Proceedings of the Standing Senate Committee on
Human Rights
Issue 5 - Evidence - November 28, 2011
OTTAWA, Monday, November 28, 2011
The Standing Senate Committee on Human Rights met this day at 2:02 p.m. to study Bill S-2, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[Translation]
The Chair: Honourable senators, this is our fifth meeting of the Forty-First Parliament of the Standing Senate Committee on Human Rights. We have been entrusted by the Senate with a mandate to study issues respecting human rights in Canada and elsewhere in the world.
My name is Mobina Jaffer and I welcome you to this meeting.
Today we continue our study of Bill S-2, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves.
[English]
I would like to introduce the senators that are with us presently. There is Senator Brazeau, the deputy chair of the committee, Senator Wallace, Senator Nolin, Senator Nancy Ruth and Senator Ataullahjan.
We also have our committee clerk, Daniel Charbonneau, and our Library of Parliament analysts Julian Walker and Marlisa Tiedemann.
For most Canadian individuals who are facing a breakdown of their conjugal relationship or suffering the loss of a spouse or common-law partner, legal protection is in place to help ensure that matrimonial real property assets are distributed in an equitable fashion.
Unfortunately, this is not the case for those living on reserves governed by the Indian Act. For men and women living on reserves, death or the breakdown of a relationship often leads to homelessness, financial woes and insecurity. This is because the Indian Act is silent on issues of matrimonial real property rights, and there is no legislation in place to fill this gap.
[Translation]
Our committee is very familiar with the issue of matrimonial real property on reserves. In fact, in 2003, we studied the property rights of women living on reserves. In a report entitled A Hard Bed to Lie in, the committee dealt with the need to adopt a law so that Native women could enjoy the same rights as the rest of Canadian women in the event of a breakdown of their marriage or marital-type relationship.
In 2004, the committee published a follow-up report with the title On-Reserve Matrimonial Real Property: Still Waiting, which placed greater emphasis on the need to adopt and implement legislation.
[English]
In both of the reports, the 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 that some of those recommendations are reflected in the bill we have in front of us today.
Senators, today we will start with Mary-Ellen Turpel-Lafond who is a child advocate known across the country and certainly in my province of British Columbia.
Ms. Turpel-Lafond, thank you for joining us via videoconference.
Mary-Ellen Turpel-Lafond, as an individual: Thank you very much. It is a pleasure to appear before the committee. I have a few opening remarks and am pleased to answer any questions.
By way of background, I am the Representative for Children and Youth for British Columbia, which is an independent officer of the Legislative Assembly of British Columbia. I do not speak on behalf of political parties. I work with everyone in the legislative assembly and closely with First Nations leaders and others to support First Nations children.
I am a member of a First Nation — the Muskeg Lake Cree Nation in Saskatchewan — along with my husband of 16 years and four children. I am well aware of the lengthy debate that went into the preparation of this bill.
I want to start by saying that from the lens of looking at those who can be particularly vulnerable in First Nations communities — especially women who are victims of violence, and children — the bill is a promising step to protect victims of domestic violence on-reserve and permits some form of asset division when relationships break down.
I approach looking at the bill's provisions by considering whether or not there are adequate protections in the interim period, when the bill will govern the rules around domestic violence, protective orders et cetera, leading to First Nations laws being recognized. I am looking at it from that lens.
I believe that good legislation and policy must be grounded on good research. In particular, my office undertakes a vigorous program of research and evaluation around the safety of children. We have looked closely at domestic violence.
This bill will respond to a safety gap, not only in British Columbia but across Canada. Like all legislation, I am not suggesting it is perfect. However, it fills a significant gap. Considerable work has gone into it, including the work informed by your committee in the past.
I think there is a very large task ahead with respect to the domestic violence component. I note that on November 14, 2011, the Assembly of First Nations, AFN, and the Caring for First Nations Children Society released a study looking at child protection issues for First Nations children in particular. When there is an intake in child welfare, they looked at how often the allegation of maltreatment of a child is substantiated. In a very significant study published by the AFN, they found that in about 58 per cent of the cases there is a substantiated claim of neglect or maltreatment of children. In those claims, more often than not intimate partner violence is part of the dynamic happening in that family for which the child welfare authorities have become involved. It is important to understand this legislation in terms of children being exposed to violence, the ongoing need in communities to build a stronger system of support for victims of violence, and a better understanding of the needs of children exposed to violence.
The legislation before you does provide for some very significant protections, such as the emergency protection orders in clauses 16 to 19. I think that is extremely positive. The British Columbia legislative assembly rose on Friday after the last few months of sitting. During the last session, they passed a new Family Law Act in British Columbia, which is quite parallel to some of the areas you are looking at here. It included a strong and complete definition of family violence and provided for emergency protective orders for victims of violence to be enforced by the police.
For some of these elements, at least for British Columbia First Nations, there could be better coordination. As First Nations' laws develop, more work will be required, but I think that is quite positive.
The other small point I wanted to make by way of introduction was that there are a few areas where there could be more clarity in this. In particular, there is a bit of a challenge in that family violence is defined in clause 16 of the bill before you, but it does not necessarily identify fully children's direct or indirect exposure to family violence. I think that might be something I could commend to you to consider. I have filed a few pages with you today of very minor areas that may strengthen this to ensure that children being exposed to violence is a factor that a court giving a protective order will consider.
I think there is a small challenge in this bill because the one provision has a definition of family violence and clause 20 does not have a definition of domestic violence. I think we need to look at whether there can be a definition to apply to this entire bill. There may be some good reason for that. I have had a chance to read the Hansard leading up to today and I have not seen that explained. That may give rise to some confusion, so I have made some minor suggestions, all very supportive of the bill.
It is also important with respect to moving forward with the bill — and I appreciate that the committee is looking at areas that are left to implementation. Changing a law does not necessarily change behaviour. It is going be very important with these emergency protection orders in particular to ensure they are accessible through the court system, through tele-applications and so on, reflecting the remote locations of many First Nations.
In many First Nations I visit and work in with children, there is no police officer stationed in the community or available to it. It is significant that the First Nations government take on the role of passing laws and taking on a stronger enforcement role, ultimately, to make these orders more effective.
Certainly, an emergency protection order will not supplant the need to have safe houses in communities and closer regulation of a perpetrator of violence, because there is not always a high degree of safety with respect to the infrastructure and the supports that are in communities. I do not want to paint with a broad brush, but my experience has been that there are more intense supports in some communities than others.
One other small suggestion I made is that I am concerned about the emergency protection orders having a duration of only 90 days; an ex parte application can put an order in place for 90 days. That is a short period of time to obtain, settle and enforce matters, and I fear there will be a lot of returning.
The recently passed B.C. Family Law Act allows for a one-year order — although it can be vacated earlier — understanding that you need time. Sometimes the property issues are combined with criminal law issues; sometimes there might be a supervision order in the child welfare system. Particularly in domestic violence, you tend to need more time to sort these things out.
I made another small and supportive suggestion, which is that you may want to consider expanding that timeline to make it more practical in the administration of justice and more timely. You can always vacate the order, but give the time because 90 days passes quickly before these things can be sorted out.
The final issue I will make note of is with respect to the implementation plan around the act. Again, I appreciate that is not within the purview of this committee, but it is the government's stated intention to have a detailed implementation period, including developing a centre for excellence. I welcome that. I think that is extremely important.
I hope that centre for excellence will have a strong research component around family violence, breaking some of the intergenerational cycles around violence and how that impacts on children, especially how we best and effectively resolve disputes within families so they do not become broader child welfare or criminal disputes. I think that centre of excellence, partnering effectively with First Nations, can make a significant contribution on the implementation, and partnering as well with police to ensure they will enforce protection orders. A protection order without enforcement is not of much value to a victim of violence. We need to ensure those are in place and that consequences for breaches are meaningful as well.
These are my brief opening comments. I am pleased to answer any questions. Just note again that I made three minor recommendations around the definition of domestic violence and the time frame for orders, and I have asked the clerk of the committee to file it with members of the committee for your consideration.
Shane Gottfriedson, Chief, Tk'emlúps Indian Band: [The witness spoke in his native language.]
Good afternoon, honourable senators and members of the public. I am Shane Gottfriedson, Chief, Tk'emlúps Indian Band, and with me is Connie Leonard, Councillor. We also have two members with us, Linda Thomas and Barb Morin, who are our in-house legal counsel.
We would like to acknowledge the Algonquin peoples, whose territory we stand on today.
First, we have some traditional customs that we do as part of our traditional ways. We have some tobacco, if we could have our ladies present it to the senators. It is part of our customs and tradition. We come here in a good way to offer our input toward Bill S-2.
We offer tobacco as our way of making a good gesture. We come here speaking our words of strength and part of our teachings that have been passed down by our ancestors and elders but, most importantly, to offer you some good medicine as well to do the work that you do as senators. That is the meaning of tobacco.
On behalf of the Tk'emlúps Indian Band, we would like to thank you for inviting us to speaking to Bill S-2. We would like to express our special thanks to Senator Jaffer for encouraging our input.
We are here to present our position on proposed Bill S-2, which Councillor Leonard will speak to. First, I will tell you a little bit about our community. Our band is located in the interior of British Columbia. We are part of the Secwépemc Nation. Before contact, our population was estimated at 100,000 and occupied a vast territory from the Columbia River Valley westward to the Fraser district and south to Arrow Lakes, covering 145,000 square kilometres.
After contact, the colonial government divided us into 17 distinct groups with designated parcels of land. Today our nation is organized into seven divisions. Our band, including Skeetchestn Band, represents the Stkemlúpsemc division of the Secwépemc Nation. We are known as the Tk'emulúpsemc — People of the Confluence.
The meeting of the North and South Thomson rivers is a historic trading site and remains economically important to the interior of B.C. Due to our community's great economic and military strength, as well as our ancestors' pivotal role in the creation of peace accords, the Tk'emulúpsemc were designated the Secwepemcul'ecw, "the real Shuswap."
As the Secwepemcul'ecw, we continue to demonstrate our diplomatic strength. We are progressive leaders in leasing, taxation, business development, and the development of legislation and negotiated agreements with government and industry.
We are a First Nation that believes in family justice. We have built a national reputation as an organization that stands up for our people. We are one of two bands investing hundreds of thousands of dollars in a class action lawsuit addressing the injustices suffered by our day scholars. We have taken a clear stand and a leadership role in addressing the issue of the missing and murdered women of Canada. We make significant investments to ensure the health and wellness of families within our First Nation. In short, we put families first.
Given our capacity and ability to speak before you today, we feel a duty to speak up and underscore our concerns related to this legislation, as its affects our, and every, First Nation across this country.
It is with this history, knowledge and experience as a government that we are here today to present our position on Bill S-2. I now turn to my councillor, Ms. Leonard.
Connie Leonard, Councillor, Tk'emlúps Indian Band: Thank you Chief Gottfriedson, Madam Chair and senators. My name is Connie Leonard, and I am a Secwépemc woman, a Tk'emlúps band member and an elected community leader. I have focused my energies toward understanding this proposed legislation because of the scale of its impact on my nation and First Nations generally.
While my concerns are numerous, out of respect for your time, I will canvass a few core issues.
Fundamentally, a flawed process produces a flawed result, with inherent risks that serve no one. If our objective is family justice, then we are on the wrong path.
This crooked path starts with a paternalistic and positional approach that is in direct contrast to the objectives of a meaningful, collaborative relationship between First Nations and the Government of Canada.
The federal government held one meeting over a period of a few weeks in a province that is home to over 200 bands. INAC presented a complete legislative package that was not open to meaningful revision, compromise or dialogue.
This cannot be characterized as consultation and can only be described as window dressing. Still, the government pressed on, ignoring the key recommendations of their own ministerial representative and First Nations advocacy groups.
Specifically, there was a clear recommendation to develop a broad policy framework to manage the process of change. This process is to be based on recognition and respect for jurisdiction and treaty rights, as well as on internationally recognized human rights values.
In addition to the major flaws in the process, the legislation is flawed on a number of other fronts.
Our specific concerns include the following:
First, Bill S-2 violates the United Nations Declaration on the Rights of Indigenous Peoples. This Canadian government-ratified declaration includes our rights to self-determination and self-government and to create our own social, legal and cultural institutions.
Law-making power in relation to matrimonial real property is an aspect of our inherent authority in relation to our land and our people. Solutions for matrimonial issues will only come from our community. Only the Secwepemcul'ecw speak for the Secwepemcul'ecw.
Canada has told the world it agrees with us having these rights.
Second, this process was flawed from the start. We understand the need for family justice. Were we asked and supported, we would have participated in collaborative consultations to help craft legislation that balances our interests as a people with those of families within our territories.
Instead, we were presented with a colonial, common-law approach, a positional, pre-drafted bill and a foregone outcome. This does not lend itself to interest-based, good-faith discussions, addressing the needs of our people.
Right now, you are only creating the illusion of choice. It is like Henry Ford said when selling model Ts, "You can have any colour you want, as long as it is black."
The few short dialogue sessions were not meaningful consultations by any reasonable standard. Case after case from Haida onwards points to clear obligations that have been clearly unmet. The Tk'emlúps had no opportunity for consultation and accommodation respecting this proposed law.
It is only reasonable to expect consultation, collaboration and accommodation in developing our matrimonial real property law based on our own traditions and culture. We have been balancing individual and collective rights as a society since long before the first settlers came. We have demonstrated our capacity to craft our own legislation many times.
