Proceedings of the Standing Senate Committee on
Human Rights
Issue 4 - Evidence
OTTAWA, Monday, November 21, 2011
The Senate Standing Committee on Human Rights met today at 4 p.m to study Bill S-2, 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.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[Translation]
The Chair: Honorable senators, this is our fourth meeting of the Senate Committee on Human Rights. We have received the mandate, from the Senate, to study issues related to human rights in Canada and in other countries.
My name is Mobina Jaffer, and I welcome you all in this room.
Today we are starting our study of Bill S-2, 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.
[English]
I welcome you here today. We have Senator Brazeau who is the deputy chair of the committee, Senator Andreychuk, Senator Dyck and Senator Hubley. Mr. Charbonneau is the committee clerk. Ms. Tiedemann and Mr. Walker are the senior research analysts.
For most Canadian individuals facing a breakdown of their conjugal relationships or suffering the loss of a spouse or common-law partner, legal protection is in place to ensure matrimonial real property, MRP, assets are distributed in an equitable fashion. Unfortunately, this is not the case for those living on reserves, which are governed by the Indian Act. For them, death or the breakdown of a relationship often leads to homelessness, financial woes or insecurity.
[Translation]
Our committee is very familiar with the matrimonial real property issue on the reserves. In 2003, the committee studied real property rights of women living on the reserves. In a report entitled A Hard Bed To Lie In, the committee stressed the need to pass legislation to ensure Aboriginal women had the same rights as other Canadian women in the advent of a divorce or the breakdown of a common law relationship.
In 2004, the committee published a follow-up report entitled On-Reserve Matrimonial Real Property: Still Waiting, which stressed even more the need to pass and implement legislation.
[English]
In both reports, our committee focused on the exceedingly vulnerable positions that women, in particular, are placed in. With this in mind, our committee advanced a series of recommendations. I am pleased to see some of them reflected in the bill we have before us.
I would like to welcome Regional Chief Wilson-Raybould from British Columbia and Karen Campbell, the senior analyst with the Assembly of First Nations.
I understand you have remarks before we ask questions. The last time we studied Bill S-4, we found your comments useful, and we are looking forward to learning from you.
Jody Wilson-Raybould, Regional Chief, British Columbia, Assembly of First Nations: Is it my pleasure to be back here before you to speak to Bill S-2. My name is Jody Wilson-Raybould and my traditional name is Puglaas. I come from the Musgamagw-Tsawateneuk people of northern Vancouver Island, where I live in my home community of Cape Mudge with my husband. I am also a member of council in my community.
I am here today as the Regional Chief for British Columbia, but on behalf of the Assembly of First Nations and as the national portfolio holder for First Nations' governance.
Thank you for the opportunity to present on Bill S-2. I echo my comments from my previous presentation before you in the last iteration of Bill S-4.
First, from a personal perspective — as an Aboriginal woman who is married, lives on-reserve and has interests in property — this is an issue that I want solved, like many other Aboriginal women and men. It is one of many aspects of life on-reserve that are governed more effectively off-reserve. For many reasons, it has not been addressed on-reserve.
There are serious issues with respect to matrimonial property rights on-reserve. We need to find the right legal mechanism to address them. For example, we need to protect the property rights of spouses. We also need to address the issues of domestic violence so a woman has the right to live in the family home without fear.
In my own community, we have taken ownership of this issue. We are currently developing our own matrimonial property law under our jurisdiction pursuant to the Framework Agreement on First Nation Land Management. I sit on our community's working committee that is developing the law and, like you, considering policy questions that surround the development of that law.
Bill S-2 will arguably provide an opportunity for more First Nations to make matrimonial property laws. However, the Assembly of First Nations remains concerned with respect to the approach taken in developing the bill. This includes the imposition of the provisional MRP rules, until such time as a First Nation is ready to enact its own law.
Before I consider our concerns, let me say we are pleased there have been changes in Bill S-2 from its previous iterations.
The offensive and unnecessary verification officer and verification office have been removed. There is now a requirement of only a simple majority of First Nation citizens to enact a law. A 12-month transition period between passage of the bill and its application to First Nations has been added. This is positive, although based on our experiences a 36-month transition period under the framework agreement would be more realistic.
Notwithstanding these changes, the principle concerns raised by First Nations that I noted in my previous remarks to the committee remain. In 2006, the Assembly of First Nations coordinated a number of dialogue sessions with our nations. Our First Nations identified a number of key issues: recognition of First Nations jurisdiction, access to justice, dispute resolution and remedies, and addressing underlying issues such as housing shortages and the lack of access to temporary shelters. These concerns have been confirmed and reiterated in resolutions of our chiefs in assembly.
With respect to jurisdiction, the promise of rights recognition and reconciliation under section 35(1) of the Constitution Act should require, for legal certainty, the explicit recognition of First Nations inherent right to self- government as part of any legislative solution where such powers are not delegated.
This includes recognition of a range of powers necessary to effectively govern matrimonial property. Practically speaking, Bill S-2 has attempted to carve out a jurisdiction over matrimonial property rights from other subject matters. Issues of matrimonial property rights cut across a number of areas of jurisdiction. A government making a law in this area would typically draw on a number of heads of power: lands, justice, children and family relations, landlord and tenants, wills and estates, and so forth. If issues of matrimonial rights are to be fully resolved beyond the provisional rules, it will require a more comprehensive approach to addressing First Nations governance issues than is set out in Bill S-2.
The second point arising from our dialogue sessions was ensuring access to justice. The provisional rules do not provide the appropriate dispute resolution mechanisms and remedies.
It will be challenging to legal practitioners to work through complicated interplay of the provisional rules — the Indian Act and the relationship to provincial laws dealing with other family relations matters — that will need to be considered when matrimonial property rights on-reserve are addressed.
Seeking a remedy in court under Bill S-2, if pursued by our citizens, will, I believe, be more expensive than for persons living off-reserve. Due to the significantly lower levels of incomes on reserves, it will therefore be more difficult for many couples to access the new remedies.
Legal aid systems across Canada are chronically underfunded and are not meeting current needs, let alone future demands created by the potential adoption of this legislation. Also, requiring compensation to a spouse for the 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.
The remedies with respect to the provisional rules rely heavily on access to provincial courts. The general assumption of access to provincial courts is not practical or realistic in many of our communities. Effective policy developments around matrimonial property must be initiated within our communities, reflecting the unique circumstances of our communities with appropriate dispute resolution processes and remedies.
The AFN strongly recommends the creation of specific mechanisms to support such access. Supporting the establishment of remedies within First Nations that are grounded on our legal traditions and balancing collective and individual interests at the community level can increase access to justice and remedies and reduce costs. These can include support for the establishment of First Nations courts and the enhancement of current investment in community-based dispute resolution mechanisms.
Also of note is that, while Bill S-2 is explicit on the authority of the courts to hear disputes in relation to the provisional rules, it is not explicit with respect to the dispute resolution powers for First Nations under our own MRP laws made under the provisional rules, both with respect to the extent of First Nations jurisdiction and how a First Nation could rely on the provincial and federal courts to enforce its laws, if so desired.
We must move forward to address the ways in which First Nations laws can and will be effectively enforced and adjudicated.
The third area identified during our dialogue sessions is the need to address the underlying issues that led to the disputes in the first place. Providing better prevention support as well as adequate emergency and second-stage housing has been identified as a requirement. This reiterates the need for a holistic approach driven by the community to sustain effective remedies. Without attention to the implementation, and supporting safe and strong communities, legislative reform in and of itself cannot significantly improve the lives of our communities and our people.
I move now to the broader question of rebuilding First Nations governments. A few weeks ago, National Chief Atleo and I appeared before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development to discuss how we could best move forward on First Nations priorities together. We reflected on how certain federal legislative efforts have not respected First Nations approaches, priorities and aspirations. It is important to provide some context to Bill S-2 from the perspective of the process of decolonization that our nations are currently experiencing.
As you consider this bill, or other federal legislation that addresses aspects of First Nations governance, ask yourself: What is the best way of moving beyond the Indian Act that supports establishing strong and appropriate governance in First Nations communities? To put it another way: How do we dismantle the colonial Indian Act system of government and replace it with appropriate governance?
Finding the comprehensive answer to this question has, of course, been elusive for many political and legal reasons. The federal government has therefore unilaterally taken it upon itself to address some of the more egregious deficiencies in the Indian Act system of governance that has resulted in persons living on-reserve being in more vulnerable positions than other Canadians. This legislation is such an example, along with legislation dealing with the application of the Canadian Human Rights Act, the determination of Indian status or proposed legislation dealing with water quality, accountability and so forth. While the intentions may arguably be good, tinkering around the edges of the Indian Act is woefully short of what is actually required to bring certainty to First Nations governance and give meaning to what is contemplated in the promise of section 35 and the principles of the United Nations Declaration on the Rights of Indigenous Peoples. It is, in fact, a political and legal exercise that on a number of fronts is fraught with problems. It often leads to controversy with almost always the potential for legal challenge by those who are subject to the laws.
The Assembly of First Nations has long advanced the need for principled partnership on any legislation to achieve change for First Nations that would include unique elements, including advancing discussion on scope and intent and open information sharing, joint drafting and development. This can and should be the case for this legislation.
While we are pleased that Bill S-2 has made some amendments from Bill S-4, it is still problematic in that it is not addressing this issue from the context of more comprehensive nation building. Bill S-2 should only be viewed as a stopgap measure that, unfortunately, may prove to have little or no practical benefit in our communities until the foundational issues between us are resolved.
The provisional rules are not ours. It will be hard for our nations to make MRP laws in absence of a more comprehensive governance reform within the institutional framework for governance beyond the Indian Act. Whether or not today there is now the political will on the part of the federal government and the First Nations to seriously look at a comprehensive self-government initiative that breathes life into the United Nations declaration, we shall see. If there is the political will, we need to seize on that opportunity and direct our resources and energy to governance reform that will have the most impact in our communities on the ground and improve the lives of our people.
