief Justice Lamer tried to understand First Nations law. The product
of any court trained in the Canadian or Anglo-Canadian legal system will not be
First Nations law and is unlikely to be First Nations friendly, as we can see
with the huge problems that have been generated with the case law under section
35 of the Charter.
The other thing is the need for shelter may be just one of the legal crises
facing a mother in a violent situation. I echo the comments again of Ms.
MacKinnon. There will be children's aid proceedings where there is a violent
home. In many areas, there is no support for a parent who wants to keep custody
of her children as against the state. There is no legal aid funding for that
woman. Sometimes the First Nations try to provide funding but, in the vast
majority of cases, I would say there is no such funding. Therefore, these people
are under attack from all fronts.
This legislation may work to the extent that people on reserve approximate
themselves to the situation of well-to-do, non-Indian, urban families. That is
what can be said of the system that is put in here because it is a copy with a
bit of tweaking of provincial family law, provincial emergency orders
legislation and succession law reform. It does not account for the fact that
on-reserve housing in many places is in desperately short supply, in poor
condition and already subject to overcrowding and that land on many reserves is
an inadequate supply.
Women needing resolution of marital disputes will have other issues as well
as violence and poverty because of the lingering effects of Bill C-31. In the
Thomas Goodson inquiry into the shooting death of Connie and Ty Jacobs in
Alberta, Judge Goodson found as a fact that one of the problems in that case was
that Connie had been forced to assume membership in the Tsuu T'ina band upon her
marriage to Hardy Jacobs. The Jacobs family itself was an import to Tsuu T'ina
from Ontario. Jacobs is a Mohawk name from Ontario. When her family life started
going sideways, she had no community to help her out.
The same thing happened in the Gratia Bunnie case in Saskatchewan
where a woman, married to a chief, was actually denied band membership for many
years by the band. When the chief died, the band tried to expel her and her
grandchild from the home they had shared with the chief. They did so by not
allowing the little girl to go to school, not picking up the garbage and so on.
The long tale of the Indian Act registration provisions drags itself across the
plight of women and children in these circumstances.
I find myself wanting to recommend to you some non-legislative measures. I
find myself also all too aware of the fact that you are the Senate and I ask
myself: Should I try to initiate or recommend any legislative amendments that
smack of being a money bill? I will try to side step that by averting to some
other features of legislation such as Bill C- 31 and Bill C-21, providing for
the amendment of the Human Rights Act.
The best I could come up with here as a way of dealing with this legislation
is to have a relatively short reporting period. I take the point of the Native
Women's Association of Canada that emergencies are happening all over the place,
and women, by and large, as has been found by two or three parliamentary
inquiries, are, generally speaking, the ones who leave with their children. We
do not need a very long period but nonetheless a reporting period in which there
is to be some concerted capacity building on the part of the government working
with two groups.
One element of capacity building is with the First Nations and the First
Nations Land Management Act people to develop a capacity to have these First
Nations land management systems into which the family law codes will be placed.
You really cannot have a family law code unless you know what it will fit into.
If you try to make it fit into the Indian Act system, that will not work
because, as I said, there are barriers in the Indian Act to what you might want
The capacity building, what is needed? What is necessary? What money is
necessary? What steps are necessary in order to bring capacity building on the
part of First Nations to the point where people will be comfortable doing it?
The second element of this is capacity building for women. I am picking women
not just because I am a lawyer for the Native Women's Association of Canada in
some of my other lives but because it is very well documented in the Aboriginal
health and healing movement that women in the community are the ones who fix
things. It is an extension of their traditional role, and they are the ones who
have put together the knowledge about violence, who have put together some of
the most innovative healing programs. Capacity building for women in the area of
violence, in the area of measures to be directed towards violence and in the
area of dispute resolution and the use of traditional methods of dispute
resolution in this area.
This recommendation is to have it part of the bill that there must be
capacity building and there must be a report back to Parliament, both houses,
within say a year on what has happened in capacity building. Then if there is
insufficient capacity building, I will leave it up to you as to what happens.
Maybe I will sue someone if there is an inadequate response to the capacity
That seems to be one of the ways we could get a hold of this problem. Right
now, the only capacity building that the government has identified is for police
and judges, and that is just a continuation of colonialism, with all due
Senator Nancy Ruth: Thank you all. I want to ask questions about the
verification process, particularly to Chief Lavallée. As you have heard, Grand
Chief Phillips and Ms. Eberts have made many comments about this process, but I
am curious about what your view of the community ratification process,
particularly the role of the verification officer in light of everything that
has been said and the fact that people off reserve get to vote.
Ms. Lavallée: The reality of the situation is there must be a
verification process to ensure that the issue is working to the benefit of the
community. This issue can no longer be ignored. In this day and age, as an
Aboriginal person who has consistently lobbied Canada to sign on to the UN
Declaration on the Rights of Indigenous Peoples, it would be hypocritical to say
you are not doing your job to protect our human rights while being perpetuators
of human rights abuses against your own people.
Senator Nancy Ruth: In terms of ratifying the process?
Ms. Lavallée: That would have to be a community decision based on the
voting laws of that particular community.
Senator Jaffer: I have been very concerned since reading this bill. As
I can ask only one question, I will ask it of the two lawyers.
My concern is that we are creating different rights for Aboriginal women,
inferior rights compared to the rest of Canadian women. For example, clause 21
only applies for 90 days. The survivor can only stay in the house for 180 days.