Third, there are better alternatives to the courthouse. We object to the transfer of our decision-making authority to another government entity and the further devolution of our powers. It creates a reliance on a colonial-based and over- burdened provincial court and legal aid system. Resources are already lacking for family law matters, and our people do not view the court system as a place of justice for them.
With some help, we can develop alternative dispute resolution mechanisms that reflect our laws and traditions and take into account our collective rights to the land, balanced with our support of family justice.
Fourth, we need to invest in real solutions. The Government of Canada has to honour its commitment to meaningful consultation and accommodation. The position taken thus far is that it will not provide resources to help us draft, develop or enact our matrimonial real property laws. Justice takes some time and costs some money. No one knows that better than First Nations. We have been investing in our rights and title for a long time, and it is only recently that we have convinced legislators that the correct path is the one we walk together.
What we cannot accept: Our rights and title are not negotiable. The legislation fails to protect our inherent United Nations-mandated and government-ratified right to self-government and displaces our traditional laws.
We cannot allow the creation of community disharmony due to an imbalance between recognizing individual rights and the collective rights to the land.
Without appropriate levels of funding, First Nations governments will fail in drafting, enacting and implementing our own matrimonial laws, regulations, policies and dispute resolution mechanisms.
Chronic housing shortages already exist in every First Nation. The proposed legislation only aggravates this problem and amounts to robbing Peter to pay Paula.
We have solutions: Recognize our jurisdiction. A concurrent jurisdictional power is the proper approach that would respect First Nations and meet Canada's constitutional, international and legal obligations.
Provide sufficient time and resources to fully engage First Nations governments and their chosen advocacy organizations in meaningful consultation and accommodation sessions. In turn, First Nations will need time and resources to educate, research, develop and implement their legislation and community-driven solutions. For example, we could do more for the protection of women and children by effectively addressing the need for on-reserve safe houses.
In closing, we want to state again that we share a belief in family justice. The path to that justice is the one that we walk together as equal partners. Madam chair, that concludes our submission. We would be pleased to answer any questions.
The Chair: Thank you very much.
Ms. Turpel-Lafond, I have two questions on the matters you covered. First, you have suggested, if I am not mistaken, that it be extended to one year instead of 90 days.
I have another proposal, and I would like you to tell me what you think of it. It is that the 90 days would exist, and the further 90-day period would be up to the judge. The judge would decide how much longer the second period would be. May I have your comments on that?
Ms. Turpel-Lafond: I think that that is a solution. The challenge is that there will not necessarily be one judge seized with the matter. Let us say you apply, get the 90-day order and make it available to be renewed. The challenge with the administration of justice, for instance in British Columbia — and let us say you are doing a tele-application — is that you may not get the same judge. The access-to- justice issues, which I know other people who have appeared before you have addressed, are concerns.
It is possible to phrase it for one year or a shorter period and give it some scope if you feel you want some judicial discretion. I cannot see, given the research, 90 days being an adequate period.
I will note that once the First Nations laws come into effect, for instance in British Columbia, there could be 200 new laws passed under this act; they may prescribe their own time periods, which might be longer. I think that 90 days, based on the research and practice, is probably too short. You may want to make it three months or longer, but I think a year is a more practical period.
The Chair: In light of what you said about the centre of excellence, and the committee has been very much interested in that, to help people set up their own matrimonial regimes, do you think a two-year transitional period would be a better time period than one year?
Ms. Turpel-Lafond: From reading the material that the government has posted, I understand they have talked about an information period and then a centre of excellence period. It is important, because I noted even with the co- presenters this morning, there may not be an accurate understanding of what is in this bill — for instance, the suggestion that the family matrimonial property regime, once the First Nations pass the laws, will be concurrent. In fact, my understanding from reading this law is that when the First Nations pass their own laws, they will have exclusive rather than concurrent jurisdiction. When I look at British Columbia, there are two treaties in place. There is a treaty moving toward finalization, the Lheidli T'enneh treaty in Northern B.C., and then the Tsawwassen treaty. In both of those, the treaty negotiations led to concurrent jurisdiction in this field that was not covered in the Maa-nulth Treaty. The legislation before you allows the First Nations to have exclusive, not concurrent, jurisdiction, so it is even broader than in the treaty process. There will be an important period of time for even First Nations to be able to get accurate information about what is in the bill, and of course how it will interface with other systems and how we can make these harmonize effectively.
I am supportive of the initiative, but I also remain supportive of the bill, because it addresses in the meantime a safety gap that needs to be addressed.
The Chair: I have a question of the Tk'emlúps band. Chief Gottfriedson and Councillor Leonard, how easy or how difficult is it to access justice for the people of your band?
Mr. Gottfriedson: When we talk about justice, it is not just as simple as justice. When you look at our governance structure, we work so closely with justice and child welfare, and our whole governance structure all work hand in hand. One of the challenges we face on the justice side of things is that we are not adequately resourced from Canada to be able to provide the power of justice that I think we need. The same goes with our child welfare issues. Right now, we are facing many issues from an administrative point of view on delivering the services not only from a cultural perspective but to deliver those services for our children and family services. The question is towards an adequate justice system. We are working towards having our own First Nations court system to provide that restorative justice, and with a community- driven process we have been working with the justice system in British Columbia and advocating for our own First Nations court to deal with our own First Nations bylaws and issues.
Ms. Leonard: Madam Chair, when we say "access to justice," we are accessing justice in a provincial court that has common law derived from colonial culture. That is the issue. How can we as First Nations people be guaranteed to go through a court process that highlights their own cultural interests and common-law approach? First Nations people view their relationship with the land and its people in a very different context than people who do not belong to First Nations. With that being said, access to justice creates an interesting problem for us as we try to work together in a good way to harmonize our interests and our priorities. Certainly, our people do not see the provincial court system as a way of accessing justice for our culture.
Mr. Gottfriedson: When we talk about justice, from our perspective, we have always prided ourselves as a community in working with government and industry to provide practical solutions towards how we conduct business. We have always prided ourselves on that, but in the last couple of years we have had to stand up for the inherent title and right by forcing and going to the court system. That is the last remedy that we have always looked at. Right now, we have five different legal cases that we are challenging because that is how passionate we are about our title and rights.
Senator Brazeau: Hello to you, Ms. Turpel-Lafond. It is nice to see you again. Thank you for your presentation.
Given your experience with working with First Nations children, in particular, you did mention that Bill S-2 is a promising step in the right direction. However, do you believe that, if passed, the bill, in reality, will actually protect the rights of Aboriginal women and their children because of this legislative gap that we currently have?
Ms. Turpel-Lafond: Yes, I think it is a very important step. I am mindful of the fact that there are self-government interests here. I am very mindful of the fact that the preamble to the bill has been carefully drafted to protect and preserve the self-government powers of First Nations. They may feel strongly they do not need it spelled out in the act, and that it is already in the Constitution, but there is a very strong preamble. In terms of the gap that needs to be addressed, at some point we need to step into that gap for the sake of safety. For the elevated level of family violence that we face with respect to some of the challenges in communities, I think the act provides a necessary remedy. These two key things, this emergency protection order, which is crucial in a time of crisis and can in fact save lives — we know that — and also the exclusive occupation order, are significant. They are almost taken for granted by victims of violence everywhere else in Canada, but they are not consistently available on-reserve. We know the history; we do not need to replay it. I think this is a promising area.
I welcome the development of First Nations laws that will go further. If there are strong First Nations traditions, they will be more protective and supportive to victims of violence and this may spark that development, but in the meantime we cannot leave vulnerable people without a remedy. I commend this careful balancing of the right of the First Nations to pass their laws, but an interim regime that will protect victims, in particular of violence, who, as you note, are disproportionately women.
Senator Brazeau: Essentially, what advice would you give to perhaps some of those who oppose this bill, given what you just said and given the fact that, if passed, any First Nations community will be able to enact and develop its own legislation with respect to matrimonial real property? What would you offer to those who are opposing this bill, because there is a vacuum as we speak and the rights of Aboriginal women and children, in particular, but in some cases Aboriginal men as well, need to be protected in case of family breakdown?
Ms. Turpel-Lafond: People are entitled to have their own views and positions. We have a great diversity in Canada, even among First Nations. There is a powerful aspect to this legislation, which I mentioned earlier, which is that the First Nations can pass their own family laws reflecting their land tenure systems, their First Nations traditional systems around land. They have to give notice of what those laws are. I think that is reasonable. People need to know what the laws are so they can make sure they align. Sometimes there is intermarriage; someone from one band marries someone else, but they may not know the customs of their people or be at the same tribal group.
What is significant in this bill, especially when I read the provisions allowing for First Nations laws, is that it will allow for exclusive jurisdiction. That is the highest form of authority that one can obtain. As I said, the treaties only allow for concurrent jurisdiction. It is almost ironic. I think it was intended that this be exclusive.
From the First Nations side, if you want to occupy the field of matrimonial property, you have been invited to do so under this legislation. It is not displacing that. It is actually recognizing that, but put something in place today. That is the big point. Maybe it will focus people's attention and be helpful.
I know the Westbank First Nation in B.C. has worked on this and passed some laws, but there are not many First Nations in Canada — and I have followed this carefully — that have passed laws pertaining to their family system in the sense of formally notifying other systems of what they are. This will require some formality and support, but it will be a very positive step. I do not see it as a retrograde step but as a positive and enabling process.
Senator Brazeau: One more question, if I may, to Chief Gottfriedson or perhaps Ms. Leonard.
You mentioned in your presentation that the federal government had held one short meeting over a period of a few weeks in your home province, which has approximately 200 bands. If you can correct me on this, it was my assumption that national Aboriginal organizations, including the Assembly of First Nations, received approximately $2.7 million to consult with First Nations communities across the country. If the federal government had just one meeting, did the Assembly of First Nations consult you at any point?
Mr. Gottfriedson: First, when we look at the consultation process in British Columbia — I am fairly active at the Assembly of First Nations. Going back to 2008, I passed a resolution in Quebec City at the AGA with our position clearly on the approach that we would like to see, with matrimonial property taking legs by consulting with us. With the resolution in Winnipeg last year, I again moved a resolution, clearly with our position towards an engaged process.
With the amount of engagement sessions, I do not know what the terms of the $2.7 million put forth was.
As far as our consultation is concerned, there was one meeting in British Columbia, and we feel that is inadequate considering the population within our nations. There are 10,000 Secwépemc within our nation. We are governed by certain protocols, customs and traditions as we look at advancing our issue.
To put it bluntly, no, we do not feel we were adequately consulted, whether by the AFN or the government.
Ms. Leonard: To add to that, if we look at the principles of Haida in terms of meaningful consultation, that was definitely not done. Definitely no one came to speak to our people. That is what we are talking about, a non- paternalistic way to consult our people and to be consulted as equal partners, not being presented with positions saying, "These are your three options; do this, do that, choose this, choose that," but meaningful consultation that balances our interests.
Senator Nancy Ruth: First, if I may, I would like to ask Ms. Turpel-Lafond a question. You said that in clause 20 there needs to be a definition of family violence. Could you tell us what you would have in this act as a definition of family violence?
Ms. Turpel-Lafond: I filed a document with you. First, the current definition is helpful. The problem is that the definition applies to section 16, then there is a reference to family violence in clause 20 without a definition and the clause 16 definition specifically says within the section. I myself have a background as a judge, lawyer and a law professor, and when I read this, I think, what if there was an application before me under clause 20; would I know what to do when there is no definition?
I think it is a minor issue in that if it is not addressed before it becomes law, it will have to be interpreted later, but let us be clear. I would suggest that you place a definition for family violence in the definitions section of Bill S-2 that applies to the entire act. That will clarify it, or else track the same definition in section 20. There is an issue. There may be good reason the drafters have done so. I cannot easily see what those are just by looking at it. It may just be an error at this point that could easily be corrected.
The two small issues I brought forward on family violence are that I think it is extremely important when we define family violence that we ensure we identify children being exposed to violence as part of the definition. That is something that, as I said, we recently passed. We received Royal Assent just last week on the new Family Law Act in British Columbia, which was the subject of a lot of work for many years on how to best define it. I filed that definition with you so you can see it.
The other component of the definition that was just a minor issue is whether or not some controlling behaviours, such as controlling money, are also part of that definition. I think the definition here is generally very good, with some minor adjustments to it. However, the key is to be clear that for both for clause 16 and clause 20 you have the same definition so you do not get into some odd situation where someone has just been through a protective order, goes for an occupation order and cannot get it based on the same facts.
Senator Nancy Ruth: You also said that — I cannot remember the words used in the bill — in the implementation section, when bands have an opportunity to develop their own —
The Chair: Before you go on, Senator Nancy Ruth, may I have permission to ask a supplementary on your earlier question?
Senator Nancy Ruth: Yes, of course.
The Chair: Thank you. Ms. Turpel-Lafond, on the interpretation of the definition of family violence, did I understand you correctly that we should move the definition of family violence to the interpretation section right at the beginning of the bill?
In addition, in the definition you would add a subsection (g), which would include a child's direct or indirect exposure to family violence. Is that correct?
Ms. Turpel-Lafond: Yes. I think that would solve the issue, having a single definition that applied to all of the provisions and to say in the case of the child, direct or indirect exposure to family violence applies. Family violence must have a much stronger lens on the impact to the child. With what we are seeing in our work, particularly for First Nations children, they are resilient and have many strengths and supports in our communities; however, they are exposed to more intimate partner violence, and this is harmful. It affects their development. We need the adults and systems in their life to pay attention to ensure that they get meaningful responses.