If passed, let us hope that Bill S-2 will have a limited life because we have found a long-term solution to these and other issues as part of comprehensive First Nations governance reform beyond the Indian Act that is so urgently needed. Until that time, Canada must tread carefully in imposing governance reform in this and in any other area.
The Chair: Thank you very much, Chief Wilson-Raybould. Does Ms. Campbell want to add to the comments? If not, I will start off with the first question.
My question is on the shortage of housing on reserves. What impact would occur on the reserves if one spouse was forced to leave the reserve because of this bill? What impact does that have on the reserve, the shortage of housing?
Ms. Wilson-Raybould: In my community and other communities, there is, as you say, a chronic shortage of housing. Certainly, if one party was asked to leave, the resident would have to find other accommodations. There is a shortage of part-time housing just as there are shortages of housing for individuals in communities. In fact, there is an enormous waiting list in many of our communities.
Under the bill, as discussed, there is the 90-day period wherein an order can be made. That 90-day period can be extended for an additional 90 days. At that time there is a challenge in terms of where that individual would go for housing. The realities in our communities and the impacts of those realities on that person would be detrimental.
The Chair: I understand that the funding for Aboriginal housing has been cut by $127 million since 2008. What impact does that have on housing on reserves?
Ms. Wilson-Raybould: The cutting back in dollars for housing and other areas has impacted our communities greatly in terms of our First Nations members, whether they live on the reserve or off the reserve, having adequate housing. The ability of our members or our citizens to come back to our communities has been impacted due to the lack of housing, and many of our members have not returned. Cuts in money for communities to build housing have significantly impacted the populations on our reserve and the realities of the situations that our communities face.
The Chair: You spoke about legal aid and said that it was chronically underfunded. This bill will create more demands on legal aid.
I would like you to tell the committee what will happen to the women living in more remote areas who do not have access to courts. How will they be able to use this bill to their benefit?
Ms. Wilson-Raybould: In terms of legal aid, currently, there is a chronic shortage of funding for legal aid across the country. Add that to First Nations people that seek to access the courts to address issues around matrimonial property and the amount goes up significantly. There is a shortage of legal aid right now, and with the increase in potential cases as a result of this bill, already tight resources will be taxed even further.
Senator Brazeau: You talked a great deal about the issues that you still have with Bill S-2. You also spoke at some point about Bill S-4. We as a committee, and the government, heard a lot about some of the recommendations and advice on how to improve upon the former Bill S-4. Do you believe that this bill is a good reflection of some of the concerns that we heard about Bill S-4? In other words, do you believe that this bill is better than Bill S-4?
Ms. Wilson-Raybould: As I said in my comments, I recognize the changes that have been made in Bill S-2. For example, I recognize the removal of the requirement for the verification officer, the extension of the time frame provided to First Nations in terms of the application of the provisional rules, and the reduction to a simple majority in terms of approval of a matrimonial property law. Those are positive steps that have been changed in the bill.
Our concerns, however, as I stated in my remarks, remain about recognizing First Nations jurisdiction in this area, the need for a more comprehensive approach to address the issue of First Nations governance, and the need not to compartmentalize jurisdictions but to look at how we support First Nations in the development of their governance and governance institutions during this transition period.
Senator Brazeau: I certainly do not disagree with you on the broader issues with respect to the Indian Act, but if we focus specifically on Bill S-2, do you believe that at least as a start, it affords protection for Aboriginal women in case of a breakdown of marriage, for example? Right now, if there is a breakdown on any reserve, Aboriginal women living in those reserves do not have any recourse to the courts or any sort of dispute resolution mechanisms. If this bill were to be passed, at least it would afford them that minimal protection that they so richly deserve. Would you not agree with that?
Ms. Wilson-Raybould: I agree that First Nations women definitely deserve protection. I would reflect on Bill S-2 and recognize the challenges that still exist in terms of access to justice and the courts, depending on the community's remoteness and the financial situation of First Nations women in terms of being able to access those measures. Bill S-2 does not resolve those issues. Those issues will remain if this bill is passed.
Senator Brazeau: You mentioned that many First Nations chiefs across the country still had concerns with the current version of matrimonial real property legislation and that many resolutions have been passed at the AFN level with respect to changes that, I guess, First Nations chiefs believe should be made.
However, nothing has prevented any First Nations community in the past from developing its own matrimonial real property regime as we speak today. Do you have a number of First Nations communities across the country that have actually developed an MRP regime?
Ms. Wilson-Raybould: To go to the latter part of your question, there are First Nations in this country that have developed their own matrimonial property regimes and laws. Under the First Nations Land Management Act, 17 communities have developed their own MRP laws, and a number of other communities are following suit, not to mention the First Nations that have self-government arrangements and comprehensive final agreements that have addressed issues of matrimonial property.
Senator Brazeau: My point is that if nothing has prevented any First Nations community from developing its own regime, and I certainly hear the concerns of some First Nations communities with Bill S-2, for example, and formerly Bill S-4, the fact remains that any First Nations community could have developed its own MRP regime before any enactment or drafting of any piece of legislation.
Ms. Wilson-Raybould: In terms of where First Nations communities are in this period of transition and nation building, our communities are subject to the Indian Act and are subject to the imposition of rules under the Indian Act. Short of a court decision ruling that the Indian Act is of no force or effect to our First Nations, First Nations must work with the government to advance governance reform issues and are doing so to varying degrees, whether they be part of sectoral self-government issues or part of comprehensive governance arrangements.
Senator Nancy Ruth: I want to follow up on that. Some bands and some reserves are struggling with doing it and some others are not there yet. Per se, Bill S-2 does not stop what is already going on; is that correct? I do not understand how it does, so if it does, tell me.
Ms. Wilson-Raybould: Well, First Nations can develop laws around particular areas, but the question is how those laws will be enforced. For First Nations who have sectoral or comprehensive arrangements, those laws are enforced through those agreements.
For other First Nations, we could seek to develop our matrimonial property law, but then the question is how that law is applied to our communities and enforced.
Senator Nancy Ruth: I do not have any trouble accepting your thesis that there is not enough housing, not enough legal aid and that access to justice will be an issue. I think those things are true, and the bill does not deal with them per se.
Ms. Wilson-Raybould: Yes.
Senator Nancy Ruth: In the transition year, in the centres of excellence that the department talks about, how will you be involved to assist the bands and use that time to push ahead on MRP, knowing that it will not deal with legal aid or with housing and will not give monies? That is quite clear: it will not do it.
How is the transition year helpful to you and to other people that want to do MRP to get ahead so that they will not even have to follow the provincial rulings, if they move on it?
Ms. Wilson-Raybould: In terms of First Nations and where we are, let us not isolate the issue to matrimonial property but focus more specifically on how we support First Nations in this transition period beyond the one-year period referenced in the bill. How do we support our communities in developing our own institutions of governance? For its part, in terms of MRP, there are examples to be drawn upon from the First Nations Land Management Act.
However, in terms of First Nations and how we are moving forward, there needs to be more of a comprehensive approach to First Nations addressing issues in their communities, to making decisions and developing their own institutions of governance beyond the Indian Act, approaches that are legitimized by our citizens and are developed from the community up.
Senator Nancy Ruth: I can understand that, but the whole issue of changing governance and working in cooperation with those who control the Indian Act and so on would be years of work for everybody.
In the interim, is it not a good idea to move forward on this and to fill a vacuum where so many women are discriminated against?
Ms. Wilson-Raybould: We believe that moving forward when this bill is passed will not address those issues in terms of addressing violence against women and access to justice matters. Certainly, there may be aspects of the provisional rules that First Nations may access or adopt into their own matrimonial property laws, but if when a year passes and the provisional rules apply, it is an imposed system of rules and laws that for most communities — and I can speak for my own community in particular. In the process of developing matrimonial property law, we did so from the ground up in that we developed a process for developing our law that was community-driven based upon our cultural experiences, our needs and our priorities. It is through that process that we see ourselves in our matrimonial property law and through that process we legitimized that law. Whereas if we had imposed rules or laws, as the provisional rules will become applicable after a year, the ability of those rules to apply to our community or to be enforced is highly questionable.
How do we go about supporting First Nations in developing their own laws so they can base priorities in their communities that are reflective of our current realities and culture in terms of being supported and legitimized by our citizens? How can we ensure that we support First Nations jurisdiction over the development of our laws? How can we support First Nations and ensure it is appropriate to individual communities?
Senator Nancy Ruth: If the AFN was to support that, how much time would you need for the 500 bands that have not completed an MRP?
Ms. Wilson-Raybould: The AFN does not do anything for First Nations communities other than assist where we can in helping our communities access the information required and in providing tools for communities to do so themselves. As I said, communities need to develop their rules and laws on the ground as they reflect their priorities.
From the experience of my community and that of the communities under the First Nations Land Management Act, I would say that one year is entirely optimistic for communities to develop an MRP law.
When my First Nation community began to become operational, we thought we would be able to do so in one year, but it has now been a year and a half. Finally, through our own process, we are going into second reading of our MRP bill. That might be spurred on a bit by this piece of legislation, but I anticipate that we will get into third reading and then into community ratification probably no later than January 2012. For us, it would have taken just under two years.
Senator Nancy Ruth: I am glad you think Bill S-2 will perhaps spur some people on.
Senator Dyck: Thank you for your presentations. When I first became a senator, I was amazed that First Nation women did not have the same rights as other women in the province or in a territory. It really kind of shook me, so I followed this and attended a couple meetings on previous Senate reports. Therefore, I fully support the concept, but what surprises me about this bill is that a non-First Nation partner — husband, spouse or common-law partner — is granted pretty much the same rights as the First Nation partner. I wonder how you feel about that.