What happens after that? This bill raises expectations, so you think you have
rights, but you only have rights for 90 or 180 days. Are those really rights?
That does not happen if I go to provincial court and get a right of occupation.
It is not for 90 days; it is for as long as the court orders. This is creating
different rights. I would like your comments please.
Ms. Eberts: It is true that those initial orders are for a relatively
short period of time, but the intention of the bill, as I understand it, is to
provide the opportunity for the person to catch her or his breath and then bring
an application for a more extended right to occupy. You can only have the
emergency order for 90 days, but then you can apply for a more permanent order.
The same thing applies with the survivorship.
I take your point that there is a concern about Aboriginal women having
inferior rights to those of non-Aboriginal women, but I think we are now in a
situation in this country where non-Aboriginal women do not have very good
rights either. I am not saying that I endorse a race to the bottom. I am saying
that all women are in very bad shape. Trying to give Aboriginal women the same
rights as non-Aboriginal women is, frankly, not a good standard because the
rights of non-Aboriginal women are deteriorating. The better standard is to give
Aboriginal women a plenary set of rights that will answer the problems that they
have and not just say, "Well, you get the same as your sister down the road, who
does not get much."
The Chair: We can do another round next week, if you would like to
Senator Baker: We need all day. As the witnesses have pointed out,
this will be a bit of a confusing mess. The expectation is that one who is
subjected to any of these orders or who is involved in a situation under this
bill would have legal representation. As has been pointed out, there is no legal
representation in family law to speak about.
You are absolutely right that we cannot amend the bill to involve an
expenditure of money, so that is not an option. I suppose if the matter were
being adjudicated by a Superior Court judge, he or she has inherent jurisdiction
to approve legal expenses if he or she so wishes, but that is not the case
because they are appearing before a provincial court judge. There is obviously
no answer to this. I do not what to ask. What would I ask?
Ms. Eberts has about 170 reported cases in case law. She is before the
Supreme Court of Canada every second day, but she has not made a substantive
suggestion to us as to how to get over this problem that these people will be
faced with. Ms. MacKinnon, I do not know how we do it.
Ms. MacKinnon: I can compare it to the child welfare situation that we
have in our area. There is a First Nation child and family services
organization. We no longer have cases in court except for terminating Crown
wardship. Otherwise, everything is dealt with within the community, the extended
family, the parents and the agency. For example, they use alternative dispute
resolution when real issues have to be dealt with. The entire community comes
and deals with the issue. There needs to be the flexibility in the bill for the
development of these alternative ways of dealing with these issues rather than
courts, lawyers and judges.
Ms. Eberts: I agree. A section giving the First Nation the ability to
establish alternative dispute resolution mechanisms, calling upon indigenous
traditions and indigenous knowledge, without having to go through the
verification process, would be valuable.
Senator Lang: I find it hard to believe that we are having to deal
with this issue in 2010 in Canada. I deem it a failure of our system and of
everyone who has been participating in it that we are not in a situation where
matrimonial property rights are not in law for the Aboriginal people of this
To follow up on your earlier statement, Ms. MacKinnon, in respect to the
question of eventual decisions being made within the community and within their
own customs and most things getting resolved, I ask the converse. I would think
that this legislation should be very positive. If it were put into place, given
that in some quarters or areas of Canada it is not seen to be acceptable, would
it not then be an encouragement for the enactment of local laws to be put into
place that would deal with this situation in a fair and equitable way?
Currently, we have nothing. It seems to me that is totally unacceptable. If
anyone around this table thinks we will design the perfect vehicle, well, that
will not happen. The reality is that we need a framework. I would like your
Ms. MacKinnon: It may be that the bill can be a catalyst for the
development of First Nations laws. The verification parts need to be removed,
but laws can be developed, and First Nations in my area are eager to develop
laws that deal with things related to their living in their community. They want
that ability to have the authority to do that under legislation.
It could be a catalyst for that to happen, but then the implementation of
those laws through a system is where there is the difficulty. You need resources
in order to even develop that in your own community where you are going to
actually have a process. The First Nations I deal with are eager to have their
own laws and to move towards being independent that way.
The Chair: Thank you very much. Senators, we have very little time
left on this round. I suggest we have no further questions. If you have further
questions, you can discuss it with the witnesses or ask for it in writing. We
have several witnesses waiting now, and we have to complete by 1:30. If you do
not like that suggestion, perhaps we can work through lunch and hope the
witnesses will continue to wait. My decision is to have no further questioning
today. We will be resuming some hearings next week if people want to come back
and speak to us again on any of these matters.
Thank you all very much. You have added tremendously to our discussions. We
look forward to reading your testimony again when we write our report.
William K. Montour, Chief, Six Nations of the Grand River: Good
afternoon, senators. My notes say "good morning," but I think we have gone
past the morninig.
The Chair: Chief Montour, there is so much interest in the bill, we
are over time. Thank you for your patience.
Mr. Montour: I am William Montour, elected chief of Six Nations of the
Grand River. We are the largest-populated First Nation in Canada. We have 24,000
citizens registered, approximately 16,000 residing on reserve. We are a small
municipality, if you want to look at it that way.