Therefore, putting children in the definition is a way to ensure everyone sees it. I hope as First Nations develop their laws, or at least formalize their laws and notify others — because I believe many of their laws already exist — that they will bring forward that perspective of how it is inappropriate for the adults in the family to be violent towards each other in the presence of children. It is a significant issue. We know it is a criminal offence and we know the dynamics there. For property disputes, because the property, the home, sometimes provides safety, it is significant that the children be represented, in my view, because it reflects our obligations under the UN Convention on the Rights of the Child, as First Nations children have a right to be safe.
Senator Nolin: Ms. Turpel-Lafond, I am reading clause 22. Do you not think that the judge who will hear the case under clause 22 will have all the latitude to find such family violence, instead of putting a strict definition in the act? Reading clause 22, it is quite large. There is no need for a charge to be laid or dismissed or withdrawn. It is quite large; do you not agree?
Ms. Turpel-Lafond: It is just my view, and so I would respectfully say "no" to you. Clause 16 says that for the purposes of this section it is defined. However, in clause 20, when we get into the exclusive occupation orders, it references any family violence. As we get through it, you can say they can take a generous interpretation.
I am saying that these may be emergency-type situations, where you do not want an applicant to a court to have to bear the cost of a judge interpreting something broadly and then being challenged. There could be an aggressive partner here that challenges, and then it ends up costing a lot of money on interpretation of an issue that, if it can be remedied easier at the bill stage, I suggest you do it. I am not suggesting a judge may not do it, but it is not a clear path here, especially the way it is defined for one section.
It says "in this section," then it mentions family violence elsewhere without that definition. If it is possible to remedy it, I encourage you to do it. If the drafters can assure you that it is abundantly clear, fine — I am just providing one opinion — but I think it may give rise to confusion in the context of important issues around preserving and protecting the rights of vulnerable people.
Senator Nancy Ruth: You also talked about, in the implementation section, that there be a research component. Can you give us more ideas on what you want and how long you think this should go on? Who else is doing the research, and does it need to be done in conjunction with Bill S-2?
Ms. Turpel-Lafond: In some ways there are aspirational aspects to this bill. Some of it is just filling a safety gap, but you are doing a variety of things.
One of the issues for me is whether this is an effective and responsive legislative regime to deal with victims of violence, including children. In order to assess that, we need to know how many orders are being given in each province and territory, how many First Nations laws come into effect, whether they are timely and are the access to justice requirements there.
The ongoing research around safety and accessibility of our systems is important. The research issue on how to coordinate systems, when First Nations pass their family laws or notify governments of their family laws under this new statute, if it is proclaimed, we will need some research to see how the practice is happening. Is one province ahead of others? Is there a preferred way? The research component is important.
We always need to keep track of, for instance, children exposed to violence. How many cases in the child welfare system do we have, how many in the criminal justice system? Are First Nations children being heard? Do they have their views taken into account? Are they safe? Ongoing research and collaboration is very important. I think that component is commendable, should be supported and broad-based, involving anyone who is looking at good, strong research.
Senator Nancy Ruth: I wanted to ask the chief and Ms. Leonard a question, first about the consultation budget. I am looking at an MRP line here, which has over $8,650,000 given for consultation to various groups, of which $2.9 million went to NWAC; the Assembly of First Nations got the same amount; the Congress of Aboriginal Peoples got $100,000; the Indigenous Bar Association got $50,000; friendship centres, $100,000; National Aboriginal Circle Against Family Violence, $100,000; aid to band council, $25,000; Advisory Council of Treaty 6 Women, $75,000; and so on and so forth.
Did none of these groups come to B.C. and talk to you?
Ms. Leonard: When INAC and AFN co-hosted regional sessions, there was one regional session in 2006, in Richmond, that was supposed to introduce the idea, noting that there is complete confusion with First Nations people over what matrimonial real property even means. It is a foreign concept to our people.
There were issues being raised, as I understand it, but there was not enough time to properly introduce an idea, have dialogue, feedback, and the expectation that all of that could happen and somehow allow First Nations people to consult with their own people on the issue within a session was preposterous.
Senator Nancy Ruth: Was there no follow-up process allowing you to go back and talk with your elders and people and feed information back into the consultation process?
Ms. Leonard: I cannot speak for other First Nations governments. I know that our band has been in consultation with the AFN for a number of years about our concern with the bill, on a number of different issues, and we have been platforming that with the AFN.
Senator Nancy Ruth: If you have been involved with the AFN for a number of years about the bill, then coming to this meeting in Richmond was not the first time it had ever come to your attention or concern; it had been an issue you were dealing with with the AFN for some time. Is that correct? Is that what you just said?
Ms. Leonard: After. This is a reactive thing, because this is being introduced and given to us as saying this is going to happen. There were several changes. The name of the bill itself keeps changing; some issues in the bill keep changing; and there is no collaboration or consultation and time allowed for us to take that in a meaningful way.
Even in this last bill, since it has been introduced in the current form, for us to talk to our people and develop timely responses in terms of proper consultation on the new bill is not practical.
Senator Nancy Ruth: There is no question that there is a shortage of safe houses and all kinds of issues: access to legal aid, geographical distances, and so on and so forth. On the issue of family violence on-reserve, what is your reserve doing to reduce family violence within families and amongst parents and children, that being part of what this is about, that being the real life lived of this part of the law?
Mr. Gottfriedson: Thank you for the question, senator. One of the things that our community has been really active in creating is a wellness plan for our community. When you look at our ambitions to create a wellness plan that looks at rebuilding our families, when you look at the Indian residential schools, the Sixties Scoop, the whole historical background surrounding our families that have been challenging, being removed and going to residential schools and day schools as well, they have a lot of learned behaviour through the Indian residential schools that basically impacts the wellness of our community. That is why we have launched our class-action suit for redress for our day scholars. We are trying to look at rebuilding our families to our customs, our values and creating certainty for our community to grow.
When we look at some of the challenges that we face, even working with, as an example, the Ministry of Child and Family Development, and providing a cultural way for our children who are removed to be placed with our own agency, or placed in our urban agency, we try to teach them the values and customs of our people.
In our community, we have high unemployment as well. We are no different than other First Nations where unemployment is an issue. When you look at it all across Canada, the poverty issues around First Nations are rampant. When you look at the issue of wellness, how do you really create certainty when you have so much poverty and so much disparity amongst First Nations? Bill S-2 is legislation that basically has a division of assets where the value of our land is not even worth the same value as if it were in a municipality or in a provincial setting. Basically, when you look at the division of assets and try to create the issue around wellness, what is the term "wellness" or "family violence" in our territory? We do a lot of work in our community to ensure that our families come first and foremost. However, we do not have enough capital dollars to provide safe houses as an emergency measure to be able to really look after our people. As advanced a band as we are, we are still challenged with having the resources to be able to provide certain institutional infrastructure for our families as well.
The long and the short of it is that we need more capital to be able to look at providing better wellness. We do a fairly good job, but is that good enough? I do not think so.
Ms. Leonard: We also provide funding to families for mental health. We have programs that we support for families to go to.
Senator Nancy Ruth: On reserve?
Ms. Leonard: On and off reserve. We support families with healthy recreation. We give healthy recreation options for children and adults. We are looking into developing and enhancing our existing restorative justice models. There are a number of things that we do directly to invest in the wellness of our members. Our motto within our community is: With team work we create action and pride. We take that seriously within our community as well as with our external stakeholders.
Senator Ataullahjan: My question is for the chief. Some First Nations have developed their own matrimonial real property laws, but the majority of people living on reserves are without legal protection. Do you not feel that Bill S-2 provides some rights and protections to those individuals who are living on reserves?
Mr. Gottfriedson: It may provide that certainty. When you look at our own ability to enact our own jurisdiction and our own law-making ability, accustomed to our traditions and practices of 10,000 years ago, one of the things we would like to be able to do is to look at the ability to invoke our own customs and practices.
Ms. Leonard: We need to find a way to harmonize the interests because we do not want to take away our children, our women — it could be men; we are talking about equality. It could be a man or a woman. We need to ensure that we protect their rights to their culture as well. That is the whole relationship behind the Haida case, the principles that, somehow, we find a way to work together so that we do not infringe upon our cultural values. It is supported by the Declaration on the Rights of Indigenous Peoples. That is what we are asking for.
Senator Wallace: Chief and Ms. Leonard, I understand that you have a problem with the process of consultation that was followed with First Nations people. I guess some are satisfied, but I guess you are not. In particular, I heard the comments from Ms. Turpel-Lafond and her general satisfaction with Bill S-2, which seems to be quite opposed to your conclusions.
Beyond process, all of this ultimately comes down to the rights, protection and privileges of spouses and children. As I understand it, Bill S-2 would enable First Nations to enact your own specific community matrimonial real property laws. Bill S-2 is clear that title to reserve lands would not be affected by the act. It goes on to say that reserve lands would continue to be set apart for the use and benefit of the First Nations for which they were set apart.
When I think of that and reflect back on Ms. Turpel-Lafond's comments, it strikes me that this feels like it is a step in the right direction. Is it the end of the journey? No, but it would seem to me that the individual right, the protection of rights and privileges of those that the bill is directed towards, definitely seems to feel like an improvement over what exists today. Yet it would still leave First Nations the opportunity to take it the next step further in the future.
Would you not agree with that? Is there something specific you would say in reply to the specific points that Ms. Turpel-Lafond has made in relation to the bill?
Mr. Gottfriedson: When we look at the creation of our First Nations law and our own jurisdiction, I think that is our ultimate goal. That is why we are here today, namely, to present to senators. When you look at the uncertainty surrounding the Indian Act, how it is imposed on us and the restrictions that we have around our governing, our rights and titles and those interests, I think we are always looking at ways of improving our own citizens' well-being. We just want to make sure that our legal interests are looked after from both a traditional and a customary process. That is why we offered the tobacco, because we did come here in a good way.
We have looked at our history of inhabiting our land since time immemorial. It always seems that the things that make the most common sense and the things that are most practical are never an advance forward in our best interests. Based on my experience, you never really want to see families break down. I think that is the last sort of thing that we look at as a community. I do not think anyone looks forward to that day where the divorce papers are filed and the division of assets happens. We also understand that is a reality.
I think one of the things that we should be focusing on is diverting the issues around the health and well-being of our communities and providing the adequate financial resources to be able to look at creating wellness in our community. That is one of the challenges that, hopefully, I would like to present to senators today, namely, to look at some of the issues around poverty amongst First Nations. The fact is that many of our people and many of our families live in poverty. A lot of resources are being taken from our communities and from our traditional territories. That is a real issue for our people.
I challenge senators here today: Let us work together on raising the poverty issue and help us to break down those barriers.
Senator Wallace: Chief, you refer to improvement in health and well-being and the enhancement of the rights of First Nations people. Would you not agree that health and well-being and the enhancement of rights would be improved by Bill S-2 over what exists today? At the individual personal level, would it not improve what exists today?
Mr. Gottfriedson: I am not going to get into a debate as to whether it will improve things. Right now, we face the possibility that it could improve things. Maybe Bill S-2 could provide some certainty around areas of uncertainty.
Ms. Leonard: It also creates additional problems where the expectation of rights and privileges granted under the bill are in excess of what we have as a First Nations people. When a division of assets and a valuation is placed on a home or property and compensation orders are done in direct contrast to the rights that we have, people will be granted privilege under the bill that we do not even have ourselves. As a First Nations person living on-reserve, I do not get to appreciate the equity in my home or my land, yet we are going to assume and give those protection orders to other people, which we do not have. The valuation of that house, the market and the economies of scale are completely different. In the process, it will erode our culture and our relationship to the land.
This is a lengthy conversation. We have an abundance of information and discussion that we could take at length but in respect of your time, so many complexities in this bill produce more problems. If our interest is in the immediate safety of people, it cannot be done in a courtroom; it is done in a safe house.
Mr. Brazeau: You talk about self government and First Nations' jurisdiction over these matters, which I will not debate either. It sounds good and pulls at the heart strings of many First Nations people. However, what about pulling at the heart strings of First Nations women who are affected by the lack of any matrimonial real property legislation? Negative consequences happen when a marriage breaks down, in particular for women and children. I know from my experience that many First Nations women, because of this legislative gap, end up in urban areas when they have nowhere to go.
I will follow Senator Wallace's line of questioning. Is this an improvement from the status quo? Currently, we have the Indian Act and a lack of MRP legislation. You can create the best matrimonial real property legislation that you want but the minister cannot recognize it and it cannot be implemented because of the Indian Act. This proposed legislation, however imperfect, at least fills a void for the protection of Aboriginal rights. This bill has nothing to do with any land title but has to do with the rights of Aboriginal people. Would you care to comment on that, please?
Ms. Leonard: When you talk about your concern for displacing people, I agree with you. If you give occupancy to one person, someone else will be displaced. There are housing shortages on our reserves and we do not have safe houses; so you will be displacing someone even this with this bill. It does not solve the problem of displacement. They will be forced from their homeland, if you will. They have nowhere to go. Some areas are so remote, where will those people go? Then, we will put them through a lengthy court process that will erode their culture even more in a process that does not respect their culture or is not based on common law principles of their own culture. It will set a precedent of eroding our jurisdictional and human rights. All of our human rights need to be balanced. With all due respect to the good intentions, more work needs to be done in a meaningful way that balances all of our interests and human rights.