Is there any justification for granting a non-First Nation partner the same rights as a First Nation partner when they are living on a reserve? Why should the non-First Nation partner have the same degree of rights?
Ms. Wilson-Raybould: Certainly that is a question that First Nations across the country are facing in thinking and conceptualizing around matrimonial property. It is something in terms of supporting First Nations jurisdiction in this area in the development of First Nations laws. It is an important right to defend, a First Nation being able to consider the policy questions that you are raising in light of the realities of First Nations women and of the citizens in our communities, whether they live in or away from our communities. It is important to respect and recognize the laws and how we deal with those issues and be able to put them into a law that is supportable within our communities.
Senator Dyck: As a follow-up to that, there is a research report by Stewart Clatworthy that talks about the degree of marriage between Indians and non-Indians. It was released in 2007, so it is pretty recent. It is probably based on the 2006 Statistics Canada data.
The report indicates there is a high degree of Indian/non-Indian parenting and, in fact, on about two thirds of reserves, the Indian/non-Indian parenting rates are greater than 50 per cent. What is really intriguing is that it is much more common for the women; in other words, a First Nations woman — and we are talking about protecting women — will be married to a non-Indian man. Therefore, if there is a breakup on-reserve, should the non-Indian man be given equal rights as the First Nations woman?
Ms. Wilson-Raybould: Again, I go back to my previous response in terms of supporting First Nations' ability to decide those policy questions. Whether or not you are Indian or non-Indian or have status or not, the question of citizenship is fundamentally up to the First Nation to decide. Once the First Nation has decided how they define who their citizens are, it is up to that First Nation to further expand in terms of determining rules or laws around the issues of matrimonial property that you are speaking about.
Senator Dyck: If I could restate what you just said, in essence, this bill then is taking away the right of the First Nation to make those decisions about who is a citizen and what their rights should be. It is imposing an external system upon an individual First Nation. Is that right?
Ms. Wilson-Raybould: If there is no law in place, after 12 months it is imposing provisional rules that speak to matrimonial property on a First Nation. However, that issue, as I said, cuts across many jurisdictions. Included within our institution of government is the question about citizenship, who our citizens are, how we make decisions within our communities and what the values are upon which we make those decisions. This whole period that First Nations are in to determine those fundamental or core institutions of government will reflect how we as First Nations look at various jurisdictions and at how we potentially create laws in areas of jurisdiction, including matrimonial property.
Senator Brazeau: Respectfully, you keep using the words "imposition of provincial rules." Now, unless I am mistaken, there have been years and years of dialogue and consultations with respect to MRP. As a matter of fact, I believe many of the discussions started in 2001 when the proposed First Nations governance act came about, which I was directly involved with. Since that time — certainly since 2007 or 2008 — I am aware that the AFN received just a little under $3 million to hold consultation sessions across the country in First Nation communities, as did other organizations. Much of this legislation has been drafted because of what was heard in the various consultation sessions across the country. Can you please elaborate on why you feel this is "imposition?" Many of the recommendations that came out of those consultation sessions are, in my view, reflected in this bill. It may not be perfect, but are you saying that nothing that the Assembly of First Nations had recommended in the past is reflected in this bill?
Ms. Wilson-Raybould: Thank you for the question, senator. I stated "the imposition of the provisional rules," not the provincial rules. Thinking about the report from the minister's representative some years ago, the discussions that we have at our assemblies about how to move forward with First Nations governance and, more importantly, the discussions and the current realities within our communities and the advancement of governance reform on the ground, we have come a long way in terms of our First Nations moving down that continuum of governance. There were challenges around the governance act that you spoke about. What First Nations are engaged in right now is identifying their priorities and how to move them forward, whether they be sectoral or comprehensive governance initiatives. The question is, how can we support what communities are actually doing practically, on the ground? Thinking about this whole question of matrimonial property and the way the discussion arose, one of the instances out of which it arose was a court decision called Derrickson v. Derrickson. This was a court challenge that came out of the Westbank First Nation, to do with the legislative gap that exists on Indian reserves. That community, at the time, had many challenges. That community is now one of the self-governing communities in Canada that has gone through a process based on some challenges faced in terms of exercising and advancing governance reform within that community. We need to focus on supporting First Nations in terms of governance and governance reform — what they recognize that they need in their communities and how we, as senators or parliamentarians, can support that effort or those First Nations that want to move down that continuum of governance.
Senator Brazeau: As I said earlier, I cannot disagree with that. I have certainly been involved, in the past, in many round tables about the need for governance reform. We can talk about the Indian Act and governance reform — and I probably agree with you wholeheartedly on that point — but we are dealing specifically with the protection of the rights of Aboriginal women and their children in the case of separation. Therefore, I would just like a straightforward answer: Is this bill needed? We can talk about governance, and I can ask you how long it will take for actual governance reform to take place or for First Nations' communities to develop their own laws and everything to work out smoothly. However, is this specific bill a good piece of legislation in the interim, before we get to that point on governance reform or we have a real MRP regime and First Nations actually address governance and Indian Act reform?
Ms. Wilson-Raybould: I would submit that in order to address, in a fundamental way, the issues of violence against women, of the protection of women and their rights and of the challenges or ancillary issues that have arisen as a result of this bill — and do not get me wrong those are fundamentally important — the government of this country needs to approach and look at holistic solutions to the challenge of decolonization and moving beyond the Indian Act to support First Nations-driven, First Nations-led governance reform in our communities. When communities are ready, willing and able to advance governance reform, Canada should not stand in the way of that, as a gatekeeper, for First Nations wanting to move forward.
Bill S-2, while well intentioned, cuts across many jurisdictional lines and many different areas of governance that First Nations are going to have to practically deal with, on the ground, in their communities. The practical reality of Bill S-2 is not going to address the issues that you speak about. What will address those issues is comprehensive governance reform that supports First Nations in moving forward.
Senator Hubley: In Bill S-2, the word "collective" is absent in the "for greater certainty" clauses concerning title to First Nations land, but is included in the First Nations Land Management Act.
Could you tell us, does the absence of "collective" affect the meaning of the title, and should it be added? Why?
Ms. Wilson-Raybould: You mentioned First Nations land management and the legal interests created under that regime. They have created interests in land for individuals. However, for the First Nations under the First Nations Land Management Act and First Nations that have negotiated governance arrangements, they have also put a recognition in their agreements, to protect the lands of that community, that individuals not be able to alienate land on their reserves.
Senator Dyck: When you say that they have put in provisions so that the land is not subject to alienation, could you explain that in everyday terms? Do you think that Bill S-2 has provisions like the First Nations Land Management Act that would protect reserve land from this alienation?
Senator Andreychuk: Section 5 of the act.
Senator Dyck: Thank you.
Ms. Wilson-Raybould: Bill S-2 deals specifically with matrimonial property issues and does not deal with land management on reserves. Right now, this bill is grafted onto a faulty system that is the Indian Act, wherein there are no legal interests in land in our reserve communities unless the First Nation has a final agreement or there is a sectoral or land code that creates that interest in land.
Senator Andreychuk: To pick up on that, my understanding is that any property or right created by the common law or the marriage would be subject to this act, but section 5 indicates very clearly — and when the minister comes I will want him to clarify this — that title to reserve lands is not affected by this act and so forth. It specifically talks about what the couple have gained together. It does not go into the rights that are enshrined elsewhere and maybe need greater clarification. Am I correct? There are Aboriginal/non-Aboriginal marriages and marriages where both partners are Aboriginal. They live together and hope for a good future, but perhaps it does not work out, for whatever reasons. As in all families, when a breakdown occurs, there are some good reasons and some not so good reasons. Is this not just a regime to say, "Let us see how we can bring some fairness into the breakdown of the marriage?" You talk about the rights of First Nations, which I respect, and the laws and the regimes. My concern is for the children, and I have not heard too much about that. Generally, children suffer when there is a breakdown. We want to maximize the best possible way for them to move forward. That can be done by getting some resolution to the family breakdown, whether on the reserve or elsewhere, and counselling to help solve the problems that stand in the way. They are often the things that are embedded here. Would you agree that it may not be the ultimate or best solution, but in the current vacuum, it is a solution to assist families in getting through the breakup and, in particular, in helping children? It says right in the legislation that the purpose of the act is to provide for the enactment of First Nation laws, et cetera. It talks throughout about the interests of the children, which is my interest — seeing that children get the best possible in the very flawed world they live in.
Ms. Wilson-Raybould: For a lot of First Nations laws that currently exist, the basis upon which they are putting together their matrimonial property laws is that the child stays with the house. That is evident in the Muskoday First Nations matrimonial property law, just as it is in a number of other First Nations communities who have been exercising their jurisdiction in this area for some time. This is not a question or a law about land tenure or land management. It is about residency and ensuring fairness. All of the challenges that I mentioned still exist, but this is one piece of a bigger picture in terms of what our First Nations communities are undertaking in this period of transition. This is one aspect of First Nations governance. It needs to be viewed, in my opinion, in that broader context of how we make decisions as a community based upon our priorities and objectives of ensuring that the best interests of the child are met, and how we develop those laws to ensure that our community members are protected. It is driven from what a community needs not from imposed systems of governance and laws, essentially in this case, that may or may not reflect the First Nations law. Recognition of First Nations jurisdiction in this area is certainly something that we are looking for and have called on. First Nations do have laws in these areas that do what you say in terms of protection of the child.
Senator Andreychuk: The impetus for the studies that this committee undertook came from Aboriginal women saying that the process is not moving and that they and their children are more vulnerable. They are often forced to move into cities where they have no resources and to go into situations that marginalize them even more and cause the children to be more vulnerable again.