The confederacy was formed over 1,000 years ago to ensure peace and
cooperation between our nations. These nations are the Mohawk, Cayuga, Seneca,
Onondaga, Oneida and Tuscarora Nations. Currently, there are seven Iroquois
communities in Canada, Kahnawà:ke, Kahnesatá:ke, Akwesáhsne, Tyendinaga, Wahta,
Six Nations of the Grand River and Oneida of the Thames. Although we are
separated by distance, we recognize we are one people who share a common
identity, common responsibilities and our own system of law and government. More
detailed background on information on our communities is contained in our brief,
which was tabled with the clerk.
Bill S-4 essentially is the same as its predecessors, House of Commons Bill
C-8 and Bill C-47, which both died in the other place. I will go straight to the
point on the problems we see with the bill.
In 2006, when the federal government announced its intention to pass a law on
matrimonial property on First Nations, it set in motion an obligation to consult
with First Nations. This was confirmed by the Supreme Court of Canada. Any
action that affects the Aboriginal treaty rights of Aboriginal people requires
consultation, accommodation and/or consent. Since that time, the Assembly of
First Nations has expanded the definition of consultation to include free prior
and fully informed consent of First Nations. In 2006 Wendy Grant-John was hired
to advise the government on how to proceed with MRP law. She held discussions,
and we categorize that as discussions, with national Aboriginal organizations,
provincial and municipal organizations, and she made her recommendations in
Most First Nations in Ontario did not participate in the discussions because
they did not include the direct participation with all First Nations directly
affected by the proposed MRP law. The so-called consultations conducted by the
minister's representative did not fulfil the duty to consult recognized by the
Supreme Court or the AFN definition of consultation. Consultation with national
Aboriginal organizations does not count. The federal government must consult
with the right-holders, the First Nations. These governments signed the
constitutionally protected treaties that form part of the law of Canada.
Therefore, proper and legitimate consultation must take place with First Nations
Canada does not have the right to impose this law on First Nations. This bill
is inconsistent with the inherent right of self-government recognized in section
35(1) of the Constitution Act, 1982, and is therefore unconstitutional.
First Nations have the right to exercise their jurisdiction and to govern
themselves without federal legislation. First Nations did not give up their
right to self-government when they negotiated and signed treaties with the
Crown. The report of the Royal Commission on Aboriginal Peoples recognized
family law as a core jurisdiction of First Nations. Matrimonial property law is
a right and a jurisdiction of First Nations. Federal intrusion into this
jurisdiction is also a violation of our treaty of non-interference with the
It is important to note that the Six Nations of the Grand River will be
enacting its own matrimonial law within the next few months, based on our
inherent authority and traditions. This proposed federal law will directly
conflict with our law and create confusion in our community. We will not
recognize its application within our territory.
First Nations who have their own law based on their inherent rights should be
exempted from this law. Government officials have stated that women are treated
more negatively in the current application of matrimonial real property
disputes. However, we have not seen any statistical evidence that this is true.
It may be a popular conception; however, without the facts to prove it, the
basis for concocting this law may well be false.
At present, our government does not have the resources to track this and, to
my knowledge, the federal government has not done this research at Six Nations.
It may well be true that we have no way of knowing. Research on the potential
impacts of such a law have not been conducted and should be completed before any
law is introduced.
The very people the government say it is enacting this law for, the
Aboriginal people — and, in particular, Aboriginal women in Canada — are against
this bill. The Assembly of First Nations and the Native Women's Association have
both rejected this bill in its former form. Recommendations of the minister's
representative Wendy Grant-John were largely ignored. We have tabled a chart
that demonstrates this. For example, Wendy Grant-John recommended First Nations
concurrent jurisdiction through enabling legislation that respected Aboriginal
and treaty rights. First Nations law should be paramount over conflicting
federal and provincial laws. This law ignores those recommendations and purports
to create jurisdiction for us to enact laws. This is totally false. Ms.
Grant-John recommended a comparable scope of First Nation laws to provincial
laws of recognized resources, capacity and institutional development. Instead,
there are no resources attached to this bill. It appears the only capacity will
be for the department itself, through its announced centre of excellence.
Six Nations has had to dip into its own resources to engage the services of
an adviser to help develop our own matrimonial property law, but most First
Nations, who do not have the resources, will be stuck with the interim laws that
simply impose expensive provincial courts and lawyers on First Nation
The bill delegates or purports to create First Nation authority to pass their
own laws rather than recognize their inherent jurisdiction to do so. However,
the scope of the authority is restricted to laws addressing the family home,
structures and division of property and not the full range of family law issues
that arise when there is a marriage breakdown.
Our Six Nation law is a comprehensive law that addresses the property as well
as the best interests of the children and the nature of the family tenure in our
community. Ms. Grant-John recommended a law that would accommodate the diverse
laws, cultures and traditions of First Nations. Instead, we have a cookie cutter
approach that imposes a one-size-fits-all template.
Bill S-4 simply imposes provincial courts and processes on First Nation
communities, violating promises made during the discussion sessions. This means
that First Nation citizens will require lawyers to exercise or protect their
rights under this bill. However, no funding has been committed in this bill
leaving many impoverished First Nation citizens with no access to lawyers. In
northern communities, courts are located in urban centres and not close to
reserves, making it difficult for First Nations citizens to participate in
proceedings. There are native translation issues also.
At this time, I would like Councillor Ava Hill to continue with the
presentation. She has worked intimately with the development of law over the
past two years.