Mr. Brazeau: With all due respect, the question was whether this proposed legislation is better than the status quo. Having said that, with the example that you just gave, anybody with any sort of domestic violence issue, where the rights and safety of Aboriginal women and children are at stake, the protection of the rights of Aboriginal women and children is more important than displacing an abuser.
Ms. Leonard: With all due respect, sir, if we had safe houses, the number of missing and murdered women would not be as high as it is.
Mr. Gottfriedson: If we are going to enact this proposed legislation, then give us the capital resources to be able to build our capacity in our community and build houses, because we have such housing shortages. Help us with our infrastructure in our community. Many First Nations communities across Canada lack infrastructure. This bill will bring challenges because not every First Nations lives next to an urban setting. We have rural and remote issues and urban settings as well.
The real challenge is how to support this bill when the closest municipality for some communities is over 200 kilometres away. Where we are situated, a river divides our territory from the city of Kamloops. We need to look at the capacity issue if we are talking about enacting legislation that will benefit our people. We really need some capacity and capital to address the legislation in a meaningful way. Whether it is displacing the husband or the wife from the property through the matrimonial process, it will be a challenge for us, senator; but thank you for your question.
The Chair: Thank you Mr. Gottfriedson, Ms. Leonard and Ms. Turpel-Lafond for your very thought-provoking presentations. We appreciate your making time for us.
Mr. Gottfriedson: May I comment? We have some gifts that were made by some members of our community. First, we want to acknowledge the senators for allowing us time to present here today. This is the first time I have been to this Senate committee to present. I just want to say that we very much appreciate your time to hear some of our concerns.
We are young leaders in our community. We are another generation coming up. We are looking at our rights-based interests for our community. We probably never answered your questions from a technical or a legal point of view, but you know we come here in a good way. We come here with an open heart, an open mind and the weight of our community on our back; we just want to say that. I am not quite as experienced as the senators for the Q and A. However, I know that when we go home we have to deal with the issues within our community that are very near and dear to our hearts. These issues could be affecting our brothers, sisters, aunts, uncles, nieces or nephews. First Nations issues are driven by the core values of our families. We want to do what is right for our people. We have a lot of work to do to keep up with both the federal and provincial governments on ongoing issues.
First Nations are challenged in many different ways on many different issues in relation to capacity building. Normally the chief comes here with his briefcase and the weight of the world on his back looking out for the interests of the people. I am fortunate today to have one of our council members and our two legal staff with me.
I want to acknowledge Senator Jaffer and the rest of the senators for hearing us. If you have any further questions, we would be happy to correspond through email. On behalf of our people, the Kamloops, the Secwépemc and the Shuswap Nations, thank you for having us here today.
The Chair: Thank you for your remarks, Chief Gottfriedson. You are very humble. It is we who are the receivers of your great wisdom and it is we who have benefited from being here. We are aware of the good work you do in Kamloops. Thank you very much for coming all the way to Ottawa to educate us today.
I am now pleased to welcome, from the University of Saskatchewan, Mary Eberts, who is no stranger to Senate hearings, and Joseph Quesnel, a policy analyst with the Aboriginal Frontiers Project at the Frontier Centre for Public Policy.
Mary Eberts, Arial F. Sallows Chair in Human Rights, College of Law, University of Saskatchewan: Thank you for the invitation to appear here. I have been following this issue of matrimonial property on-reserve since before the passage of the First Nations Land Management Act, which is a while ago. I have had the honour of being counsel to the Native Women's Association of Canada in litigation, which I hope we can say kick-started the policy process on this issue that brings us here today.
I do not appear in my capacity as counsel for the Native Women's Association. I understand that they will be appearing later this afternoon. However, I can say that the experience of working with them has given me a deeper understanding of this issue and many others, for which I am very grateful.
The Supreme Court of Canada decided in 1989 that provincial laws respecting matrimonial real property did not apply on-reserve. In spite of the fact that this led to a decades-long gap in Canada's rule of law, I believe that that was a sensible decision because all of the provincial laws about matrimonial real property are based on a system in which people can hold fee simple title, and the disposition of these interests is what is at stake. The nature of landholding on- reserve is different from that, so I am pleased that the Government of Canada has been responsive to the gap in the rule of law in a way that recognizes the distinct nature of property on-reserve. It would have been a disaster if Canada had simply passed a law saying that provincial law applies. Canada has taken a different path. Although it has been a long and difficult one, I think that it is preferable to simply adopting provincial law.
In addition to having a long relationship with the Native Women's Association and involvement in this issue, including taking part in the work of the special representative, Chief Wendy Grant-John, I have also had a long- standing interest in indigenous law-making generally. I am now doing my doctorate at the University of Toronto in that area. As part of my chair at the University of Saskatchewan I am hosting a conference in March of 2012 on indigenous law-making, in conjunction with the Native Law Centre of Canada at the University of Saskatchewan. We are calling the conference "Our Way," which signifies that indigenous law-making is something that was done prior to the arrival of settlers and prior to the construction of the Canadian state. Indigenous law-making is an activity, a tradition and a ceremony that should be given space to exist within the structures of the Canadian state.
I have several initial observations about this legislation. As I said, I am glad Canada is responsive to the distinct nature of property on-reserve. I believe it is important that this legislation include some provision for the reception of indigenous traditions and perspectives in the adjudication process that is done in clause 41. It follows a small but promising recent practice in Canadian law-making, of which the Canadian Human Rights Act is a good example, of making space within the structure of the Canadian legal system for the reception of information about the legal traditions and practices of First Peoples. This provision would also allow those legal traditions and practices to at least have an influence on the decision making of the Canadian courts.
I will say more about that later. My own view is that such participation in Canadian structures is not enough, but it is at least a start and it may somehow mediate the rigours of the application of Canadian law to First Peoples. We know from experience that that process has certainly been a difficult one for First Peoples and has caused a lot of harm.
I am pleased as well that this legislation contains a provision for First Nations to draft their own property codes.
If I have a problem with the legislation, it is that the power of First Nations to enact laws dealing with property on- reserve is said to come from the legislative activity of the Parliament of Canada. However, throughout the processes that led up to the report of Chief Grant-John and throughout discussions on earlier versions of this legislation, the point was made again and again that First Nation jurisdiction to pass laws is inherent jurisdiction that predates the Canadian state. In my view, and in the view of many other scholars, it has survived the presence of settlers and their states on this land.
In clause 7, it is a defeat for the power of First Nations to appear as being conferred on those First Nations, whereas a more appropriate method would be for the Parliament of Canada to recognize that First Nations have law-making power in this area. That distinction, between conferring power and recognizing power, makes all the difference in the world. It is my hope that in this country we will see a system in which First Nations' law-making power, inherent to them and predating settlement and even Confederation, will one day be recognized.
I have a few comments about the contextual facts surrounding this legislation. One of them is that this legislation deals with problems on the ground that in some measure arise from older versions of the Indian Act. One in particular that I mention is the proviso, before 1985, that when a woman married a member of a particular band she lost her own band membership, her natal band, the band she was born into, and she was transferred over into her husband's band. Sometimes that was a geographical distance as well as a cultural and a legal distance.
We have seen cases like that of a woman from the province of Saskatchewan. The woman was transferred in this fashion to the band of her husband, became widowed, and was without family, friends or the ability to go back to her own band and therefore really at the mercy of the system. In those circumstances, she had to go to court to secure a place for herself and her grandchild to live.
Other consequences that I hope the senators and the government will bear in mind are those of colonialism generally and the poverty that has been visited upon First Peoples in this country. There were references by the previous speaker to the shortage of housing stock on reserves. Many of these issues arise because of the economic situation of First Nations and the history of colonialism.
If there were adequate and healthy housing stock on reserves, with no mould, with adequate sewage and water, warmth, and enough room, then the problem of dispossession would not arise nearly so often.
One of the reasons that people — women, mostly — wind up leaving the reserve and going to a far distant city, often with their children, is that there are not any alternative houses on the reserve. If they have families on-reserve, those families may be living in houses that already have 14 people living in a one- or two-bedroom house.
There is a crying need for adequate, safe and healthy housing stock on-reserve, as a way of dealing with the basic problem addressed by this legislation in a legal way. That would go some way to alleviating the displacement of people, upon relationship breakdown, that we are talking about.
It is also important to recognize, as a major contextual factor behind the need for this legislation and also, I hope, informing its administration, the need for measures to curtail violence against indigenous women, in particular. The violence against indigenous women is an epidemic in this country. It is domestic violence as well as stranger or third- party violence. Unfortunately, this legislation does nothing to address the causes of violence or the conditions that contribute to it, whether they are economic, social or spiritual. There is an urgent need not only for an improvement in the supply of housing on reserves, but also for measures to address the issue of violence.
Another important contextual element is the crying need for better provisions to ensure the flourishing and security of First Nations children. Children are often the ones who are sent bouncing from pillar to post when their parents break up. At this point, there are inadequate resources for First Nations children's services to ensure that all First Nations children are looked after.
In all of the meetings that I went to — through Chief Grant-John's process, the Native Women's Association and other community organizations — one of the goals is the need for this legislation and this government to put a priority on the security and flourishing of children. A number of people support various parts of this legislation, to the extent that they can be seen to be providing security and a chance to flourish for First Nations children, including the ability to live on the First Nation with your parent.
I will touch briefly on the two issues I want to mention specifically and turn the floor over to my colleague, Mr. Quesnel.
As I mentioned, in clause 7 there is a provision saying a First Nation has the power to enact First Nations laws that apply during a conjugal relationship and so on. The legislation goes on to say the laws must include some elements. Frankly, that is somewhat contradictory to the recognition of the power of First Nations to make laws, to then turn around and tell First Nations what they must include. Second, in clause 8 the legislation includes the requirement for community approval.
I doubt anyone here in the Senate of Canada or in the Parliament of Canada would think well of a First Nation that said, "We recognize your power, but now we are going to tell you what you have to legislate and we are going to tell you how you have to legislate it."
When you look at the whole clause, what purports to be conferral of power on First Nations to pass property laws is really nothing more than creating of a First Nation, like the Indian Act, a tiny civil polity that is like a town council. As long as Canada continues to treat First Nations as if they were governing bodies like town councils, my prediction is we will not make the progress that is required in this country.
With respect to clause 41, I welcome the requirement for any applicant for an order to send a copy of the application to the council of any First Nation on whose reserve the structures and lands in question are situated, and the requirement that the court should allow the council to make representations, with respect to the cultural, social, and legal context that pertains to the application, and to present its views about shelter, about whether or not the order should be made. That is a very small beginning on what I hope will soon be a common practice in Canadian legislation to make room for indigenous law-making and the recognition of indigenous law making, rather than simply purporting to confer power on First Nations, which they already have.
Joseph Quesnel, Policy Analyst, Aboriginal Frontiers Project, Frontier Centre for Public Policy: Good afternoon, ladies and gentlemen. Thank you for the invitation to appear before this committee and speak to you. My name is Joseph Quesnel and I am a full-time policy analyst of Metis background with the Frontier Centre for Public Policy. The Frontier Centre is an independent Western Canada-based public policy think tank with offices in Winnipeg, Regina and Calgary. We received charitable status as a registered educational organization in 1999.
I work in Aboriginal policy, called our Aboriginal Frontiers Project, which seeks to minimize state dependency and empower First Nation and Aboriginal individuals while respecting Aboriginal constitutional and treaty rights. This is actually our largest project area.
Within that section, our main emphasis is on improving First Nation governance. Our flagship project is the Aboriginal Governance Index, which is an annual measurement of governance and services on First Nations across the Prairie provinces. This is our fifth year of the survey. Through this project I have personally travelled to over 20 First Nation communities. My colleagues and I have met with hundreds of First Nation citizens, leaders and also people affected by some of the problems addressed by this bill.
Thank you for the opportunity to address Bill S-2. It is both an issue of fundamental justice to us and First Nations and one that speaks to the need to empower individuals on First Nation reserves. In our research, we have come across too many examples of arbitrary actions by First Nation governments — sadly against their own citizens — and believe that like any government, safeguards need to be in place to protect citizens. It is not a First Nation issue; it is not a cultural issue, but an issue of government. Gordon Gibson characterized the problem as small governments with large powers on First Nations. There have to be checks in that respect.
Reserve residency is not an absolute right in the sense that whether or not you are a status Indian or member of the band, it does not guarantee you the right to remain on the reserve. There are issues regarding security of tenure for all First Nations. The authority rests with the band council under section 81, which sometimes can be an invitation to problems. I am proud to stand here in support of this bill in its current form and urge passage, but with notes I will get into.
After much research into the area, I compiled a column on the issue of matrimonial property rights under the predecessor Bill S-4, which appeared in the National Post and generated much media attention. I published a 15-page policy paper, which I believe you received, which also generated a lot of interest. In a nutshell, when this bill was introduced in its predecessor form, I implored politicians to place the lives of indigenous women above politics. Aboriginal leaders themselves have always stressed the value of gender equality, including consenting in 1983 to the inclusion of a clause to section 35 that specifies that Aboriginal and treaty rights be interpreted in a manner consistent with gender equality. It is not a surprise. It is one of the fundamental rights included. All four of the Aboriginal organizations in 1983 agreed to that inclusion.