My opinion is that any movement forward to help those families has got to be everybody's priority. When we did our studies, the Aboriginal women came forward and said that very little was happening. Why would that be? Now, we are talking about needing more time to implement. What about the discussions within the Government of Canada? I think I am aware of what may or may not have been going on there. Within the communities, what discussions were there about family breakdown before these Senate studies? Were they talking about division of property and about the best interests of the children? Did you have solutions other than what we are coming up with here — some division and protection for the child?
Ms. Wilson-Raybould: These discussions have been ongoing in our communities for years. They have resulted in many of our First Nations communities looking at the broader question of moving toward self-determination in a comprehensive way to address the fundamental challenges faced by our community members on- and off-reserve. They ensure that our communities are not looking at it in terms of isolation of these issues but in terms of a comprehensive approach that will address these issues once and for all and will be supportive of where our communities want to go. That has led First Nations, like the Westbank First Nation, toward self-government. Communities are approaching these challenges on a sectoral or incremental basis and have been quite successful in doing so. In the First Nations Land Management Act, for example, there are some 56 First Nations, with more on the waiting list, who want to approach issues of governance on an incremental basis moving forward. When First Nations are ready, willing and able to advance governance reform, how can the Government of Canada support those First Nations, support the deconstruction of the Indian Act reality, support the rebuilding of First Nations communities, and ensure that when communities are ready the government does not come back and stand as a gatekeeper for those communities to be able to advance beyond?
Senator Martin: We are close to the end of this period so I want to express great respect for the First Nations of our country. As a fellow British Columbian, I welcome you. I feel privileged to be at this table looking at this very important issue. As a woman and mother, I echo the sentiments. When I think about two people entering into a relationship and facing such challenges, I ask myself, "What if it were my daughter moving to a reserve because she has fallen in love with a First Nations man?" In terms of what we are proposing, I am looking at a shared responsibility and a safety net in the interim. As I understand, the one-year transition period does not limit any other First Nations community from using their community-specific laws and coming up with the MRP regime. It may take two or three years, but what safety net is in place? If there is not one, would this bill not be at least a safety net and a shared responsibility? We are here at the table together to look for solutions. I looked at this with great care and saw it as a real shared responsibility by federal, provincial and territorial governments and the smaller community within this larger Canadian mosaic. If I understand correctly, there is no limit to how long it may take but, in the interim, it is a safety net for those women and children needing just and fair protection.
When you talk about access to justice issues, does there not need to be a system of justice in order for the access issue to be addressed? What are those barriers?
How can the Government of Canada address that issue? What can we do to improve the access? That would be the second step, after something like Bill S-2, which will at least provide the safety net.
It is a comment with an embedded question. In the interest of time, a short comment and something in writing to respond would be sufficient.
Ms. Wilson-Raybould: I appreciate the question and recognize all of the ancillary issues and challenges we have that go along with this bill — the shortage of housing, issues of domestic violence, economic challenges in our communities — that definitely need to be addressed. However, they will not be addressed by the passage of this piece of legislation. I believe it is the responsibility of government to ensure there are appropriate resources to address housing shortages, issues that women in our communities are facing, appropriate resources for sufficient access to justice for these women and dollars in order to access those courts. These are issues that will not necessarily be addressed in any concrete way with passage of this bill.
What the Government of Canada can do to assist First Nations in advancing to be able to approach and address these issues ourselves is support our efforts in this transition period, in terms of decolonization and supporting our efforts for governance reform. When a First Nation is ready and able, back out of the way, recognize our inherent jurisdictions to govern ourselves and support that. Appropriate governance form directed by our communities on the ground that is legitimized by our citizens is the way forward for our First Nations.
At that time, while we are rebuilding our communities, we can appropriately address those issues in terms of what you were speaking about.
The Chair: Thank you for being here Regional Chief Wilson-Raybould and Ms. Campbell. You leave us with a lot of things to think about and help us with this study. We appreciate your making yourselves available.
The bill we have before us today is Bill S-2, which died on the Order Paper with the dissolution of Parliament in March 2011. However, there are three notable changes that are a reflection of concerns raised by some members of this committee and witnesses who offered testimony during our study of Bill S-4. The first change is the removal of the verification process, including the role of the verification officer. This section of Bill S-4 was referred to by witnesses and some committee members as being paternalistic. I commend our government for acknowledging the various concerns brought forward and for deleting the entire verification process from the legislation.
The second change is the lower ratification threshold. During committee proceedings, some of my colleagues and I spoke out against the high ratification threshold, which appeared unreasonable. It made it extremely difficult for First Nation communities to pass their own laws relating to real property on reserves.
In the bill we have before us, the ratification threshold has been lowered to a single majority with set participation in the vote of at least 25 per cent of eligible voters.
The third change is the transition period. In Bill S-4, there was no transition period. Legislation would have to come into force on a day or days to be fixed by order in the Governor-in-Council. Bill S-2 includes a 12-month transition period. This transition period has been incorporated to allow First Nations that are advanced in developing their own laws.
Mr. Minister, we know that you will look further at some of the other suggestions we have. We welcome you to the committee once again and look forward to hearing from you. You are accompanied by Line Paré, Director General, External Relations and Gender Issues Branch, from Aboriginal Affairs and Northern Development Canada, as well as Karl Jacques, Senior Counsel, Operations and Programs, from Justice Canada. We look forward to your opening remarks.
Hon. John Duncan, P.C., M.P., Minister of Aboriginal Affairs and Northern Development: Thank you for the opportunity to address the committee. I would like to make a few comments about the bill and then I will be pleased to answer any questions.
Last year the committee reviewed proposed legislation regarding matrimonial real property, known as Bill S-4. It also adopted a series of amendments. Bill S-2 incorporates not only these amendments but also, as you first described, three additional improvements that respond to concerns raised during your hearings.
I am confident the legislation now before us provides fair and balanced solutions, represents the Government of Canada's best approach to close the legislative gap, and puts an end to an inequity that continues to cause pain and suffering.
During your review of Bill S-2, I encourage all committee members to fully consider the key impacts of the bill, in particular for Aboriginal women and children who are currently in vulnerable situations because they lack access to the rights and protections offered by Bill S-2.
I continue to be amazed that there are opponents to the bill. However I am confident that when the committee closely analyzes any arguments, they will end up supporting the bill.
There are three points made by critics that I would like to address specifically. One is the suggestion that under Bill S-2 a non-Aboriginal person could somehow acquire ownership of reserve lands. This is completely false. While a judge could grant a non-Aboriginal person temporary occupancy of a residence located on-reserve, this would have absolutely no effect on the title of reserve lands. Nothing in the proposed legislation authorizes a court to change the communal ownership of First Nation lands.
A second and related suggestion is that Bill S-2 would grant provincial court judges unprecedented decision-making powers in cases involving the breakdown of spousal relationships on-reserve. Again, the facts do not support this view. The truth is that provincial judges have long had the authority to rule on many issues related to the breakdown of on- reserve spousal relationships. For instance, they have the legal authority to resolve disputes related to custody arrangements and related matrimonial personal property such as cars and other valuables. Bill S-2 provides for an incremental addition by authorizing provincial judges to resolve disputes related to on-reserve matrimonial real property.
A third point often made by opponents to the bill is that some First Nations have their own laws in place to deal with these types of disputes, implying that somehow this makes Bill S-2 unnecessary. While it may be true that some laws exist in some communities, no legal mechanism exists to authorize or enforce most of these laws. Currently, the only relevant First Nation laws that a court can enforce are those developed under self-government agreements or under the First Nations Land Management Act.
Madam Chair, I want to focus today on what I believe are some of the central features of Bill S-2. First, it is a mechanism that First Nations can use to develop, implement and enforce their own laws related to matrimonial rights and interests. Under the bill, a First Nation could formalize its traditional dispute resolution processes and remedies and finally give them the force of law.
Second, the provisional federal rules, once in force, would provide rights and protections similar to those existing off-reserve unless or until First Nations enact their own laws. When applying the provisional federal rules, Bill S-2 would require courts to consider the interests of First Nations when considering cases related to reserve lands.
I was planning to emphasize three changes in Bill S-2 that differ from previous versions of this bill, which you have so nicely encapsulated in your introduction. I will mention them once again. The proposed legislation before you includes a 12-month transition period to give First Nations time to develop and ratify their own laws before the federal rules come into effect. Furthermore, two significant changes were made to the ratification process for First Nations' laws. The verification process, including the role of verification officer, has been removed and the ratification threshold has been lowered. Together, these changes make it easier for First Nations to create their own laws. They maintain the integrity of the bill by ensuring that reasonable efforts must be made to advise members, on- and off-reserve, of the content of the laws that a First Nation develops and the process by which they will be voted on. At the same time, they remove impediments that may have prevented First Nations from ratifying their own laws. This government recognizes that First Nations are best placed to develop their own laws in this area, and these changes support them in doing so.
The time has come to solve this issue once and for all. We all agree the status quo is not acceptable. It has not been acceptable for 25 years, yet here we are. Without legislation, the legislative gap continues to impact individuals negatively. Most of these individuals are women and children — already among the most vulnerable of all Canadians — and no court can help them. Unlike most other Canadians, they cannot petition a court for an emergency protection order or other remedy.
Bill S-2 is about rights and protection for people who need them. It is about giving First Nations an effective legal mechanism to develop and enforce matrimonial real property laws in their communities. It is about responding to numerous calls for legislative action and, ultimately, it is about doing the right thing on behalf of all Canadians.
This committee has a long history on this subject and heard from an extensive list of witnesses last year. The issue has been studied by many groups. Virtually all studies concluded that legislation is needed to address this inequity.
I look forward to your prompt review of this bill and to the day when I will be able to tell people living on-reserve that they have access to similar rights and protections as Canadians living off-reserve.
The Chair: Thank you very much, Mr. Minister.