Ava Hill, Councillor, Six Nations of the Grand River: As the chief
said, we are developing our own law. We have had our own MRP committee in our
community. I am the chair of that committee. We have also worked with our
Iroquois communities mentioned earlier and we have our own MRP committee of
which I am also the chair. I will now continue with our presentation for Six
The most offensive parts the bill are the requirements for First Nations to
hold a referendum to be able to pass their laws and for the requirement of a
verification officer to oversee our law development process. The requirement to
hold a referendum to pass the law is racist. No other level of government,
including the Government of Canada, has to do that. We find this very offensive.
The verification officer continues the colonial mentality straight out of the
18th century and smacks of the days of the old Indian agent, when First Nation
citizens needed permission to leave reserves. This is 2010. This mentality must
change. We do not need any government to oversee any of the processes within our
communities. We can do it ourselves.
The bill imposes a 25 per cent voting threshold, meaning at least 25 per cent
of our electors must participate in the community ratification process. For many
First Nations still practising traditional forms of government, which use
consensus decision making rather than voting, this will prove difficult if not
impossible to achieve. This imposition of a minimum standard is also
unprecedented. No other type or level of government in Canada is required to
have a minimum percentage of electors. Imposing voting is unnecessarily
intrusive and contrary to many First Nations traditional systems of consensus
decision making. Six Nations may challenge this law, if it passes, for racial
discrimination under the recently amended Canadian Human Rights Act. The bill
does not recognize First Nations institutions, processes and approaches to deal
with marriage breakdown such as mediation, alternative dispute resolution, use
of elder councils and First Nation courts and tribunals. Six Nations envisions
using an Iroquoian tribunal involving members from the seven Iroquoian
communities operating much like a circuit court. It would use traditional and
contemporary customs and processes to administer fairness in decision making.
The principle negative result of marriage breakdowns is that one of the spouses
must leave the matrimonial home, sometimes including children. If adequate
housing were available, this would not be an issue. This issue will still exist,
regardless of who stays in the family home. This issue can be dealt with quickly
by having the federal government fund the full housing backlog needed among
First Nations. This could be done tomorrow and would immediately address the
main irritant connected to this issue.
Bill S-4 is also a violation of the United Nations declaration on the Rights
of Indigenous People that was signed by all but two nation states, Canada and
the United States.
Bill S-4 contravenes the following sections of the UN declaration: Article 3,
the right of indigenous peoples to self- determination; Article 5, the right of
indigenous peoples to maintain and strengthen their distinct political, legal,
economic, social and cultural institutions; Article 8, the right of indigenous
peoples and individuals not to be subjected to forced assimilation or the
destruction of their culture; Article 21, the right of indigenous peoples
without discrimination to the improvement of their economic and social
conditions, including the areas of education, employment and housing; Article
22, which provides that particular attention shall be paid to the rights and
special needs of indigenous women, youth and children; Article 27, which obliges
states to establish a fair, independent, impartial, open and transparent
process, giving due recognition to indigenous peoples' laws, traditions, customs
and land tenure systems, to recognize and adjudicate the rights of indigenous
peoples pertaining to their lands; Article 33, the right of indigenous peoples
to determine their own identity or membership in accordance with their customs
and traditions; and Article 34, the right of indigenous peoples to promote,
develop and maintain their institutional structures, and their distinctive
customs, spirituality, traditions, procedures, practices and judicial systems or
In summary, we have some recommendations to put forth. We are asking that
this bill be withdrawn and that a legitimate consultation process be conducted
with the rights' holders, who are the First Nations across Canada. We are asking
that any proposed bill be consistent with the recommendations of the ministerial
representative Wendy Grant-John. We have a chart, which we tabled with the
clerk, which shows the difference between this law and the recommendations made
by Ms. Grant-John.
We ask that any matrimonial property bill have an exemption for any First
Nation who enacts their own matrimonial property law based on their inherent
authority, and that any bill recognize the full jurisdiction of First Nations to
enact MRP laws based on their inherent authority and not requiring federal
delegated authority. Furthermore, any bill should not contain provisions
requiring a referendum, verification officer or voting threshold. Nor should any
bill impose provincial court systems on First Nations but allow for the full
expression of options based on First Nations customs and traditions. Adequate
resources and capacity building should be provided to First Nations that develop
and enact their own matrimonial property law, including resources for
implementation. Finally, any bill on matrimonial property should be consistent
with the United Nations Declaration on the Rights of Indigenous Peoples.
Angus Toulouse, Ontario Regional Chief, Chiefs of Ontario:
[Mr. Toulouse spoke in his native language.]
Honourable senators, I just introduced myself in my Anishnabe name, my spirit
name. I was speaking Crow. I am from Sagamok Anishinabek and of the Crane clan.
I am here today on behalf of Chiefs of Ontario and I, too, am urging you to
wholly reject this legislation, Bill S-4. As you may know, in 2006, First
Nations in Ontario chose not to participate in the government's consultation
process on this issue. This should send a strong message that this process was
flawed when the First Nations in Ontario, the province with the highest First
Nations population, refused to participate.