So often, legislation of benefit to First Nations becomes consumed by jurisdictional squabbles and political grandstanding, and action never gets taken. A good example was the First Nations governance act in 2003, which would have improved financial oversight and electoral laws on First Nations. Interestingly enough, independent polls taken around the time confirmed the majority of grassroots supported that initiative. I feel the same thing could and did happen with matrimonial property rights, in the sense that leaderships are out of tune with what grassroots members are saying and how they are feeling.
I have closely monitored the response of First Nation organizations to this legislation — not just this bill but the predecessor bills — and am frankly disappointed. Even groups like the Native Women's Association of Canada, which originally called on Canada to fill this legislative gap, joined the chorus of groups like the AFN and Aboriginal organizations that seemed destined to obstruct and delay the bill. Meanwhile, vulnerable individuals — primarily women on reserves — are left without much hope.
I share the concern of some of these organizations. Do not get me wrong: The housing crisis on many First Nations mentioned before, lack of shelters, concerns about access to provincial courts for many isolated First Nations all need to be resolved. However, they cannot all be resolved in one piece of legislation. I implore you not to allow the perfect to become the enemy of the good in this legislation.
In its current form, the bill does address the main concerns First Nation governments and organizations have expressed in the past, one being the recognition of First Nation jurisdiction. In respect to my colleague, I find the idea of whether you are conferring, recognizing or whatever term you use to be a matter of semantics. If the power is there, then that is the power. A helpful transitional period for First Nations governments before the bill comes into force was also something granted through this bill.
In my view, it is a good compromise between the important values of Aboriginal self-government and fundamental justice. The two are not mutually exclusive.
Some of our exploratory research confirms support for equal matrimonial property rights on reserves, at least on Prairie First Nations. I can say the three provinces. In late 2009 and early 2010, we added three questions to our annual Aboriginal Governance Index as a way to gauge opinions on women's rights on reserves, as well as to assess people's perception of what is available and the conditions of reserves when it comes to women's rights.
Our survey was completed by face-to-face professional interviews on 78 First Nations across the three Prairie provinces. Our first question was, if a couple on a reserve separate or divorce, should each spouse have a right to half the money and possessions they own? Out of a total of 1,091 respondents, 77 per cent said either "definitely" or "perhaps"; fewer than 5 per cent said "never."
Within that sample, 585 of the respondents were female, as opposed to 506 who were male. Our highest age and gender groups were women between the ages of 22 and 29, and 30 and 39. Obviously, these are people who would be affected by this issue.
The matter is most distressing when there is violence, making women in particular even more vulnerable. Asked if band governments are doing all they can to deal with violence against women, 42 per cent said either "not really" or "never." A little more than 26 per cent said "perhaps" and only 21 per cent said "definitely." While most think something is being done, which is obviously a good thing, a disturbingly large minority do not.
An encouraging sign was when we asked, is the band government doing all it can to help women become involved in community decision making, to which 51 per cent responded "definitely" or "perhaps." However, 34 per cent said "not really" or "never."
This is a limited sample that is voluntary. We go into a First Nation and request permission to do the survey with the leadership. Therefore, not all First Nations participate, but we would like to have that. It is still a limited sample on the Prairies, showing us that First Nations in general, from what we can gather, are on the side of fundamental justice for First Nation women.
I am also confident support for equal rights is not limited to the Prairies. However, the sample speaks to ongoing problems with community violence and also issues surrounding female inclusion in civic life. Thus, this legislation has support and is needed immediately.
The last two results I mentioned also show that it is questionable whether in the absence of this legislation, First Nations would adopt their own matrimonial property rules — even afterwards. We can see that under the First Nations Land Management Act, which requires matrimonial property rules, only 14 of 30 First Nations under the act have operating matrimonial property rules. That is from the Department of Indian Affairs in January of this year.
The other concerns I have are the removal of the verification office, which was in the predecessor bill and has now been removed in this one. I realize that the concern is about paternalistic language and I understand that, but the concern I have is the uniformity of the rules. Not all matrimonial property rules have to look exactly the same, but they have to achieve the same objectives. If you have a patchwork of laws — some minimal, some with strong protections — you are creating that kind of standard of varying levels of protection for women. I do not think that would be acceptable.
In closing, I emphasize that I am not a lawyer. I cannot speak to the finer legal points of the bill, so be kind to me. However, I would now welcome any of your questions.
The Chair: Thank you very much, Mr. Quesnel. I will start off the questioning.
Ms. Eberts, we know you are very familiar with the challenges faced by Aboriginal women. This bill talks about women being able to go to court for emergency orders of exclusive jurisdiction. One of the concerns that some of the committee members have had is access to justice for these women.
Can you please elaborate as to what challenges the women will face?
Ms. Eberts: I begin my answer by pointing out that in all of the provinces and territories of Canada, whether or not you are living on an Indian reserve, there are substantial problems for all women getting access to justice in family law situations. There have been radical scale backs in legal aid and the provision of legal aid for family law matters. There are increasing numbers of self-represented people appearing in family courts on their own.
That kind of problem is multiplied many fold when one considers the position of women living on-reserve. They do not have legal aid for family law, and their access is further limited because near many of the remote reserves, there are not any lawyers. Even when criminal courts go into the remote reserves, they fly in and everyone comes on the same plane as the judge.
Where are these people going to get lawyers? Even if they live near a town where there may be practising lawyers, how will everyone get a lawyer — the wife, the husband, whatever? In many of these communities, even if the money was there, it would be difficult to muster enough nearby lawyers who are skilled in family law to take the issues.
I think that your concern about access to justice is a grave one. Even the provisions for telephone hearings, in some cases, are ones that present access to justice issues if you live somewhere where there is no telephone. We have to think in straightforward and basic terms when looking at that access to justice issue; it is a huge one.
Senator Brazeau: My first question is for Ms. Eberts. You just finished talking about the fact that Aboriginal women have difficulty accessing the justice system, and I certainly agree with you that is a fact in many cases. However, if we focus on this piece of legislation fully, the fact is that Aboriginal women not only cannot have access to the justice system, they have no access to any recourse in the case of marriage breakdown. Would you at least agree that Bill S-2 will provide some safeguards, or at least the basic initial recourse that Aboriginal women deserve in this country?
Ms. Eberts: I think you heard me say at the beginning of my presentation that the enactment of Bill S-2 would fill a huge gap in the rule of law, which is an extraordinary feature in a modern democratic state like Canada. Since 1989, there has been no law at all about interests in matrimonial real property on-reserve. On any index, whether it is Mr. Quesnel's or some of the worldwide indices of the rule of law, that is pretty shocking. A lot of the efforts of many organizations have been dedicated to filling in that gap in the rule of law.
That being said, I think that the passage of this type of legislation is necessary if that gap in the rule of law is to be filled; but it is, unfortunately, not sufficient to fill it.
Senator Brazeau: I need a clarification. You also mentioned that the Government of Canada should be recognizing the jurisdiction of First Nations communities over these matters. Whether we use the term "recognizing" or "conferring" is a debate for another day. However, in the current state of affairs, would you agree that there is no conferral of any law- making powers on this subject matter, and neither is there any recognition? If this bill were to be passed, at least it would enable any First Nations community to develop their own matrimonial real property regime, which right now is non- existent except for those that fall under the First Nations Land Management Act. At least this bill would confer and give that opportunity for First Nations to develop their own codes or laws.
Ms. Eberts: Mention of the First Nations Land Management Act reminds me of the situation under that legislation, one in which there have been far more First Nations interested in participating in the development of land codes than have been able to participate. The waiting list or the backlog of nations for training and for developing their capacity has been large, and funding has not been adequate to deal with all of the nations who want to do those codes. It makes sense, I think, for there to be some participation in the development of First Nations' land management codes, generally speaking, if there is to be the passage of a First Nations' property code like the one contemplated in clause 7. That is because the First Nations' land management system opens the way to a Western-style, or settlers' style, set of land regulations. It is pretty hard to have a matrimonial property code if you do not have a coherent code dealing with all property.
One way for any government, both this government and its predecessors of whatever party, to have advanced the cause of matrimonial real property codes would have been to flow funding to the First Nations who wanted to get involved in the First Nations' land management system. That was not done; there was insufficient funding.
As for the development of settler-style land regulations and matrimonial real property codes, we are really looking to shortcomings under the First Nations Land Management Act that simply passing clause 7 of this legislation will not remedy. The remedy, on the ground, is getting those nations built up with the capacity to pass those regulations, including the property codes. A family property code, by itself, is only a small part of the job.
Senator Brazeau: My next question is for Mr. Quesnel. I am glad you mentioned the First Nations governance act, the process for which began in 2001. Even before then, there was discussion on the need to have matrimonial real property dealt with.
During those discussions, which I was a part of, from 2001 to 2003, there was a specific focus on MRP. Unfortunately, at that time, the chiefs decided to boycott the process. In my view, there would have been an opportunity to have more ample discussions on this to develop, perhaps, legislation that we could have had earlier. In any event, that is the preamble to my question.
You mentioned that you travelled throughout many First Nations communities in the Prairie provinces and that you collected some data based on polling that the Frontier Centre did.
Is there anything that you can share with us with respect, perhaps, to what you specifically heard from Aboriginal women who saw the need for this type of legislation to be developed and hopefully enacted in the near future?
Mr. Quesnel: We hear a lot of stories from some of the people we meet when we are conducting our governance index. When we are conducting our surveys, we are asking them specific questions, but, a lot of times, people just want to tell stories and share different experiences.
I am not thinking of a specific incident, but what we hear are people who are trapped in these situations. You really get the sense that a lot of the high-minded politics about the bill are not even being considered; they are not, obviously, in the front of their minds. They are thinking about their immediate situations, about how their band membership will be revoked and about how they will lose their homes and have to move off the reserve.
We are hearing more about those immediate, fundamental concerns. The semantics of a bill, what we call this or that, falls to the wayside, to be honest.
Senator Brazeau: I am very well aware that this will be entirely your opinion, but I have to ask the question. Why do you think we are not hearing more of these stories in the public domain? I have my own conclusions as to why, but I would like to hear from you.
Mr. Quesnel: About some of the people victimized in these situations?
Senator Brazeau: Yes. Why are we not hearing more of these stories in public forums or in the public domain? Certainly, in my experience, I know about a lot of what is happening. Unfortunately, many Aboriginal women, for example, do not come out in public for fear of any type of reprisal.
Mr. Quesnel: The situation that I was mentioning, with public policy expert Gordon Gibson, can be characterized as "small governments with large powers." When housing and social assistance and assistance for post-secondary education for their children are on the line, it tends to shut people up. Prior to working at the Frontier Centre, I worked as a reporter, for about three years, at The Drum/First Perspective, an Aboriginal newspaper based in Winnipeg. It was an eye-opener in the sense that a lot of anonymous faxes and brown manila envelopes arrived at the office, and people told me about a lot of these situations in which they felt they had no other recourse.
For example, when the salary disclosure issue exploded, many people went after the Canadian Taxpayers Federation for what had happened, without realizing that they are often doing that because there is no recourse for First Nations. If there is a situation or an issue, they often find they get punted between Indian Affairs and the RCMP, and there is no end in sight.
Another issue is the lack of developed media on First Nations reserves. Many communities have only a band newsletter, published by the chief and council. It will not be the most independent source of information, so those kinds of stories will not get out.
Also, look at the landscape in Canada. You have the major organizations: the Assembly of First Nations, the Assembly of Manitoba Chiefs and all of the regional organizations. There are not a lot of funded, vibrant organizations dedicated to grassroots First Nation people. The institutional nature of many of the large organizations is for them to serve their funders, who are the chiefs. Obviously there is a vested interest in not making the leaders look bad, so many of these issues do not see the light of day. Often, they will try to find a reporter in a mainstream newspaper, an organization like the Canadian Taxpayers Federation, or anyone else, anyone who is basically willing to listen, to tell their story. That is what I have found.
Senator Brazeau: Thank you for being so candid.
Senator Ataullahjan: Are you aware that any of the Aboriginal women's associations support Bill S-2 in its current form?
Mr. Quesnel: The AFN Women's Council and others are all saying they support this bill in principle, but they have issues with it. I am not aware of whether or not, right now, they are saying it should not go past committee. I am not aware.
Senator Nolin: Thank you both for your presentations. I am not a regular member of this committee; I may ask questions that are probably less interesting for you, but they are interesting for me.
I want to look into clauses 7 and 8. Ms. Eberts, I understand your concern.
Reading the preamble of the act, for me it would solve the problem, but I can appreciate your concern. At the end of the day, we all want rights and protection for women and children.
Clause 7 at least recognizes the power for First Nations to legislate, but how do you read clause 8? There will be the need for approval by the community. Is it new? Is it the way it should go, and why that way? You may both have an answer to that. I am curious.
Ms. Eberts: Let me begin with respect to the preamble. I imagine that you may be speaking of the part of the preamble that reads:
Whereas the Government of Canada has recognized the inherent right of self-government as an aboriginal right . . . .
Senator Nolin: It is to find a solution through negotiation.
Ms. Eberts: Section 35 does that. However, if you recognize something as an Aboriginal right, then it is recognized as a right. It does not just become a right once you have finished a negotiation and signed a document. Negotiation implements the right, but Canada is trying to speak out of both sides of its mouth here, saying we recognize the right but we are not going to act as if you have it until you have spent years and years and much money negotiating with us, and then you have the Aboriginal right to exactly what we have agreed to in the agreement.
It is not just the current government that does this. All the governments have done this, ever since Canada was required by the Supreme Court of Canada decision in Calder to start recognizing inherent rights.