You have stated clearly that we have been studying this bill, different versions of it, for a while. I agree with you that many of the women and children on the reserves are the most vulnerable of all Canadians and have little access to courts. I am very concerned about the 90 days. Section 16(1) of Bill S-2 states:
On ex parte application by a spouse or common-law partner, a designated judge of the province in which the family home is situated may make an order for a period of up to 90 days . . .
Further, in section 17(8), it states that they can apply for another 90 days, which is, altogether, six months for an emergency order.
Mr. Minister, did you hear in the consultations that the First Nations communities just wanted 90 days? Where did the 90 days come from?
Karl Jacques, Senior Counsel, Operations and Programs, Department of Justice Canada: I can answer that, Madam Chair.
Mr. Duncan: Please, Mr. Jacques.
Mr. Jacques: It is similar to provincial legislation. As you know, the federal rules tend to copy or have some similar provisions elsewhere in provincial legislation. There is no set period across the board for all provinces. The 90 days was taken into account due to the fact that some provinces have that 90-day period. Some have a longer period. It was considered in this case that because of the sensitivity and the nature of the land, the interest held in the land, 90 days was a sufficient period of time and that a second period of 90 days would be added. Basically, it was based on the fact that other provinces also had that. If we were going to similar legislation that had longer periods, we would have added maybe some period of time that would not be agreed to.
The Chair: That is what concerns me. Ontario does not have the 90 days; it is according to what the judge says. It is like that in British Columbia. The only province that I could find that has the 90 days and then further as the judge grants is Newfoundland and Labrador. It is just 90 days and then further as to what the court says. I could not find any province that says 90 days and 90 days; that is 180 days and that is it.
I agree with the minister that these are the most vulnerable women in the world. We heard earlier that there is little access to legal aid. When there is little access to legal aid, you, of course, have to force the woman the first time to go to court. Then you ask her to go to court the second time and then after six months, that is it. Why have that kind of limitation? Why not leave it up to the judges to decide what is the right amount of time for that couple?
Mr. Jacques: We must take into account the fact that these are emergency provisions. Giving them a longer period would basically presume that the emergency situation is still an emergency. Emergency protection is for a limited period of time. If the marriage breaks down, then you can revert to the provisions that ask for an application for exclusive occupation for a longer period of time. After a year, it would be difficult to say that the situation is still an emergency.
The Chair: Well, we do not know. Circumstances differ. Ontario does not have that; it is left up to the judge. British Columbia does not have that. The only province that I could see was Newfoundland and Labrador, which had 90 days, plus what the judge says. We are saying that we are trying to create a law that is equal for all women in Canada, but you are not. You are limiting it for the women on reserves. Why is that?
Mr. Duncan: What I hear you saying, Madam Chair, is that with respect to the second extension you would prefer that it be up to judicial discretion.
The Chair: Yes, and I think that would then be treating people equally. Thank you, minister.
Senator Brazeau: Good afternoon, minister. Some opponents of the previous incarnation of Bill S-2, Bill S-4, and the current one, and the previous witness before you have said that this piece of legislation would be imposed onto First Nations communities if they did not develop their own MRP regime within the 12-month transition period.
It is my view that this piece of legislation and the past piece of legislation were drafted based on the many consultation sessions that were held across the country for many years. As a matter of fact, approximately $8 million was spent on consultations across this country to come up with a draft piece of legislation.
Let us not forget that during Bill S-4 we heard from individuals who had recommendations to improve upon Bill S- 4, which are reflected in Bill S-2. You enumerated the three major changes that we heard. Opponents of the bill have continuously said, "Here are some recommendations to improve upon the bill." You have listened; you have done that. We have this bill before us.
Was this piece of legislation drafted because of the consultations that were held across the country over the last few years, or is it really an imposition?
Mr. Duncan: I will back up to even before the consultations phase. There were two court decisions: Derrickson v. Derrickson and Paul v. Paul. The net result of that was to lead us to a vacuum in the law when it came to matrimonial property interest on-reserve.
In 1999, the Native Women's Association of Canada sued the Government of Canada on the basis that we had not created the statutory environment to fill that gap. That was 13 years after the original decision. That legal action has now been on hold. When the clock rolls into 2012, it will be 13 years that that has been on hold, awaiting development of legislation.
During that whole period of time, there has been debate. I think this is the fourth attempt at a bill. You are right. We spent $8 million — that is external to the department — on consultations. Subsequent to that, we have been very receptive to changes. We are not necessarily shutting the door to changes even now. All I have to do is go back to the chair's line of questioning as a potential example.
I cannot believe that on a human rights issue, where there has been so much suffering — and I have examples here that are enough to curl your hair — loss of life, pain and suffering, homelessness, poverty, and much of it was probably avoidable if we had legislation in place. Many of the impediments have been about other reasons that, to me, reflect badly on the fact that there was not a legitimate attempt to deal with that part of the equation; it was more of a political discussion.
Yes, I believe that we have demonstrably done a complete and exhaustive consultation and continue to accommodate and, really, it is time to move on. Thank you for the question because I get the feeling you think the same way.
Senator Brazeau: Thank you for the answer. I will share a bit of my experience. I have also been at this for almost a decade. Many of the Aboriginal women that I have spoken to during my working on this issue who have been affected by the lack of an MRP regime on-reserve are generally supportive of having a piece of legislation to fill the vacuum. Yet, when you talk to some Aboriginal leaders, some of them — not all — tend to oppose any attempt at trying to do the right thing to protect the rights of Aboriginal women and children. Maybe I am stating that a bit too strongly, but the fact is that there seems to be a disconnect between those Aboriginal women who have been affected by a lack of a piece of legislation such as this and those who actually receive the funding to hold consultations in some of those communities. There is sort of a difference of opinions with respect to what should be done.
Could you perhaps share some of the experiences and testimony that you have heard from Aboriginal women across this country in the last few years?
Mr. Duncan: I can tell you that I am certainly aware of some situations on a personal level. During the consultations process for the proposed legislation, the Native Women's Association of Canada indicated that many First Nations women "feared that their safety would be compromised through participating: therefore they did not do so." I believe that to be true.
Someone whom I have recommended to this committee, and maybe you have talked to her already, is former Chief Judith Sayers from Vancouver Island, who has been a good First Nations spokeswoman and a practising lawyer. She has dealt with a lot of child welfare and matrimonial breakup situations, has seen the desperate need for this legislation and this bill and just cannot believe the resistance and heavy weather that it has run into over time. If you have not talked to her, I would encourage you to put her on your list.
Senator Brazeau: Thank you.
Senator Dyck: Thank you for your opening remarks, Minister Duncan. They were very clear.
My question is with regard to exclusive occupation of the family home. I have absolutely no problem with the provisions in this bill with regard to the emergency protection orders. Obviously, we all want to protect women and children, regardless of whether they are First Nations members or non-First Nations members; the family unit, those most vulnerable, should be protected. However, I wonder about the provisions in the exclusive occupation of the home where a non-First Nations person is granted the same provisions as the First Nations member.
In your statements, you made it quite clear that you believe there is no possibility that a non-Aboriginal person could acquire ownership of reserve lands, yet when we looked at this bill previously, some of the lawyers from the Indigenous Bar Association, as well as the Canadian Bar Association — I do not recall the exact details — seemed to think there was a possibility. How do we reconcile those slightly different views?
Mr. Duncan: I will rely on my lawyer friend here to answer that question.
Mr. Jacques: I fail to see where their argument comes from. The act is quite clear in that there is no entitlement to the land. There is no transfer of title, and all that is granted to a spouse is a right to occupy the family home for temporary measures. That is not a right that is transferable to anyone else.
There are a series of criteria in the bill, much of which would all have to be taken into account by the judge, but mostly one that was added in the last parliament, which is the ties to the community the spouse may have. That is a factor taken into account by the judge. It would also be taken into account as to whether there are children.
In cases where the situation is not much different from a person living off-reserve, unless there is a reason why that person should have a longer period of time, it would not be different.
Senator Dyck: In your answer, you said a judge could order temporary occupation of the home, yet I do not believe clause 20 actually uses the word "temporary." Perhaps it could be clearer that the order should be for a certain number of years.
Mr. Jacques: Clause 20 does say "subject to any conditions and for the period that the court specifies."
Senator Dyck: Right, but it does not actually say "temporary." I think they were saying it could be 20 years or something along those lines.
Line Paré, Director General, External Relations and Gender Issues Branch, Aboriginal Affairs and Northern Development Canada: From a policies perspective, there are a number of considerations that a judge will look into. One is related to the children. For example, if you have a mother with three children — I provide this as an example, but these are stories we have heard — the children are in elementary school, they are in their communities and the grandparents are present, the judge will take those things into consideration as well as other factors. The judge could take the decision that the children will be able to finish the school year, so it provides more time for the mother of these children — and let us remind ourselves that these children are members of the community. The judge could make a decision that they can stay until they finish the school year or perhaps a longer period, until they graduate from elementary school and transition to high school.
There are a number of factors with respect to an exclusive occupation order that the judge would take into consideration. As my colleague mentioned, this legislation does not change title to reserve; a non-Indian will not be able to own a house or reserve land in the community. That is mentioned in the legislation.
Senator Dyck: You were saying that the judge would take into consideration the children in that they may need to finish school. A practical application of the bill would be if those children are not actually band members, would they be able to attend the band school? If they are not band members, then would the band be required to provide them the services that a band would normally provide? They may be resident in the home, but they may not be able to attend the school.
Ms. Paré: If the children are living in the community, there must be arrangements for them to attend the school either in the community or off-reserve. These factors would all be taken into consideration by a judge in accordance with his or her determination.
Senator Dyck: I want to continue along this vein because this idea of the non-First Nations person somehow gaining access to First Nations land I think is really one of the key worries out in the communities. I recall when I first heard about this bill and I was talking to a chief from Ontario, he said he supported the concept, but they were worried about the creation of checkerboard reserves, in that some of the land would somehow end up with title to a non-First Nations person. I know you are saying that is not the case, but that is definitely what people are worried about.