The issues associated with MRP, such as indigenous social structures,
political status and lands, require that the free, prior and informed consent of
First Nations be obtained prior to any federal action, and we assert that this
did not occur. Even the duty to consult and accommodate, described in Canada's
domestic case law, was not met by the government's so-called consultation
Instead of dealing directly with First Nations, the government attempted to
delegate their consultation duty to a special representative and
organizational-based discussions. The duty to consult, however, cannot be
delegated. The obligation rests with the federal government to consult the
rights holders, which are the First Nations communities, represented by their
As well, First Nations across Canada were given an extraordinarily short time
period in which to process all of the information and issues related to MRP, to
communicate this to their citizens, reach consensus and provide feedback to the
national Aboriginal organization. This was simply an unrealistic expectation,
especially considering the stresses that First Nations are already under to
fulfill their basic needs.
The process used by INAC to push the bill is inconsistent with the letter,
spirit and intent of key Supreme Court decisions such as Haida and
Sparrow. Land and family issues are so fundamental to First Nations
societies and cultures that First Nations consent is required before this bill
I submit that the free, prior and informed consent of First Nations must be
obtained on this matter, particularly considering the implications to reserve
lands and collective community harmony. This is the minimum standard that must
be achieved. It goes above and beyond consultation and accommodation. This is
the minimum human rights standard that First Nations are owed.
The process set out in Bill S-4 to pass local First Nation laws is colonial
and racist. It imposes a verification officer, who is a current-day Indian
agent, with the responsibility to oversee First Nation law making. It imposes a
community ratification process for law making on First Nation governments that
exists on no other level or type of government in Canada.
The imposition of a minimum standard renders the decision making process into
a numbers game rather than encouraging informed debate and discussion about very
important issues such as land, relationships and the well-being of women and
For many First Nations still practising traditional forms of government that
use consensus decision making rather than voting, the threshold percentages
established in this bill simply do not measure up to community-based decision
making standards. The standards established in the bill are drawn from Indian
Act and Department of Indian Affairs standards, which really have no rationale
other than the fact that that is what they are in other circumstances, such as
in the case of land surrenders and referenda.
Imposing voting is unnecessarily intrusive and contrary to many First Nations
traditional systems of consensus decision making. Canada does not have the right
to impose this law on First Nations. First Nations did not give up their right
to govern themselves when they negotiated and signed treaties with the Crown.
Bill S-4 delegates or purports to create First Nation authority to pass laws
rather than recognizing our inherent jurisdictions, which we believe is contrary
to the Constitution Act, 1982 and the federal government's so-called inherent
The bill instead imposes provincial courts and processes on First Nations
communities. This means that First Nations citizens will require lawyers to
exercise or protect their rights under this bill. However, no funding has been
committed to assist with legal costs, which will leave many impoverished First
Nations citizens with no access to lawyers.
In northern communities, courts are located in cities far from reserves. This
will make it difficult for First Nations citizens to get to court proceedings.
Also, in certain cases, there will be First Nation language translation issues.
First Nations have limited capacity and resources to create matrimonial laws
to replace the federal code. It is therefore unrealistic to expect most First
Nations to develop, implement and enforce either a federal code or a code
developed under delegated authority. In effect, this means that most First
Nations will be left with the provisional rules that impose upon them another
foreign adjudicator, the provincial court system, inconsistent with their
traditions, values and cultures.
The bill does not recognize First Nations institutions, processes and
approaches to deal with marriage breakdown, such as mediation, alternative
dispute resolution, use of elders' councils and First Nations courts and
The key problematic issue arising when couples separate is the lack of
housing on reserve. This situation often forces one of the partners to leave
their home reserve community. The federal government could address this
situation through the provision of adequate funding to eliminate the massive
backlog of housing needs on First Nation communities.
Bill S-4 creates the appearance of action while leaving unaddressed the
underlying socio-economic problems. These numerous and substantial problems
include inadequate housing, poor health, low education levels, undrinkable
water, lack of employment, inadequate First Nations government tools and
resources, and the list goes on.
The complaints of non-Indians living on reserve have no doubt contributed to
the issue being labelled "urgent." The framing of this issue as a woman's
issue, when it is really a collective issue that will affect all members of
First Nations communities, as well as future generations, is misleading.
Despite our weakened state, we as First Nations peoples, as a collective, are
still in the rightful position to determine what is best for our children and
families as a whole. Centuries of colonization have damaged us in profound ways.
The healing process cannot occur as long as the colonization continues.
Alternative approaches to fixing this problem can be found in addressing the
underlying socio-economic issues on reserve and through honouring treaty and
Aboriginal rights. In other words, if First Nations are provided the resources
that are rightfully theirs, they will have the ability to address problems such
as the division of property and protection of women and children from domestic
The aforementioned points provide examples of how Bill S-4 violates the human
rights Declaration on the Rights of Indigenous Peoples and, in particular, those
same sections that Councillor Hill just read to you: Articles 3, 5, 8, 21, 22,
27, 33 and 34. The extent of inconsistency with the declaration is fundamental
This is separate and apart from a consideration of the likely violation of
other norms of international law as reflected in the Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights, and other
To conclude, the Chiefs of Ontario again strongly urge you to recommend to
Parliament that this legislation be struck down.
The Chair: Thank you very much, Mr. Toulouse.
Mike Mitchell, Grand Chief, Mohawk Council of Akwesasne:
[Mr. Mitchell spoke in his native language.]
My Mohawk name is Kanentakeron. My English name is Mike Mitchell. I am Grand
Chief for the Mohawk Council of Akwesasne. You have our document that we sent
ahead of time. I want to introduce two people who are accompanying me, Chief
Julie Phillips-Jacobs, district chief of Kanatakon; and Martha Lafrance who is
in our Mohawk Justice Court Administrator.