I am not sure that I agree with you that that part of the preamble is any help here, especially because clause 7 of the legislation is not expressed in a way that recognizes the inherent right of self-government. It is worded in a way that looks as if the Parliament of Canada is giving this power, which is contradictory to what is in the preamble. As far as community approval is concerned, there is a community vote here, and I think that may stand in contrast to what Canada has done with respect to making membership codes, because First Nations have been able to make membership codes since 1985, and there is not a specific provision of community approval in the membership code provisions of the Indian Act. This is requiring more community approval than the membership code, and less outside approval than what Canada originally thought.
I do not think that requiring community approval cures the problems that I have identified with clause 7, because if Canada were recognizing the inherent right, they would be content that the First Nation had its own process for making laws and they would just follow that process and the laws would be recognized. What Canada is doing here is developing a substitute process that has nothing to do with the inherent right.
Senator Nolin: The void has existed since 1989.
Ms. Eberts: Yes.
Senator Nolin: We are now 22 years later and the void before Bill S-2 is still there. We all recognize that.
Ms. Eberts: Why were First Nations not doing their own law-making before? We do not know. Maybe they were. Maybe there were communities where the elders became involved in problem solving, in counselling and in reaching solutions for some of these property issues. We will not know that because people will not tell us. They especially will not tell settlers, lawyers and government. What we see are the situations where it has not worked to try a traditional method.
Senator Nolin: If what you are saying is the reality, and I have no way to challenge you, assume that Bill S-2 will pass and clauses 7 and 8 will be there. I presume that in such a community where such an act exists, it will warrant to reintroduce their own act and give it to the population to agree. Do you not think it will probably unfold that way?
Ms. Eberts: I do not know.
Senator Nolin: What Bill S-2 is giving us is the only way to find it.
Ms. Eberts: The First Nations Land Management Act was of course the very first way of doing this. As I said, there were many more First Nations interested in opting into that act than the government had money to allow to opt in. If the government is really interested in promoting the making of First Nations laws after the European or settler model, then I would suggest that a very good place to start would be to fund up the First Nations land management system and allow more nations to develop capacity and make laws.
Senator Nolin: Mr. Quesnel?
Mr. Quesnel: I have a comment about the First Nations Land Management Act. What I am aware of is that recently the First Nations Land Management Resource Centre signed an agreement to further fund First Nations entering into the First Nations land management regime. They are acting on that particular issue. They are trying to allow more First Nations.
On a small tangent, in the paper that I wrote, I argued that another way would be for more First Nations to enter into the First Nations Land Management Act, not just for the reasons that they require a matrimonial property regime but also that much of the research has shown that First Nations under that regime do better economically. Several years ago they did a study with KPMG, the accounting firm, that found that First Nations who are under the First Nations Land Management Act do better than those who are not. It is an added bonus with that.
About the community approval, the concern I have is the rules themselves that take it a step back. Are they enacting rules that actually deal with the issue? The First Nations and Aboriginal organizations have clearly stated that they favour gender equality. Are the rules set in place that there be codes that they are enacting here, and are they squaring with that? I would take that even before you look at the percentages and whatever threshold you are talking about.
The verification officer was that kind of role, but that was taken out. A different way to express that that perhaps people would not find as paternalistic, if we are talking about equality, you are giving us something else at the band level that is not acceptable and not what the First Nations women would want.
In terms of whatever threshold you are talking about, 25 per cent of the eligible voters, if you look at custom elections, you are still subject to natural justice in the sense that you still have to have some kind of democratic legitimacy to what you are doing. What often happens with many of the band custom elections that we have seen is that there are factions within the community that are using, unfortunately, indigenous culture as a cover for something that is going on. If you do not have a process where you have some kind of democratic threshold, then whatever process you sign off on, Aboriginal Affairs cannot do anything; they cannot intervene, if someone is being oppressed on the ground, because you have signed off. It might not be an authentic indigenous tradition in the community; it might be a faction. You would have to have someone on the ground who would understand the issues. At a minimum, you should have some kind of democratic legitimacy to what you are doing so that you can say you are speaking for a good portion of the population.
The Chair: We have been going for almost an hour and have run over our time. I will go to Senator Nancy Ruth, Senator Wallace and Senator Hubley. May I please suggest that you pose short questions and that the answers also be short?
Senator Nancy Ruth: Ms. Eberts, I wanted to ask you to help me with this recognizing power, conferring power in clause 7. Like Senator Nolin, I think this bill might pass. However, if it were amended at clause 7(2), "the laws must include procedures." If it said "may include procedures," would that be abuse? I guess that would be one way to put it.
I also wanted your comments on clause 3, the necessity the act requires to notify the Attorney General that the MRP has happened. Also in community approval in clause 8 it also uses the word "must." If it was changed throughout its various clauses, and I am sure other places in the bill, would this be of service?
Ms. Eberts: I do not think it would address the basic problem that this clause or this part of the legislation does not recognize power but purports to confer it. Once you have crossed that bridge of purporting to confer power rather than recognizing it, I would suggest that you and your advisers should draft the legislation in the way that best accomplishes your purposes.
I think that the requirement of notification of the Attorney General of any particular province is neither here nor there.
One of the things I would draw your attention to is that there is already a species of informal power that exists under the Indian Act that is not captured by clause 7 here. Bands have the option of putting their land management under custom systems, and they are not in the Indian Act land registry system.
I think that when I was telling Senator Nolin that we do not know how many bands are effectively looking after matrimonial real property issues, my suspicion, or my guess, is that the ones that are effectively looking after it are the ones that have already taken themselves outside of the Indian Act system. The power for them to take themselves out of the Indian Act system continues to exist and will survive clause 7. You will have sort of a patchwork. Some bands will be under the First Nations Land Management, Act, some bands will be under the Indian Act and may choose to use clauses 7 and 8. Some bands may stay under custom land management and continue to do what they do, and all of that would be legal.
Senator Nancy Ruth: The last time you were here 18 months ago, you spoke strongly, Ms. Eberts, against the verification officer, and language like "Indian agent" and so on was used.
My question to you was about fairness for women. Now that the verification officer is gone, do you see or anticipate any issues for fairness for women and children in the process of the implementation of Bill S-2 that First Nations will use in adopting their own codes and remedies?
Ms. Eberts: I do not see any more issues under Bill S-2 than may already exist in First Nations. One of the reasons we have these problems goes right back to the Indian Act. When band governance was designed by the framers of the Indian Act, they did not take into account what is often a feature of traditional governance, and that is that all the houses are clans and are represented in traditional governance. There will be a council that will have all of the clans at it, representatives of all the clans, and there will be discussion about what should happen.
However, the Indian Act set up a band council system that had a single point of power, where you got elected and you had power. This is one of the reasons why, in the review of the Canadian Human Rights Act, huge numbers of people on Indian reserves said big problems are from nepotism because one family, clan or group gets in and they just reward their friends or they do not reward others. If the Indian Act governance system had set up a more balanced recognition of all of the houses and all of the clans, then that would not arise. A number of the modern self-government agreements provide for that kind of balanced recognition.
I am saying the problem goes a lot deeper than the absence of a verification officer, but the solution is also within reach: Change the Indian Act.
Senator Wallace: Ms. Eberts, when I was listening to Mr. Quesnel it struck me as an important point in support of Bill S-2 that there is a need to have consistency in the individual rights, protections and privileges that Bill S-2 would lead to and that there must be a consistency with these individual rights across all bands.
If Bill S-2 did not exist and it were simply left to the individual bands to determine those rights, would it not result in an inconsistent patchwork, and there would be no equality of protection for the individuals Bill S-2 is seeking to provide protection for?
Ms. Eberts: That is an interesting question, especially when you consider it in light of the jurisdiction over family law in this country. It is only at the level of divorce that you get a single, nationwide, consistent system. All the provinces and territories have family laws, and they are not consistent with one another. What happens in Quebec is different from what happens in Saskatchewan and is different from what happens in Nova Scotia or the Yukon. The idea that family law will vary from jurisdiction to jurisdiction has already been recognized.
The other thing I would say is that if the First Nation is a band under the Indian Act, the Charter applies. The equality standards under the Charter provide a floor below which no First Nation can go. That is also some kind of consistency.
Given the different power structures, the different land-holding regimes, the different underlying traditional systems that go from band to band, I think it is useful for them to have some ability to inject sensitivity to local circumstances, with an underlying framework like all the provinces. They are all subject to the Charter, just as all the bands would be.
Senator Wallace: You believe those inherent individual rights are adequately addressed without the need of Bill S-2?
Ms. Eberts: There is a different question. You were talking about the sort of check-up mechanisms in Bill S-2 and the need to check up on what First Nations are doing. What I am saying is that I am not sure that I would go so far as to say that whatever check-up mechanisms there are in Bill S-2 should be aimed at providing uniformity across the nation. I think local variation can be important, and if the check-up mechanisms are too tight you will lose the ability to be sensitive to local conditions.
Senator Hubley: Thank you for your presentation, and my apologies for being late. We could blame it on the wind, but I will not do that.
In clause 20 of Bill S-2, a court may grant a non-Indian, non-member exclusive occupation of the family home for an undetermined amount of time.
I believe there are or may be concerns out there that this gives or creates a beneficial land interest on reserve lands for non-Indians, in direct violation of the Indian Act. The minister has stated that that would not be the case. He also stated that while a judge could grant a non-Aboriginal person exclusive occupancy of a residence located on a reserve, this would have absolutely no effect on the title of the reserve lands.
Would the insertion of the word "temporary" before "exclusive occupancy" allay some concerns?
Ms. Eberts: It would be safer to put into the legislation the minister's disclaimer in total. You can never predict what a judge will do. This matter may be interpreted 15 years from now when not all of the people involved in passing the legislation are here. If there is no intention to create an interest in reserve land, the safe thing to do would be to say that in the legislation. In that way there will be no question about it.
Senator Hubley: Would it be necessary to define "temporary"?
Ms. Eberts: The answer to that may depend more on the judicial process. That situation would probably arise where the children are in the custody of the non-band member, non-Indian parent and a court, the community or the couple have agreed that that is the best custodial arrangement for them and there is a very strong desire to maintain the children in their own home. It may happen also because a disabled adult is being cared for in that home and the caregiver of that adult is going to stay as long as he or she is necessary.
The reason the person is given the possessory or occupation interest will eventually disappear, and the interest should disappear with it. I am not sure how a drafter would include that, but that is how you limit the temporal element. It is when the reason for that person to be there disappears.
Mr. Quesnel: I found the recognition in the bill of the rights of non-First Nation persons who are caught in these situations to be quite progressive. For example, the Mohawk community of Kahnawake recently issued an order for spouses and caregivers who are not First Nations and are not entitled to live on the reserve to move out of the community in a certain amount of time. It is interesting to see how much that has divided the community. Nowadays many First Nations people have spouses or partners who are not First Nations and they are struggling with this issue. They believe that it is not right to arbitrarily do these things. I think this is a good step.
Before beginning with our next panel of witnesses, I want to inform committee members that Ms. Manitowabi has a civil case pending before the court relating to a personal issue on reserve property. The Subcommittee on Agenda and Procedure was made aware of this issue and has consulted the relevant parliamentary authorities related to the sub judice convention and its application.
It was noted often in the authorities that this convention is not a rule but a practice to recognize the separation between Parliament and the judiciary. It was further stated in the House of Commons Procedure and Practice, Second Edition, on page 622, that the convention does not apply to legislation or to the legislative process as the right of Parliament to legislate may not be limited. If the sub judice convention were to apply to bills, the whole legislative process could be stopped simply by the initiation of legal proceedings in any court in Canada.
The subcommittee has carefully weighed the options and felt that Ms. Manitowabi's testimony would be of great benefit to the committee and has asked her to appear. However, I ask that all senators and Ms. Manitowabi show some restraint in order to not prejudice the ongoing judicial process and not to speak directly about the litigants in this judicial process.
We have made Ms. Manitowabi aware of this. I know that she will be very careful, and I ask my colleagues to be aware of that.
We will start with Michèle Audette, who is not a newcomer to our committee. She is the 2nd Vice-President of NWAC and President of Quebec Native Women. With Ms. Audette is Émilie Grenier, a legal and policy analyst; and Teresa Edwards, Director of Human Rights and International Affairs.
Welcome to you all.
[Translation]
Michèle Audette, 2nd Vice-President, Native Women's Association of Canada, and President of Quebec Native Women: [The witness spoke in her native language.]
Hello, everyone. I am very honoured to be here and I acknowledge the Anishnawbe nation for welcoming us to their territory now shared with us all. I am pleased, on behalf of the Native Women's Association of Canada and Quebec Native Women, for whom I work daily, to be with you.
In a few minutes, we are certainly going to tell you the same things as our predecessors concerning the bill on matrimonial real property, but what is important is to thank you again for taking the time to make, perhaps, some new amendments or find some new solutions.
For the women's movement across Canada, this is an opportunity to settle things once and for all because this has been going on too long, and it is often women and their children who find themselves in situations of great vulnerability, especially where spousal and family violence is concerned. Unfortunately, even though we have this opportunity, we must be frank with you. We're not completely convinced that this bill is going to deal with all our concerns, whether we are women, leaders, men or people involved in the communities, because we see there are deficiencies.