According to the Indian Act, section 28(2) says that occupation of reserve land by a non-band member of a duration over one year requires consent of the band council. Is it possible that this legislation contravenes the Indian Act, and that is okay?
Mr. Jacques: The scenario would be that the person is already living on-reserve. Therefore, it is not as if someone from outside would come on-reserve and establish a home. Basically, the person is already there, and that is just protecting that right.
Senator Dyck: Yes, and I guess where I find difficulty is the fact that sometimes the spouse could be a non-First Nations person. Certainly I think all First Nations believe in self-governance and that a non-First Nations member should not necessarily have the same rights. To me, that is a bit of a stumbling block.
Mr. Jacques: However, those would also be factors to be taken into consideration by the judge. Also, the whole social context of the First Nation would be put forward to the judge by the First Nation because the First Nation has a right to appear and make representations to that effect. These representations would be made to the judge.
Senator Dyck: You mentioned in your remarks the First Nations Land Management Act and self-governing First Nations. In their provisions, do they talk about the possibility that the person who is awarded the home might be a non-First Nations member and how they deal with it?
Mr. Duncan: They deal with it in exactly the same way this legislation does, to the best of my knowledge.
I am familiar with some reserve communities that are quite integrated with the adjacent community wherein the chief and council must accommodate the fact that there are a lot of non-members living on the reserve because they have married in, but they are not Indian and they are not band members. There can be children that come with that marriage that are or are not Indian. Generally speaking, I think we have First Nations children very often going to schools off-reserve because there is not an on-reserve school, and we have on-reserve non-First Nations children going to on-reserve schools.
I just think that is a reality. To try and draw a knife edge demarcation when we are talking about an area of human rights is not a productive discussion, I do not think.
Senator Dyck: I did run across a report, which I mentioned to the previous witnesses, that looked at the intermarriage between First Nation and non-First Nation people and living on-reserve. On over two thirds of reserves, it is over 50 per cent, so obviously there has to be some protection for both spouses, First Nation or non-First Nation. Whether this should be equal is another question. The interesting thing, though, is that we are talking about protecting women and children. In fact, most of those intermarriages are women marrying non-First Nation men. How does that affect the situation when we are talking about protecting women and children? It would mostly be men who, according to the First Nation, would not have the same rights. They would be the ones asked to leave, not the women.
Mr. Duncan: The legislation is gender neutral, so it can apply either way. All we are saying in our remarks is that women and children are, generally speaking, the most vulnerable. If the man is somehow being put upon and abused, which is not impossible, he would fall under the purview of the legislation as well.
Senator Andreychuk: Mr. Minister, I do not know whether this question is to you or to your legal counsel. We are using the term "non-First Nation," but are other band members not in the same position, on a particular reserve, as anybody else? In other words, the reserve rights are for the members of that band. If there is intermarriage or a common-law union between two Aboriginals, and they choose to live on one band's property, the other is like a non- Aboriginal person. Am I correct? The rights are for the people who are recognized within the band, and everyone else — Aboriginal, Metis or what have you — falls into the other category. It is not a question of Aboriginal and non- Aboriginal, but of reserve rights and everyone else.
Mr. Jacques: Yes, are you correct. The legislation uses the term "non-member," so an Aboriginal from another community would be considered a non-member on the reserve, depending, obviously, on the membership.
Senator Andreychuk: It is the members of the community who determine who lives on the reserve and has access to rights and whatever other allotments are entitled. Is that correct?
Mr. Jacques: Yes.
Senator Andreychuk: I wanted to be sure I was getting this situation.
Senator Dyck: If I look at clause 20, it says "a spouse or common-law partner whether or not that person is a First Nation member" — just as you said — "or an Indian." Those two terms are very different.
Mr. Jacques: It could be possible for a non-status Indian to be a member of a band. The terms here actually do say that whether you are a member is one thing, and whether you are a status Indian is another. Basically, however, this is for the members of the band.
Senator Dyck: I could be mistaken, but that says to me that if you are a spouse and not a First Nation member or not an Indian you have the same designation as the First Nation band member who may be an Indian. No?
Mr. Jacques: I thought we were talking about the legislation giving rights to non-members, as compared to members.
Senator Dyck: It says member or Indian.
Senator Andreychuk: What is the interpretation of clause 20(1)?
Mr. Jacques: It says you could be an Indian or a band member. You might be an Indian without being a band member.
Senator Dyck: It says "whether or not that person is a First Nation member or an Indian."
Mr. Jacques: It gives the right to anyone who is a spouse.
Senator Dyck: Exactly. That was my concern — giving the right to anyone regardless of whether they are a First Nation member or an Indian.
Mr. Jacques: I am sorry; I did not get that distinction.
Senator Dyck: It is somewhat confusing.
I had another question. Are you aware of the matrimonial property provisions of the Lac La Ronge Indian Band? They have taken this idea of non-Indian and Indian partner into consideration in their code.
Mr. Duncan: I am not specifically familiar with that, but I know there are a lot of band council initiatives on this front. They would all tend to be somewhat different.
Senator Dyck: They have non-member spouses sign a declaration saying that they do not get any interest in the land. That makes it very clear. It still revolves around the issue of whether or not the situation is as clear as you put out in your summary versus what we are hearing from other witnesses. I guess that is where we have to make a decision as to whether it is as clear as it could be. Is there a way that we could add another line or statement to the bill that indicates that this is your intention? Can you add something else that would make it crystal clear?
Senator Hubley: Thank you for being here today and helping us out.
I will move ahead to how it will come about. My first question is, will there be funding made available to individual First Nations' communities to assist them in developing their own First Nation laws with respect to family homes and matrimonial interests or rights?
Mr. Duncan: No, there is not. That is not the scenario that we have put out. What is envisioned is a centre of excellence. A non-political, national First Nation organization would provide non-binding guidance on the direction of the centre, in such areas as research and implementation-related activities. The plan is for the advisory committee to be comprised of key stakeholders that would include Aboriginal organizations, NGOs, centre of excellence staff and the Government of Canada.
There would be a targeted 50 per cent female representation on staff, in an advisory capacity, to address the concerns of women.
We think that is the way to go. It follows the model of some other things we have been trying to do.
Senator Hubley: Where would that be located?
Mr. Duncan: The bricks and mortar?
Senator Hubley: If it is bricks and mortar, yes.
Mr. Duncan: It is not decided.
Senator Hubley: Do you envision just one centre of excellence, or will there be opportunities to have centres across the country?
Ms. Paré: In the scenario mentioned by Minister Duncan, it would be a national centre of excellence that would provide non-binding advice, tools, maybe templates for First Nations to develop their laws, and public information for First Nations individuals or people living in the communities.
In addition to the centre of excellence, there would be a public education campaign to increase the awareness of the legislation and how it is being implemented. There is also funding to support education for judges and training for police officers that will help in implementing the legislation.
The Chair: Where will it be located and what will be the budget?
Ms. Paré: It has not been decided where the national centre will be located. Minister Duncan will have an opportunity to speak to his Treasury Board colleagues with respect to the implementation of the centre of excellence once the bill has passed.
Mr. Duncan: Campbell River, B.C., would be a good place.
Senator Hubley: How soon after the bill receives Royal Assent would this centre of excellence be established and could work begin by individual First Nations communities?
Ms. Paré: It will depend on the process for Minister Duncan to receive Treasury Board approval.
Senator Hubley: Is there no budget established today for that, Mr. Minister?
Ms. Paré: We would have to get confirmation.
Mr. Duncan: There is not a budget established. The Treasury Board process you are usually looking at would be about three months, and then whatever else has to happen.
Senator Brazeau: Let us go back to clause 20 of the bill. I am hearing this discussion about non-Aboriginal or First Nation and non-First Nation. It is unfortunate that we are even discussing this when we talk about human rights and the purpose of this proposed legislation, which is to protect, in particular, the rights of Aboriginal women and their children. There could be Aboriginal men as well. A First Nation status Indian could marry and have children with a non-Aboriginal woman. The children would be status Indians. There could be a situation of family violence where the First Nation man would be involved in a separation. The non-Aboriginal woman could go to the court and ask for exclusive occupation of the residence.
If I understand this clause correctly, that would protect the rights of the woman, in this case of family violence, and their children. Is that correct?
Mr. Jacques: Yes, that is correct.
Mr. Jacques: The right to occupy is not necessarily a right. You have to make your case that you have the right. I understand that there are fears, but these issues are dealt with by the courts on a regular basis when they do provide the rights to protection. In a case where the non-member is a woman, whether or not she has custody of the kids would be taken into account. A lot of factors would have to be taken into account. It is not a given that someone who does not have the CP or the interest would necessarily get the right to stay.
Senator Nancy Ruth: My question is about the ratification process. It is clear that the demand for some kind of protection came from women over the decades; and the test has been reduced from 50 per cent to 25 per cent. Minister, I must say, as a good-old-time second-wave feminist, I find it a little galling, I guess, to think that 25 per cent of the band ratification could be men. It is a hypothetical, but I would almost like to see some way that at least half of those voting for the MRP, when it is done, would be women. Is that a possibility?
Mr. Duncan: Certainly, it would be precedent setting. You would have to deny people who want to vote their right to vote. People who will be most readily mobilized will be the women. They will be the ones most vitally interested in the subject. Assuming they are 50 per cent of the population, this means ratification would require only half of the women to say yes, if nobody else voted. The ratification level of 25 per cent makes a lot of sense.
It is a pretty satisfactory threshold. We have had some ratification votes that I have been dealing with on economic and other measures where we have had voter turnouts as low as 9 per cent on the second try. Was it 50 per cent before?