I, too, want to talk about matrimonial real property, but from the
perspective of the Mohawk Nation. When the Europeans first came upon our people,
I want to tell you what they saw, what type of people were there. They
encountered a people whose society, law making and governance comprised of women
who would put up the leaders. If they were not good leaders, the women of the
various clans would take the men out of office.
In a family situation, a man and a woman got together to raise a family, to
become a family, and if at any time the marriage did not work out, the man left.
He left the house, he left the property in good condition and it went to the
wife and the family. In this society, it was incumbent upon him to look after
his family, and he left, went back to his home community.
In 1899, we had representatives from Canada come down and say, that is not
democracy. We want to bring you the Indian Act; that is democracy. We have
suffered from that since then because it turned our world upside down.
I want to talk about three events that affected us: The Treaty of Utrecht,
John Jay's treaty and the War of 1812. If this is Akwesasne, it split our
community in half. Today, one-half of the territory is in Canada, the other half
is in the United States. Two thirds of what is in Canada is in Quebec and one
third is in Ontario. It is very difficult because we are affected by the laws of
Canada, the laws of Ontario, the laws of Quebec, the laws of New York State and
the laws of the United States. We have become very famous for the wrong reasons.
I want to talk about a society that is able to govern its people. That
society of people that I talked to you about before European contact still
exists today. We have learned to work with our traditional leaders, the same
people that I told you about earlier, except we have learned to modify the
Indian Act system so that it became a community government. We have learned to
take those principles of Iroquois governance, incorporated into our own
The story that I shared with you reflects what you and I understand. We know
that the laws of Ontario, the laws of Quebec and their policies are never the
same. State laws are different. In order to serve the community, it is very
difficult for us to take outside laws, incorporate them, and apply them. The
laws of Canada and the United States are different, yet we are one people trying
to live as one people in a community.
Our comments on matrimonial real property break down like this: We are
opposed to it. We want to have real consultation. I am not talking about us as a
people consulting with ourselves, but coming up with something that reflects our
culture, traditions, language, and putting those Iroquois principles back in
there. If one shifted to the right and one to the left, we have to find that
common place. That means that Canada and we will have to educate one another. We
will have to share the basic principles of fairness and equality the way we know
it and the way you know it. It is not a one-way street.
We have 12,000 of our population on the Canadian side and 8,000 on the
American side of Akwesasne. We are not far behind these guys over here. Many of
their women are moving over to Akwesasne, so I think we have a fair chance to
catch up to them. We all want fairness. You, as a government institution, want
fairness for your people. Our governments, in Iroquois communities, want
fairness too. We do it with the institutions that we have been able to build
from our communities.
I will turn it over to my chief who will talk about the judicial makeup that
we have been able to incorporate within the short time that we have become
involved in our governance.
Julie Phillips-Jacobs, Chief, Mohawk Council of Akwesasne: As Chief
Mitchell said, we do have solutions to our problems. One of the basic things
that we did was to begin to develop our own matrimonial property law. Our laws
are built on the principle that it is our responsibility to provide for the
seven generations to come, and it remains our duty to protect our ability to
call forth our future. Based on our inherent authority and assertion of
fundamental principles, the Mohawk Council of Akwesasne, through a working
group, has begun drafting our Akwesasne matrimonial property law.
The composition of the Working Group includes community members,
representatives from Housing, Social Services, Justice, Nation Building, Office
of Vital Statistics, Mohawk Council Chiefs, Mohawk Court Administration, the
Legislative Commission and in consultation with our traditional government. The
intent of this structure is to talk through the issue and create provisions for
the law that will capture all of our unique diversity and need.
Our law addresses the developing situation concerning men, women, children,
the role of grandparents, aunts, uncles and extended families as Akwesasne looks
at this issue as a family issue, not just a women's issue. Akwesasne recognizes
the bond between our children and our community. We recognize that the best
interests of the child will be of paramount importance and their interests will
be taken into great consideration when parties separate. Children are a gift
from the Creator, and we recognize the importance of the unity of family and the
unity of our community, as it is our view that it takes a community to raise a
child. This is the fundamental principle behind the development of our
legislation. It is our intention to draft our own children's law in the near
The fundamental principle of family law in Canada rests on the premise of
looking out for the best interests of the child. It also reflects that every
parent has the responsibility and obligation of providing the basic necessities
of life for their children. This is the same principle we are using to develop
When Akwesasne's law is complete, it will be enacted by our community. It
will go through our own law enactment process, which requires three readings
over a specified time with one community meeting. Each meeting serves as an
education component geared towards discussion on subject matter delivered in
both English and Mohawk, using forums such as district meetings, special
meetings, focus meetings, portfolio meetings and emergency general meetings.
These will involve the use of the Mohawk council's communications officer and
our radio talk show. These are all ways in which we will communicate with our
Once the discussion is complete and the law is passed, this completes
Akwesasne's duty to consult and our verification process to our membership. A
record of all of our enacted laws is maintained by the Akwesasne Justice
Department and is available to the public. There is no need for a verification
officer, as Chief Mitchell said, in Akwesasne.