It is important to be able to tell you, once again, that in terms of justice, community services and consolidating the capacities of our governments and our communities, there is a lot of progress to be made before coming up with a very good bill. Also, our national president, Ms. Corbiere-Lavell, sends her greetings. She is taking part in another event today, but she wants you to know that all too often it is women and children who are affected by this situation, which sometimes forces us to leave our communities and our homes for the sake of safety.
During the consultations carried out by the Native Women's Association of Canada in the regions and territories for nine months — it is important to specify this — women repeated that they wanted to live in peace. I think that is something that Canadian society deeply desires.
It is also important to point out that, in this bill, there is no mention of socio-economic aspects. The realities facing First Nations in the communities differ greatly from those of Canadian society. You know this, it is proven. The colonialist system, the dispossession of lands, the residential schools, and so on, have affected, and continue to affect, the situation in our communities.
We also note the housing shortages. In some regions, there may be up to 15 people living in a house. So most of the housing in our communities is over-populated. This is a reality that is not reflected in this bill.
What is also very frightening is that most of the communities are located in remote or semi-remote areas and have limited access to a justice system. This situation should be taken into account. How can we get access to an appropriate justice system instead of spending long periods waiting for our cases to be heard? This increases the risk of violence against women and their families. Some women even give up and drop their cases because of these obstacles.
Resolving the issues concerning matrimonial real property also requires collaboration. I guarantee that work between governments and Aboriginal governments, First Nations and various groups such as the Native Women's Association of Canada, can be successful. We are dealing with very basic issues here. We are in the field daily saving lives, maintaining lives or trying to advance things. We are the first ones to find some solutions. Hence the importance for the government of working in close collaboration with us, and not just for nine months, so that we can reach what I call "sustainable development."
Many of our members have said that this legislation was too prescriptive. It does not support the Native legal systems that may exist in some of our communities. It is important to say that this bill is seen by some of us as being an opportunity. Finally there will be an end to the legal vacuum, but not at any cost. We need only think about the deficiencies in our communities. How are we going to accommodate this new bill? How will it be implemented? So it is important to give some thought to the whole question of training and mediation. A tool like mediation might prevent a divorce or a legal separation.
There are not many shelters. For 633 communities across Canada, there are only 35 or 40 shelters. So where do we go if we end up in a situation of spousal and family violence? We also have to think about transition houses. If the court decides that I have to leave my home, where do I go? Am I going to end up marginalized and living in poverty because I have to leave my family and community setting?
Thought should also be given to the whole issue of public safety. Some communities have real police. In Quebec, that is not the case. We have casuals, security officers, who cannot act as police officers. The notion of training should figure in this new bill.
Are our social services prepared for this big change? Provision has to be made for that too.
In closing, I want to say that I think we need to put an end as quickly as possible to the legal vacuum that causes a lot of insecurity for Aboriginal women. Bill S-2 provides some form of protection in cases of emergency for our women, although it does not answer our key concerns expressed to the government for several years now.
My deepest desire, as a mother, as President of Native Women of Quebec and also as a member of the Native Women's Association of Canada, is to see our nations, our communities, our Aboriginal governments, develop our own systems that are consistent with our traditions and cultures while respecting human rights and the principles enshrined in the United Nations Declaration on the Rights of Indigenous Peoples.
[English]
The Chair: Does anyone else want to add anything?
Teresa Edwards, Director of Human Rights and International Affairs, Native Women's Association of Canada: We will defer to Ms. Audette, and I am available to answer any questions.
The Chair: Thank you. We will go to Ms. Manitowabi to speak.
Rolanda Manitowabi, as an individual: I appreciate the opportunity to be here and to share a little bit of my personal story and my personal experiences. I am not sure how I ended up here, but thank you for that call on Friday. I am really grateful for that.
In 2001, I began a relationship and we decided to build a home together on the Wikwemikong Unceded Indian Reserve, of which I and my ex-partner are band members. He had received a loan of $30,000 from the band to renovate an old trailer. We had decided to build a house instead.
With the help of family and whatnot, we began building the home. Needless to say, it did not take long to use up the $30,000, after which I had considered contributing my own money and financing.
In January of 2002, I had asked the ex-partner to sign over part of the land into my name. He came back with a land transfer, indicating that the land was transferred to my name solely. That land transfer was signed by the band representative for the lands department.
It was not until May of 2008, after I had been kicked out of my home, that I found out there were in fact three land transfers signed the very same day as mine. One of them was to transfer the land to my name solely; another land transfer was signed to both of us as joint tenants; and then it was voided because the word "tenants" was spelled incorrectly. There was another land transfer, signed by both the band representative and the ex-partner, to transfer the land to both of our names. I did not know that until May of 2008, however, so I had a land transfer from the band, transferring the land that the house was being built on to my name.
We moved into the house in 2002 and I began to put my own money into financing the materials to finish the home. I tried time and time again to get my name on the house because the original loan of $30,000 was only in his name, and I wanted to have my name on the title of the home. I was willing to take on the responsibility of the loan as well. That loan had increased for the additional sewer and field bed that was put in, so it was about $37,000. My name was added to the title of the house and to the loan in 2003.
Things in our relationship were becoming stressful and strained. I worried about how much money I now owed. Although I felt like I was being taken advantage of, I thought, "At least the land is in my name and that is where the house sits." I asked that I have sole title of the house. I would be willing to take over the remaining amount of the loan, plus what I had financed. Of course, I was continuing to pay. He signed a land transfer in 2005. He signed a quick claim transferring the title of the house and the loan to me. The band did not process the quick claim.
I tried to continue to rationalize and make things work. In terms of trying to work things out in my relationship, I tried to believe when I was being told, "You will always have a place to live." I have one son who is now 17. He was always told that, "The work we do is done for you, this house will be yours," and those sorts of things. I tried to rationalize and believe that, but things became more strained and I was becoming more exhausted.
The ex-partner I had worked for about one and a half years of our five-year relationship. I was covering most of the expenses at the beginning, and later on covering all the expenses for the home.
In August of 2006, I was totally exhausted and gave up. I decided to end my relationship with him. I had a lot of debt. I felt really isolated. I tried to negotiate a way that my son and I could stay in the home, and he would move out.
We were trying to discuss how that might work out. He had become very ill and was not taking care of himself. I thought maybe he could move out in the spring and I would continue to take care of things. We thought we would do that. However, in December of 2006, my son had gone away for Christmas and was not going to come back until New Year's. In my mind we had already separated, although we were living in the same house. We were living separately in the house, since the August before. I went away for New Year's. I got a phone call on New Year's Day saying, "We need to talk," and I knew he was angry. I picked up my son in Sault Ste. Marie. I did not want to bring him home because I knew things were not good. I dropped him off at a neighbour's house and told him I would be back to pick him up. When I went home things exploded. There were a lot of things that happened. I was forced to leave the house. I could not believe what was happening. I was in a crisis, and we argued. He is 280 pounds, six feet tall, walked with a cane, and was hovering over me and yelling. All of this chaos was happening that day.
My son left and he had a home. When he came back, we had no home. I went to my sister's house and she was not home. It was New Year's Day and I did not know what to do. I went to the women's shelter on the island, in a neighbouring town. We stayed there overnight, until I could contact my family.
I went back home the next day and my keys did not work. The locks had already been changed. I tried to get my personal belongings. I just did not know what to do. That week I called the housing department numerous times and they never phoned back. I phoned the police and they said because his name was on the title of the house — and because he did not hit me — he had a right to be there and they could not remove him.
I was not sure what to do. I was in shock. I was devastated. I was in emotional turmoil. I could not believe what was happening. I called and tried to tell him to leave.
The Chair: I am sorry to interrupt you. Forgive me. Rather than going into personal things — because it is still in front of the courts — I respectfully suggest you look at the challenges you have had from the point of view of this bill. I am not being disrespectful of your challenges, but I want to ensure we do not go to places where it is still in front of the courts.
Ms. Manitowabi: Of course. I tried to normalize things. I tried to go to work as best I could. I moved in with my sister. I am so thankful for my family, who was helping me out.
I could not go back home because I was not safe. Things would have erupted there. I sought advice from a lawyer, who told me to write a letter telling him to leave, to leave the keys and that I would give back about $5,000, which was his contribution to the payments of the house. I did that and received no response.
When I went to work, I received a quick claim in my mailbox — because I worked for one of the organizations on the reserve — for me to sign over the house back to him, as well as the loan. I thought, "There is no memo, no telephone call or communication. There is just this quick claim in my mailbox for me to sign."
I wrote back, cc'd the chief, and told him I would not give up title to my home. That was that.
The thing that continues to be at the forefront here is that no one talks about it. There is just silence. No one asked me — maybe two or three people, and one of them was the victim witness person — what happened. No one says anything. I was sitting on council at the time, and went back to the council table. There may be policies within the First Nations to protect women and children, but sometimes — maybe there are no resources or whatnot — it does not happen; no one says anything.
The Chair: If this bill is in place, how would it have helped you? How will it help you?
Ms. Manitowabi: If this bill were in place, I think there would have been an option. If you are in a situation where there is domestic violence or abusive behaviour, you have no choices. When I was thrown out of my home, I had no place to go. That was my home. To this day, I continue to pay for that home.
If this bill were in place, it would have given me an option or some place to go.
The Chair: How difficult was it for you to access justice? Were you easily able to contact a lawyer where you were living? How were you able to deal with that?
Ms. Manitowabi: The challenge is that many of the lawyers who are available to us do not have familiarity with First Nations processes. Sometimes there is reluctance. I talked to five or six different lawyers. It is the First Nations lawyers who have more familiarity, and then there is a conflict of interest. Sometimes that is a challenge, but luckily I was able to find someone.
The Chair: You have been very brave. It takes a very brave person to publicly come and speak and we appreciate your giving us a face to this bill we are trying to study. We thank you. Maybe you can elaborate when my colleagues ask you the questions.
I will start off with the first question to NWAC. If there is violence, there is an emergency order that a woman can access through the court system for 90 days, and then another 90 days for a total of 180 days.
You have first-hand knowledge of what happens on-reserve. How easy or difficult is it for women to get this order? Then, for the order to just last for six months and that is it, can I have your input as to what you think of this protection order that lasts only for six months?
[Translation]
Ms. Audette: If I may, I am going to answer for Quebec. In Quebec, when women report abuse, they have a hard time getting orders. To our knowledge, they go straight to a shelter, or else they ask to leave the area to get away from their aggressor or offender. Itinerant courts travel to isolated and semi-isolated communities, but they do not come every week. So this discourages people from filing complaints, or having what you mentioned, because of the system in place.
For now, I do not know whether this bill is going to affirm in black and white that this is something mandatory, that will apply to us. That would be good news. But I think you have fine living example here, in Ms. Manitowabi, that the various players in the justice system — whether lawyers, judges or police officers — do not understand the complexity of the situation, on account of their lack of training. So in your thinking, you'll also have to think about training for our police, judges and lawyers.
[English]
Ms. Edwards: I would add that when you hear the situation of Ms. Manitowabi, I do not know that this bill would make her any safer, given that there is no funding allocated to shelter, second-stage housing or, as the president of Quebec Native Women already indicated, training for enforcement and implementation. Having a best practices website available to chief and council is simply insufficient and will not make our women safer in the communities.
Senator Brazeau: Ms. Manitowabi, you should be commended for having the guts to be here and present your story. On a personal level, I have heard numerous stories like this and, unfortunately, people are sometimes fearful of talking about this in the public domain, so kudos to you.
I have a very simple question to you. You did mention, in contrast to what we just heard, that there are some lawyers who understood the First Nations issues more, but that there were conflicts of interest. Regardless of that, do you believe that if this bill were to be passed, first, it may have prevented some issues within your situation from happening; and, second, that perhaps it may prevent other Aboriginal women from going through what you went through? At one point, you did mention that if this bill were to be passed, it would at least have provided you with an option in terms of recourse.
Ms. Manitowabi: Yes, I think if this bill is passed, but I have not been following it; I just read the summary of it. Part of the reason why I came here to share a little bit about my story was because it gives some place to go.
There are some options. Not everyone who separates or has a family breakdown ends up in situations like I did. Sometimes things can be worked out. Sometimes things can be negotiated or whatever. Maybe there could be other processes in place like mediation or other things. There was just no reasoning in my particular case.
The only people that helped were from the shelter, the Manitoulin Family Resources. I continue to seek support services from them because they are willing to talk about dealing with the impacts of this, because it is long lasting. I cannot even articulate the extent of the impact that this has had on me and on my son.
The bill includes opportunities for First Nations to develop their own laws. I think that is a good thing. I just think if it is not passed and if something is not done, then more women and children and other care providers of children will suffer.
I tried to go to the band. They were non-responsive. Having done a little bit of work on the impacts of this, I understand now that maybe they do not know how to help, how to talk about it. Maybe they do not know what to do. However, when they are doing nothing and saying nothing when you are in a crisis and in turmoil, you take that as they do not want to help you. That may not be the case, but if this is not passed, then what?
Senator Brazeau: Hopefully, perhaps your story, among others, will start raising more awareness on what is happening in some communities.
[Translation]
I have a question for Ms. Audette. During the study of Bill S-4, which preceded this bill, you proposed some amendments. Bill S-2 contains certain amendments, fairly major ones, which were proposed by you and other Aboriginal groups. Are you satisfied with the amendments that were made?
You also talked about the fact that it would be important for Aboriginals' own systems to be recognized. But a community that develops its own codes will not be recognized because of the Indian Act. This bill, however, offers Aboriginal communities a chance to develop their own code in this area. Even though the bill isn't perfect, even though it does not deal with the issue of housing shortages in the communities, violence against women and the socio- economic conditions of Aboriginals, are you able to conclude that this bill is a step in the right direction?