Ms. Paré: Double majority.
Mr. Duncan: That was too much. I thank the committee for leading the charge on the change, but I do not think it is workable. That would go against the Charter if you were to tell people they could not vote based on gender.
Senator Nancy Ruth: I am encouraging that section 15(2) of the Charter be used in an affirmative action manner.
Senator Andreychuk: My concern is the children. Adults get into situations, and children suffer the consequences. It is trite to say, but it is still true. You have some preamble principles that are pretty good; and you do say to take into account the best interests of children, including the interests of any child who is a First Nation member, to maintain a connection with that First Nation, and to be informed by the First Nation with respect to cultural, social and legal context in the circumstances.
I laud you for putting that in the bill. I would like to ask why there is not a preamble statement, if you are putting these in, that the Convention on the Rights of the Child be adhered to. Why is it not there? This committee has been saying year in and year out that that is the international standard for children. At the least it should be adhered to and taken into account. I trust the convention has been considered, but it would be nice to see it in the bill.
Mr. Duncan: I will offer up a challenge: Do you know of a single piece of Canadian federal or provincial legislation that references it?
Senator Andreychuk: Yes, the Young Offenders Act.
Mr. Duncan: Does it reference the UN Convention on the Rights of the Child?
Senator Andreychuk: Yes, sir, it takes into account the Convention on the Rights of the Child. I put that out as a guide that would be extremely helpful for children. I would like to see us bound by it fully and have full ratification but, at least, it should be taken into account as one of the pillars of what we stand for.
Senator Martin: I want to connect some pieces from our previous session with a witness who raised concerns about access to justice. If I heard correctly about the centre of excellence, it will provide certain tools to increase that access. Is it fair to say that this bill will be the direct answer to improving access to justice because that is exactly what it will do? Would you comment on access to justice and how this bill would enhance that?
Mr. Duncan: Any First Nation with current band council resolutions on this subject, other than ones under FNLMA or self-government, are unenforceable. Once this act is in place, anything they do after that — consistent with matrimonial property and trust on reserve or if they create a band-ratified resolution — is empowered and enforceable. However, right now it is not.
Senator Dyck: I will go back to the issue of exclusive occupation of the home. In Wendy Grant-John's report to the previous minister, Minister Prentice, she said we did not necessarily have to consider that we were pitting the human rights of the women and children against the rights of the First Nation collective. She recommended the exclusive possession of the matrimonial home be made a temporary one. Could we add in the word "temporary" to the exclusive occupation order to make it clear that it is for a limited period of time? The Canadian Bar Association recommended that clause 25 of Bill S-4 — the predecessor to this bill — be amended to require the court to consider the principle of minimal impairment as a factor when making an order for long-term occupation of the family home on a reserve by a non-band member.
By doing that, I do not think we are taking away from anything. We are just trying to increase clarity. It would be quite clear that fears about a non-band member or non-Indian gaining rights to the land will not happen. I think people want to see it as crystal clear as possible. I do not think anyone wants to hold the bill up. We just want to ensure there is clarity so there is not a flurry of legal activities against the bill once it is passed. Is that a possibility?
Mr. Duncan: We will look at it. I think we have three suggestions from the meeting if I have categorized it properly. We will look at them, as we have done in the past.
The Chair: Thank you, Mr. Minister. We appreciate your giving us so much time. We look forward to working with you in the future.
The Chair: I now welcome National Chief Betty Ann Lavallée from the Congress of Aboriginal Peoples.
You have been here before. We welcome you again and would like to hear your opinion of this new version of the matrimonial real property bill. I understand you have some remarks.
Betty Ann Lavallée, National Chief, Congress of Aboriginal Peoples: Good evening, Senator Jaffer 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 peoples.
I am a Mi'kmaq woman who has lived all my life on my traditional ancestral homeland of Mi'kma'ki in part of present-day New Brunswick. I am also an Indian Act registered Indian with status tied to an Indian Act band. Although I live off-reserve and am a lifetime member of an Aboriginal council, I am recognized as a Mi'kmaq woman and I have a traditional governing Mi'kmaq grand council with treaty and Aboriginal rights with our own traditional laws, which I respect.
On the other hand, I am one of the few fortunate Aboriginal persons 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 fundamental rights of human beings. That was until recently.
Since 1971, the Congress of Aboriginal Peoples has represented the rights and interests of off-reserve, non-status, status Indians and Metis Aboriginal peoples living in urban, rural, remote and isolated areas throughout Canada.
CAP has always cherished Aboriginal women because women create life and are the continuum and backbone of our communities.
Mi'kmaq women have always been the decision makers on social, cultural and all matters of well-being of the family. This continues to this day, even though the Indian Act continues to promote and support a patrilineal approach to decision making.
Emma LaRocque, a noted Aboriginal scholar, has said that colonization has taken a toll on all Aboriginal peoples, but perhaps it has taken its greatest toll on our women.
We are slowly seeing the dismantling of the Indian Act and the associated problems that have been created by this outdated act, which 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.
Through the brave work of people like Sharon McIvor, Sandra Lovelace Nicholas and Jeannette Corbiere Lavell, to name but a few, we are taking the Indian Act to court and having it dismantled piece by piece for its violation of fundamental human rights.
We have never bought into the Indian Act. We have stood our ground and we have lived and continue to live on our traditional ancestral homelands. We, as indigenous people, continue on our homelands with our culture and our histories that in many cases span over tens of thousands of years.
CAP is 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 will promote respect and elevate the dignity and the worth of all the Aboriginal peoples of Canada.
Let us look at the suite of changes moving the relationships forward that aim to elevate 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 the majority of the survivors of residential schools. The government has announced the continuing support and celebrated an event with the Governor General on the occasion of the establishment and launch of the Truth and Reconciliation Commission in the fall of 2009.
In June 2009, there was announced and rolled out the forward-looking Federal Framework for Aboriginal Economic Development with its four key pillars. This framework is accompanied with a new Aboriginal Skills and Employment Training Strategy. ASETS is also laying out a carpet for partnerships with industry and business Canada and includes on- and off-reserve men and women.
In May of 2009, we had the repeal of section 67 of the Human Rights Act, which barred recourses for actions taken under or through the law and intent of the Indian Act. This repeal of section 67 of 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 convening of serious working tables to explore the whole issue of registration, membership and citizenship — human people issues.
The government is setting up a separate exploratory process to learn about membership, registration and citizenship. All national Aboriginal organizations, NAOs, agreed that the exploratory processes will be vital and pivotal to reconciliation.
This government announced 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 and, most significantly, the rights of the indigenous peoples of Canada as well as those throughout the world.
We have the Prime Minister's invitation to the national Aboriginal organizations to meet and share with him our goals, aspirations and priorities. This is not a one-time meeting or request; rather, an honest overture for a continuum of ongoing meetings directly between the prime minister and NAO leaders.
We have the announcement that the Government of Canada will commemorate the legacy of Indian residential schools through a permanent installation of stained glass artwork in Centre Block on Parliament Hill.
We have the matrimonial real property bill, which CAP strongly supports and which is a significant piece of legislation. In the case of the MRP, the focus is the dignity and worth of spouses and their children on-reserve who face breakups of the family home.
This suite of actions over a very short period of time is significant to the Aboriginal peoples of Canada and Canada as a whole. The government clearly recognizes the humanity of Aboriginal men and women.
The MRP act has more significance than meets the eye because it goes to the heart of the issue: the dignity of the person.
The bill is addressing the real human issue of an Aboriginal person, sometimes often taken for granted by other Canadians. A spouse within an Aboriginal relationship should not be denied or put out on the street alone and without any recourse because of a family or marital 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 RCAP process, three parliamentary committees, the Standing Senate Committee on Human Rights and our own CAP-specific process on matrimonial real property.
In addition to this, various United Nations 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 international obligations.
Aboriginal women and men 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.
This often means that the spouse and children have to leave the reserve and are forced to start over in a non- Aboriginal environment without any outside help or any help from any Indian Act agency.
These men and women frequently approach CAP's provincial affiliates seeking services and support where either we do not have the resources or we have limited capacity to provide to them. This places CAP is a difficult position, and these women and men are forced to turn to shelters, if they are available in their area. Faced with this hostile environment without support, many return to a familiar but sad and violent relationship and the cycle re-enacts itself over and over, often carrying on to another generation.
Currently, when a marriage breaks down, the husband can force his wife and children to leave the home or vice versa. There is no legal recourse for these women or men. They become homeless and are often forced to move off the reserve where there is even less support, and, if they are lucky, they can move into a shelter where a shelter exists. Sadly, the victims of abuse are the ones forced to leave the family home because there is no recourse for enforcement, counselling, protection from the abuser or determination of accessing proceeds for matrimonial real property.
CAP views Bill S-2 as a positive and significant step to recognizing the dignity and worth of the Aboriginal person. That is an important aspect of Bill S-2, which often gets lost. Finally, a government is taking a bold step to ensure that the Aboriginal spouse and his or her children on a reserve have a legal recourse and can expect some equitable distribution of matrimonial real property assets and enforcement, in the event of a divorce, separation, family violence or death.
A spouse and children without a home have nothing. A home is the foundation for beginning 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. We have over 633 band councils and over 1,000 reserves and Indian settlements across Canada. Some have fewer than 50 families. This blatant practice of discrimination against Aboriginal human dignity must end. For years, Aboriginal women and men have been struggling for recognition of their worth, their dignity and their rights. Let us finally have the courage to provide the legal tools for Aboriginal spouses to use the rule of law on-reserve as their sisters and brothers can now use off-reserve.
By taking this national approach, immediate protection will be provided and will be consistent right across Canada. The Indian Act band councils will have the right to develop matrimonial real property laws to apply on their reserves that reflect the cultural and social traditions of the community with respect to the provisions of equity of the law. Bill S-2 recognizes that communities are best placed to make decisions related to matrimonial real property.