Mr. Mitchell: I had a meeting last week with Minister Strahl. We
talked about the fact that Indian Affairs has some 120 unresolved land and
estate cases. Through our Mohawk court and our tribunals, we are talking about
passing that authority to us and letting us resolve our own lands and estates
issues, property and situations. This has gone on for the last 50 some years,
and it has built up. We have learned to deal with a lot of it under our own
institutions. We feel the same way about this issue that we can take on that
responsibility as well, but it will be done through dialogue. This concludes our
Senator Nancy Ruth: Chief Phillips-Jacobs, I was interested in your
description of it. I also want Councillor Hill to comment on the process used in
her area. I also want to know what relationship, if any, have provincial family
law judgments and precedents been considered as a guideline?
Tell me a bit about how you got together to draft it. We heard about the
various groups involved.
Ms. Hill: It is tied together. You asked about provincial precedents.
One First Nation in Ontario has drafted its own MRP law. They are
Ondacomdaconing. We pulled in their draft and some other First Nations with land
management and MRP law. We did all the research. For our presentation, we
engaged an adviser to do all this research for us. We pulled those in and had
many community meetings over the last two or three years. We started those
meetings before the first draft of this proposed legislation was introduced in
the house. In anticipation of it, we said we would do our own.
We had community meetings, focus groups and meetings with all of our staff.
We went on the radio, put out newsletters and did a great deal of community
consultation. We got their input, answered their questions and we changed the
draft frequently. I think we did as many as nine drafts. It will still be open.
Once council passes the draft, it will go through the proper reading processes.
Once we pass it through, there will still be an opportunity for it to be amended
if need be.
Senator Nancy Ruth: You said your band took the initiative knowing
that this bill, in its previous forms, was coming. How many other bands have
taken that initiative?
Ms. Hill: I believe that the Akwesasne is one of them. As I said
earlier, we are working with the other Iroquois communities.
Senator Nancy Ruth: Does anyone know the answer to that question?
Mr. Toulouse: Ms. Hill used the example of the Ondacomaconing, part of
an organization called the Union of Ontario Indians, which has 42 communities
associated with it. They have done this preliminary work. The other
organizations in Treaty 3 are in the process whereby they are providing some
assistance but not in a collective nature like these others.
Senator Brazeau: Thank you for your presentations this afternoon. I
have a couple of comments. Some presenters said that if this bill is passed, it
would go against Aboriginal and treaty rights. As a First Nations person, I
would argue that it would add to Aboriginal and treaty rights because it would
add the right to be treated fairly, the right to be heard and to have a fair
process, the right to be protected from any forms of discrimination in the case
of marriage breakdown and the right to equality, just to name a few. Those are
important rights to all Canadians, including our Aboriginal citizens.
Having said that, Mr. Toulouse, correct me if I am wrong: You mentioned that
in 2006, the Chiefs of Ontario decided to reject the consultation process, yet
you mentioned that the government failed in its duty to consult. How do you
reconcile saying that the federal government failed to consult citizens when
Wendy Grant- John, a First Nations woman, was appointed to assist the government
in having consultation sessions to inform First Nations citizens, to educate
them on the potential impacts of the bill so they could have a better
understanding of what is happening. Do you not think that rejecting the
consultation process before there is a draft bill in place is a disservice to
First Nations citizens who might want to make an informed opinion on the
contents of future proposed legislation or have input in the drafting of
Mr. Toulouse: I guess this is where we have a difference of opinion in
terms of what consultation and accommodation mean. When you have an idea that
might negatively impact us, such as a piece of proposed legislation, the duty to
consult and accommodate should be initiated then, not after the bill has been
developed, leaving us to comment on its appearance. No. It was clear to us in
the Supreme Court decisions that the duty to consult takes place at the outset.
We have obvious treaty and Aboriginal rights that have yet to be understood
or recognized by the federal and provincial governments. The inherent right that
we have to govern ourselves does not come from the Constitution; it comes from
what these chiefs have talked about, which was prior to the colonizers who
settled here. We had our own laws and self-governance, if you will. That is what
we are talking about when we say we have the inherent ability. We are not
talking about having our rights through some federal policy called "inherent
rights." No. We have always had them, and we continue to exercise them, as the
chiefs have relayed to this committee today.
There is much to be said for the government to live up to its responsibility,
which is to consult and accommodate the title holders, who are the First Nations
leaders and the people in the First Nation communities. The AFN or the Chiefs of
Ontario will not discharge government's responsibility to consult. The
government has the duty to consult. From time to time, we assist in coordinating
and facilitating some discussions, but it is still incumbent upon the government
to consult First Nations leaders and their people.
Senator Brazeau: The government of the day notified its intention to
move forward on proposed matrimonial real property legislation in 2005-06 and
the consultation process started in 2006-07 to reach out to community members
and organizations to get feedback, recommendations and suggestions as to how
this legislation should look. Yet, you are saying that in 2006 the Government of
Canada provided that opportunity for a consultation but you decided to reject
it. How then did the government fail in its duty to consult?
Mr. Toulouse: When people are asked to engage and consult, they at
least expect to get to the table. When many First Nations chiefs are not advised
that there is a meeting for them to attend, that is not considered consultation.
To say to the AFN that there will be one meeting, that is not consultation to
First Nation citizens or to the leadership. Consultation includes coming to the
community and talking about the processes that you heard described today. That
is meaningful consultation. Simply sending a note that there will be a meeting
is not consultation. Expecting First Nations to attend when they do not have the
financial capacity to go to meetings every day of the week is unrealistic.
