Proceedings of the Standing Senate Committee on
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.
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
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.
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.
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.)