An implementation process will follow on the heels of this legislation once it is passed, and will be important to the outcome and the successful implementation of the matrimonial real property act applicable on Indian Act reserves.
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.
The Congress of Aboriginal Peoples looks forward to being engaged in this training. We need to ensure that the MRP regime also looks at the real issues that women, men and children may still continue to face if and when they leave the reserve because of a marital breakdown. We cannot abandon the human needs and forget the human condition.
CAP wants to ensure that women and men leaving 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 and without money and without recourse.
CAP is determined to see that Aboriginal spouses of broken marriages have recourse to matrimonial real property legislation that reflects their worth and dignity, something that is taken for granted and is available to other spouses within the federation of the peoples of Canada.
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, violence and betrayal of trust. The issues are challenging and will require the development and implementation of effective initiatives and action plans; however, any measure that improves the lives of Aboriginal women, men and children and that protects their rights, dignity and worth as human beings is worthy of our time, 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.
To this challenge, CAP and its affiliates are prepared to come forward and work with the government to ensure that information and a helping hand can and will be available to the Aboriginal spouses and children who are in the midst of a marriage breakdown and may have to leave a reserve.
The Chair: Thank you very much for your presentation. When you last appeared, when Bill S-4 was being studied, you noted the verification process was needed. As you know, the provisions relating to the verification officer do not appear in Bill S-2. Do you have any concerns about the removal of the provisions relating to the verification officer from Bill S-2?
Ms. Lavallée: I was somewhat surprised, but I would hope that there would be a time frame. We have to trust. This bill is a give-and-take situation. We will have to trust that the chiefs and the councils will implement. I know some of them are right now. They are working with the Canadian human rights centre to get a head start on this bill and to be able to get measures put in place so that if and when this bill becomes law, they are able to implement it in a short period of time.
In a situation like this, I would have liked to see some sort of verification, but, again, it is a give-and-take situation. As I said in my presentation, these issues are difficult; sometimes you have to give a little to get a little. It is about compromising, but, at the end of the day, my main concern is the spouses and the children that will be affected by this bill.
The Chair: Thank you.
Senator Nancy Ruth: It is great to have your support.
Everyone is articulating that it does not solve problems on reserves for things like violence or lack of housing or bad water or any of the hundreds of grounds.
However, if there was one recommendation that you could make to strengthen this bill to make it more responsive to the needs of women living on reserve land following a marriage breakup or the death of a spouse, what would it be?
Ms. Lavallée: I have actually experienced this, senator, where I have had a man come to me who had custody of the two children. This is not just a woman's issue. This is not a gender issue. Unfortunately, and I hate to say it, but some of our women are becoming just as violent as some of our men. That is because of the intergenerational problems of drugs, alcohol and abuse. That is the reality we deal with every day. I hope there are provisions that there be emergency accommodations made for these families to be able to go to a safe place and be protected, in particular the children.
As we all know, we have seen situations where in some cases the person being abused is forced to return to the home and, unfortunately, sometimes the outcome is not very pleasant. I would like to see some sort of emergency location created that victims could be taken to.
Senator Nancy Ruth: Is that something you want to see in the bill?
Ms. Lavallée: I would love to see that in the bill. I would also love to see a definite time limit as to when this must be implemented.
Senator Nancy Ruth: When bands had their MRP —
Ms. Lavallée: Similar to what they did when they repealed section 67 of the Human Rights Act. I believe they had given them a period of two to three years on that. I would like to see this put in place as quickly as possible.
Senator Nancy Ruth: What would that time limit be?
Ms. Lavallée: In a case like this, where it involves potential harm to individuals, particularly children, I would like to see it put in place in 12 months minimum.
Senator Nancy Ruth: Given what Senator Jaffer has said about the verification officer, I had suggested to the minister that I would like to see that of the 25 per cent of people who must vote for MRP in First Nations, at least half of them be women. What do you think of that idea? Do you support it? Would you raise it or lower it?
Ms. Lavallée: Considering that most of the population of Aboriginal communities are women, I think you will see some women who will support that. I do not know if you will get everybody out. I think there will be some fear around this whole situation, which is natural when you try to do something different or new. There will be fear-mongering going on. It has already happened, so I think I would have to agree with what the minister said, that it will be difficult to get 25 per cent of the population out to vote.
Senator Nancy Ruth: I had not realized that the majority of people on reserves were female.
Ms. Lavallée: I am not saying on reserves specifically, but we have a large population of females in total.
Senator Nancy Ruth: In the governing bodies where those women are living, is most of the leadership male or female or is it half and half?
Ms. Lavallée: I would say the majority of them are still male.
Senator Martin: I want to ask about the role of CAP and perhaps the role of national organizations like AFN. What role will you play in the ongoing partnership with the government? I know the previous witness raised issues about access to information in some of the remote communities, that even with the enactment of this bill, there could still be access issues.
In your final comment, you talked about the ongoing role you will play. Would you speak a bit about the importance of that ongoing partnership of your organization and other national organizations with these many band councils, not so much the councils but with the government in dealing with the many groups that will have to be given some facilitation towards achieving some of the goals outlined?
Ms. Lavallée: My understanding is that AANDC, Aboriginal Affairs and Northern Development Canada, will be working with the five national Aboriginal organizations, those affected by this bill, to establish a centre of excellence. We will have feed-in to this centre in order to be able to put forth comments from our communities; some of our communities have land claims. We will be able to work with the Canadian Human Rights Research and Education Centre and have access to resources that would be available to individuals and band councils, whether to develop a bill for ratification in their communities or for individuals to obtain information and research as to what their rights may or may not be.
Senator Martin: There are always critics who talk about a lack of consultation and that there needs to be more from the affected community. Do you feel that as an organization you have been adequately consulted, that you have been at the table and this will be ongoing?
Ms. Lavallée: We have been at the table from the very beginning. As a matter of fact, this started when I was the chief and president of the New Brunswick Aboriginal Peoples Council because I remember holding the first session in New Brunswick, in which we travelled around the province getting input from the various communities. At the same time, AFN was doing the same with their communities and with the tribal councils. Yes, I believe there has been adequate consultation with those who wish to participate.
Senator Martin: It is time. Thank you for your presentation this evening.
Senator Dyck: I was not clear when you made a comment about the percentage of women living on-reserve and off- reserve. What was it that you said?
Ms. Lavallée: I said that I believe women outnumber men in the global Aboriginal population, not on- or off-reserve specifically.
I do believe that those of us who have the opportunity to participate if a community decides to have a referendum on an issue — as I said, I am a status Indian registered against a band, and normally when my band has issues, sometimes they will hold referendums. Therefore, chances are I would get to participate in something like that.
Senator Dyck: Being a person who loves numbers, I just happen to have in front of me numbers for on-reserve and off- reserve males and females across Canada. It is pretty much equal between male and female. On-reserve, there are 51 per cent male and 49 per cent female. Off-reserve, there are 47 per cent male and 53 per cent female. There are slightly more females off-reserve, which could be due to women leaving the reserve through loss of status or for obtaining education, who knows. It is not a huge difference. It is about equal.
The question I have for you is with regard to housing in terms of shelters and homes. In your role as president of CAP, do you have any information with regard to what the housing situation is on reserves? What is the shortage? How big is the need? How many homes are needed?
Ms. Lavallée: I do not have the actual numbers, but in my discussions with National Chief Atleo, that is an issue we always discuss. We know it is as huge a problem on-reserve as it is off-reserve. There is no definitive line. It is a problem. That is why there are very few shelters and, in some cases, there is no recourse but for the person to go back. That is why I would like to see some sort of designated location or something.
Senator Dyck: When you say "for the person to go back," if there were a housing shortage and the family is breaking up, they will need two houses instead of one.
Ms. Lavallée: Definitely.
Senator Dyck: That will exacerbate the situation. If you already have a housing situation, it will be worse. Are there shelters on-reserve?
Ms. Lavallée: No, not to my knowledge.
Senator Dyck: Do you not think that would help the situation on a day-to-day basis as much or more than a bill? Do we need shelters on reserves?
Ms. Lavallée: I think we need shelters both on and off reserves because it is the same situation off-reserve; most of our Aboriginal women will not go to a non-Aboriginal shelter because of the fear. We all recognize that it is something we will all have to work at.
Senator Hubley: My question is just a supplementary, but it does have to do with housing. When you mentioned the emergency housing that would be required, were you thinking of that being on-reserve or off-reserve? I am sure that not all breakups are violent, and so there probably would be some situations where one of the spouses would be stay with the children while the other one would move out, but not necessarily off-reserve. Does that happen?
Ms. Lavallée: Yes.
Senator Hubley: You do need that emergency housing then?
Ms. Lavallée: You do. In some cases, if it is a nice breakup — if there is any such a thing as a nice breakup — you will have some family members who will go to live with their family. If they have come to an agreement that it is over, you will normally have one spouse or the other go and stay with family members, until such time as something comes available. I have also seen situations where elderly women have, because of a break down in a family situation, given up their home to allow their daughters-in-law and Aboriginal grandchildren to stay on the reserve.
When I talk of emergency housing, we had a partnership with some of our colleagues on-reserve — some chiefs and councils in New Brunswick — because we did have some social housing units throughout New Brunswick. We were able to work together, in some cases, to take the family and place them into these houses. During the last rounds of housing monies given to us, we were able to work with the women's shelter to enhance it. We were also able to develop what we call second-stage housing for the families that were affected. We put our differences aside and put the children at the forefront in these situations because, at the end of the day, that is who needs to be protected.
Senator Hubley: Thank you.
The Chair: We want to thank you very much for being here and always making yourself available. We will certainly take your comments into consideration. Thank you.
Ms. Lavallée: Thank you, senator.
(The committee adjourned.)