Senator Lang: I would like to direct a question to Chief Mitchell and
perhaps Chief Montour. In the opening remarks, Chief Mitchell, you mentioned
that it was the customs and tradition of your First Nations that, if there were
a marriage breakdown, then the man left the house. Basically, it was a case of
honour, from the way I took it. Is this the case today in all situations of
marriage breakups in your area? Perhaps Chief Montour could comment on that as
Mr. Mitchell: No, it is not, sir. We got too acculturated to the
Indian Act. The traditions and values of the Mohawk nation are something we are
trying to resurrect in our communities. The chiefs and clan mothers are still
with us. The faith keepers, of which I am one, remind us of those Mohawk values,
so we are trying to resurrect them. We are trying to apply those principles and
values we hold dear, not as Canadians, Ontarians or Québécois, but as Mohawk
nation people. If you put that against the objectives that you are trying to
bring to us, then we can make it work.
Mr. Montour: In my personal case, when my first wife and I parted, I
took two suitcases and left. I still believe that women own the land, own the
house and own the children. That is my belief. Several friends of mine have gone
through the same thing. In fact, I drove one individual home one night, and his
wife said, "Your stuff is in the garage; please leave." He left. It does still
Senator Lang: Madam Chair, I just want to get it clear for the record.
Does that happen today in all cases?
Mr. Montour: Yes, it does.
Senator Lang: Where the man leaves the house?
Mr. Montour: Yes.
Senator Lang: I believe, Chief Montour, you mentioned that you had
draft legislation for matrimonial property rights.
Mr. Montour: Yes.
Senator Lang: Could you provide us with a copy of that for our review?
Mr. Montour: Yes.
Senator Baker: As an observation, Grand Chief Mitchell noted that a
part of the community is in Quebec and part is in Ontario, so which part applies
with this legislation? In Quebec, a common law relationship — Ms. Lafrance is
nodding with a smile on her face — is not recognized in matters of division of
property as it is in Ontario. You are absolutely right, Grand Chief; this is a
Angus Toulouse, you are also absolutely right, sir. In law today, if the
federal government does not consult in a meaningful way, the law is struck down
by the court as being an unconstitutional decision by the federal government.
The case law is there, case after case. Even in setting fish quotas on a
coastline, they do not consult with the persons up north when they are setting
This appears to me, to a rational person listening to the debate that you put
forward, to be clearly an unconstitutional act that we are passing because of
the lack of meaningful negotiation prior to the formation of the act of
Parliament. If this bill is passed, are we to expect, then, an immediate
challenge in the courts by someone as to its constitutionality? Is that what we
are looking at now for the future?
Mr. Toulouse: I would say that would absolutely be the first course of
action that would come from a First Nation community.
The Chair: Thank you. Are there any further replies to that?
Senator Mitchell: I am very intrigued by the idea that it is a
cultural phenomenon in the Mohawk culture that women choose the leaders. I do
not need an answer, as this is not a question, but I noticed how closely Julie
Phillips- Jacobs has been watching your performance today. I think you did very
What portion of Aboriginal communities are actually supporting this bill. We
heard CAP this morning, and they appeared to support it. Beyond that, everyone I
spoke to does not seem to be, and the witnesses largely represent groups that
are not supporting it. Have you an estimation? Have you done an assessment?
Mr. Mitchell: Approximately 60 per cent or 70 per cent of our
community members still reside in our territory. In 1996, the Department of
Justice came to Akwesasne and asked if they could do a house-to-house survey on
these matters. We gave them the go ahead to ask what kind of law we would like
to live under, how it affects us, would our laws work better than outside law.
When they got done, 60 per cent to 70 per cent of the people said it should come
from the community, from the nation.
We should put together the best things in yours and ours and have one system
that is workable and that people would support. That is the problem that we are
having. You force laws on us, as good as my Canadian friends over here can speak
on it, but there is a negative component to it, and that is grassroots. They
have to accept it and participate. That is what we are striving for.
Mr. Toulouse: Not one of the 133 First Nation communities in Ontario
would support this bill. The Congress of Aboriginal People does not have any
First Nation communities. It is not a community per se.
Senator Mitchell: You then have to ask, if this were a bill affecting
non-Aboriginal people and 60 per cent or 70 per cent of them did not accept it,
would any government proceed with forcing it on them? It is an interesting
Mr. Toulouse: The Assembly of First Nations, which makes up 600 and
some First Nation communities, also rejected this bill a number of times.
Senator Dyck: Thank you for your clear presentations this morning. My
question is with regard to the duty to consult and accommodate. Some of you
indicated that the discussions undertaken by Wendy Grant-John were really
discussions and not actually a real consultation and accommodation. In her
report, did she herself say anything about whether she considered she had
undertaken the proper process to consult and accommodate? I believe she may have
indicated in her report that it did not discharge the government's duty to
consult and accommodate in a proper fashion.
Mr. Toulouse: Coming from Wendy Grant-John's report, she did say that
consultations with First Nations, as required by our treaty relationship and
recent Supreme Court decisions, have not occurred. Consultations with AFN are
illegitimate because they are not a rights holder. The duty to consult has not
been met until First Nations have been directly consulted.
Senator Dyck: She was the ministerial representative?
Mr. Toulouse: Yes.
Senator Dyck: Thank you.
The Chair: I believe the comments of Wendy Grant-John are also
available in our material, if you want to refer to it.
Thank you all for coming and being patient and waiting for us to finish our
other witnesses. This committee is adjourned.