Ms. Audette: Senator Brazeau, you are a fine politician. I feel that you want to steer me towards an answer that might be dangerous.
I could say it is a small moccasin. We'll talk about moccasins since we are talking about First Nations. I wll say it again — and thank you because it is being recorded: yes, there were some changes that may be a bit more comfortable or that open some doors for us.
As for the First Nations, if I would appeared before you when I came to Quebec Native Women when I was 28 years old, I would have been a little more radical but, as we get older, we get wiser. So today I say to you that, if the communities are given the opportunity to make their own laws and regulations, this must be done in accordance with the Declaration on the Rights of Indigenous Peoples. We shouldn't create little enclaves within a big state, Canada, in which women can suffer greater harm.
Why do I say that? Let us be frank. The Indian Act, most of us have assimilated it from top to bottom, and there is still discrimination against our brothers and sisters because of a system that has existed for over 130 years.
If we were told from one day to the next that we had that authority, I would tell you that it is important to ensure that the women's movements — like the Native Women's Association of Canada and Quebec Native Women — are taken into account in this sort of action. Why? So that the brainwashing experienced by the First Nations ceases to exist. So it is important that we take part in the process of popular education.
I will also tell you, Senator Brazeau, that we are giving this bill a favourable reception because it will put an end to the legal vacuum. It will protect women with regard to family and spousal violence. Nevertheless, pay attention because there are a lot of deficiencies in this bill and we are going to be back year after year to tear another strip off you — forgive the expression, but that is what we do. We are into politicking, lobbying, putting pressure on you by saying, through the media, that today you can move the government towards some interesting solutions.
Once again, after everything that our sister here has been through, yes, it is a salve, but if our communities do not have the financial, human and material resources needed, it is going to be a failure. When you live far from the urban centres and you wait a long time for a sentence, a decision or some protection, you just give up and say, "What is the point in filing a complaint or reporting something?"
It is a little moccasin step, but when we walk, we have two feet. So there is another moccasin to fill, and the ball's in your court.
Senator Brazeau: I appreciate your answer and I agree completely with you. As you said, everyone is entitled to come here and tear a strip off us. Still, I also look at the other side of the coin. If the bill is adopted, it gives all Aboriginal communities the opportunity to develop their own codes. So, if we don't have all the answers in this bill, it gives Aboriginals a chance to work on what may have been missed. To my mind, accountability works in both directions.
Senator Nolin: The way I understand it — and I am not familiar with the committee's work — Bill S-2 offers you a range of rights, and it will be up to each community to say whether it wants to keep them or have something else.
I am going to ask you to comment on my statement. All those who will be affected positively or negatively in their community through the adoption of something other than Bill S-2, we are going to ask them to vote on a new legislative document that will replace the measures provided for in Bill S-2. Is that how you understand the bill?
Ms. Audette: I am not a legal expert, but that is what I have gathered from reading the bill. Obviously it is extremely complex. Tha is how I saw Bill C-31, in which amendments were made and some delegated power was given, because I get the impression that this is a delegated power, once again, and not a full power. We said to the communities, "You have so much time to acquire a membership code." Out of the 633 communities, only 200 acquired membership codes.
Today, if we tell the communities — and that is how I understood it — that they have a chance to set regulations or something that will meet their needs respecting matrimonial real property for their nation, of course they are going to say it is good news, but they are going to wonder how they are going to get there without the material and financial resources.
Senator Nolin: I grant you that, but this project is not a financial measure. That will come with another legislative measure authorized by Parliament in a budget. That is how it works.
I am concerned with the principle of law. A measure is tabled in Bill S-2. If you want it to be amended by a community, the community will be free to do so. It is not a regulation that is going to be a law. It is a legislative measure that will be adopted by the community.
What I am wondering about is this clause 8, in which power is given to the community to vote in a majority referendum on the implementation of a law that would alter what Bill S-2 provides. Do you see, in clause 8, an improvement to be made? It is up to the majority, and there must be at least 25 per cent of the population casting their ballots on voting day. Is 25 per cent enough? The majority, we cannot ask for more.
Then there are measures. The council has to inform the population about what is in the bill that is going to change what Bill S-2 provides. The council will have to ensure that people are aware of all the details, and promote their new bill.
You heard Ms. Eberts's testimony earlier on. Does it reassure you to see this section 8? What Bill S-2 gives with one hand, the community cannot lose it because there is some skulduggery — sorry for the term — going on among the council leaders. The population gets Bill S-2, which provides for a protection regime, and if the council wants to offer something else, it is up to the population to judge whether it is in its interest.
Ms. Audette: I have had the opportunity to travel a lot across Canada. For most of the communities, which are very well organized, even if, under the law, we are not legally accountable to our population, I am proud to say that there are a lot of communities that do indeed hold public meetings weekly or monthly. For them, I think it would be natural to say, "We plan to put a law or a regulation in place and here's how we've got to do it."
But we must not forget that others have been subjected to, and are still subject to, the brainwashing of the Indian Act. Mr. Quesnel spoke earlier about the Land Management Act. Ms. McIvor and I, in those days, criticized it because there were some legal vacuums. We wondered where the women were in those rights? We were then told that 20 per cent of the population could vote in a referendum. We said to ourselves that 20 per cent was not a lot for communities where there are some large families in power. We are not talking just about elected representatives, but about big families. So maybe there are some concerns which I cannot ignore, where those people are concerned. It is increased by five per cent, but I would say that, in all the communities, it is important for people to be able to cast their vote.
Senator Nolin: That 25 per cent, that's a minimum of 25 per cent that have to vote?
Ms. Audette: Yes, of the members.
Senator Nolin: That is right. You add the word "members" because the electoral meaning is going to be fairly broad.
Émilie Grenier, Legal and Policy Analyst, Native Women's Association of Canada: In the bill, it is written that these are First Nation members, so it would be the members according to their membership code. If the community adopted a membership code, it won't be the same list as the federal government's. So that could create some problems.
Senator Nolin: The idea is that the maximum number of people affected by the amendment to the rights are going to cast their vote. That is what I am trying to get you to say.
Ms. Grenier: That may be so, but in the clause on eligibility to vote, it says "a member of the First Nation." So we have to specify which member we are talking about.
Senator Nolin: I agree. But 25 per cent is the minimum threshold. There have to be at least 25 per cent of the people who vote. There will be meetings to find out about those who want to change the right and those who wish to keep Bill S-2. It will be like a referendum. The text of the bill cannot be kept secret. The law provides that the text, which contains the amendments, must be made public. One quarter of the population must vote and it is the majority that decides. I think you have got some protection there.
Ms. Audette: If the entire community votes, and the age is 18 for a referendum, and the majority decides that we do not want Bill S-2, and we do not get anything in return, is this situation also possible?
Senator Nolin: If that is what the population decides, yes, it is possible. That is why I am telling you that Bill S-2 contains protective measures, which may not be perfect, but, if you want to enhance them in your community or say that you do not want them at all, it will be up to you to convince a majority of at least 25 per cent of the population and say that you are rejecting the rights proposed in Bill S-2. This will be entirely legal.
Ms. Audette: In another life, I was Associate Deputy Minister, Status of Women — a short, but pleasant, life. When we had bills, we had to plan budgets to go to Treasury Board.
And I am telling you once again, it is important. This bill, as you mentioned, does not include large amounts of money. But it entails some changes. Hence the importance, in the other bill, which will be more budgetary in tone, of ensuring that women's groups, not only nationally, but also regionally, are taken into account. What is required is popular education and prevention, rather than reaction.
Senator Nolin: I agree with you. Thank you for your testimony.
[English]
The Chair: You have so much experience with women on reserves. Will this bill really change the rights of women on reserves?
Ms. Audette: I will try to respond in English.
[Translation]
The Chair: That is not necessary. French is fine.
Ms. Audette: As I answered your colleague, Senator Brazeau, it is a small moccasin and the second one is missing to make real changes.
[English]
The Chair: Thank you all for coming. It has helped us understand the challenges women are facing on-reserve.
Ms. Edwards: I wanted to reiterate the last comment. With respect, we skimmed over the 12-month transition period. For us, our women and population and constituents have repeatedly told us 12 months is not a sufficient transition period if this bill were to go ahead. First Nations are dealing with governments that are already overloaded with many socio-economic issues.
The Chair: How long do they say? What we have heard from the AFN is up to three years.
Ms. Edwards: That is exactly it. We are looking at a longer-term plan: two years, five years and ten years. Those are the types of plans that need to be developed in cooperation with First Nations, not government designing it and having patchwork input from First Nations. You will have a holey quilt, if you will. Too many resources will also be spent, and it will not be a satisfactory result for anyone.
We would rather take the time, do it right and stop pushing ahead in a rush to have a quick resolution that might not be a good one for anyone.
The Chair: Ms. Edwards, the minister, with the previous Bill S-4, had very glowingly described the centre of excellence that would help people to implement the matrimonial real property on reserves.
Can you comment on how the centre of excellence would help people implement this bill on reserves? Also, I would like to hear from you how women will access justice under this bill.
Ms. Edwards: For the first question, all I have to do is look at section 67 of the Canadian Human Rights Act since June of this year and how that is being implemented on-reserve.
I travelled to communities across Canada and talked to the women there, and none of them, because there was no implementation — and I am extremely strategic and creative in how I engage with the Canadian Human Rights Commission, and they have been fantastic to supply me with documents that NWAC developed with them to educate and inform our women and communities about the implementation of the Canadian Human Rights Act. Even with all those great efforts —
The Chair: I know what you are talking about, but the public is listening. Can you elaborate on what that act was supposed to do?
Ms. Edwards: As of June 2011 the Canadian Human Rights Act applies on-reserve, where previously it did not. It was initially intended as a temporary measure that lasted over 30 years. Now it was passed and applies on-reserve.
Even though there was a transition period in place for the Canadian Human Rights Act to apply on-reserve for our First Nation governments and our communities to prepare to receive that, as a person working at the Native Women's Association of Canada, I can tell you I get weekly phone calls from people who have no idea what their rights are. They have no idea how the Canadian Human Rights Act should be or is to be implemented on-reserve, despite the many efforts that have been made.
If I look at that as an example and I take that as a template, if you will, to see how MRP will be implemented, the success is very unlikely, particularly given we are only looking at having a centre of excellence.
As I said, there is a multitude of socio-economic issues that plague our First Nation governments dealing with water. We have 118 communities with a water advisory. To ask them to go online to look at best practices to implement Bill S-2, matrimonial real property, is not a solution. It is not a reasonable solution.
Senator Nancy Ruth: It is all about the same stuff. Ms. Eberts was talking about the "must include" procedures issues, but one of them is that there be some mechanism for re-evaluation of the code and so forth. Why would that not help women do that?
Let me give you a bunch of questions, because I want to ask Ms. Manitowabi as well. You had not seen this bill until fairly recently, and most Canadians have not, so be quite at home. Most people do not read these things. My experience of almost anybody and the law is you do not go near a lawyer or even know that a human rights commission exists until you need one. I never went to one until I got fired. Then I needed one and I went. I think most people are like this.
It is not my expectation that women know about this, but the issue of family violence is not solved by this legislation. It is one little chink, a small moccasin, whatever.
However, the issue has been around, at least the bill, the vacuum has been around for 20 plus years.
You are from Manitoulin Island. I am from Ontario, too. Was there no talk on Manitoulin Island with your sisters or other women you knew that there needed to be a code put into the band council or some kind of mechanism that would help protect you better? Was this not what kids in high school talked about when they saw violence in their homes? I am having a whole bunch of trouble understanding why there has not been a massive uprising to get this kind of stuff on the way. I have trouble believing that the process of implementing this bill will not create a solid body of women who will watch with eagle eyes how it is implemented, how the codes are built, how the ratification process takes place, a body of women who will get out there and get their friends out there to vote for it, or against it, depending on what is in it.
Why are the women not intimately involved with their own lives and the violence against them? That is my question. I know there are troubles with this. I know it is not the answer, but it is a small moccasin.
Did you not ever discuss with your friends or family that something needed to be done?
Ms. Manitowabi: Absolutely, and certainly since January 2007. It has absolutely been talked about. The idea that we should have a law on this came up at the council table too, and then it stopped.
There are many issues, much concern and a great lack of resources. I cannot speak for everyone, but in my community we are overwhelmed with issues and concerns. There is a lack of follow-up processes and resources to move things along.
I work full-time. I am part of many things to help change the community. I oversee the operation of an alcohol and drug centre. We have issues with abuse of prescription drugs. Ours is a community in crisis.
There is a lack of organization and follow-up. There was mention of our traditional and cultural values. In my own community, different people have different views on culture. If the true value of women is to be recognized and honoured, First Nations should be doing something to protect them.
Senator Nancy Ruth: I will push a little harder. I appreciate that your life is complicated with all these issues going on at the same time, as well as your job. If three or four women get together over tea or something, can they not pick one to take leadership for the first six months and then another? I do not understand what the role of NWAC is in organizing women in these communities to move forward, to push the band councils.
We would have this stuff if band councils had moved. That has got to be so. In 22 years, it is not possible such a situation exists. When Trudeau brought in the Charter, there were no decent equality rights for women, and we worked on it and we got it. Why can this not happen now?
[Translation]
Ms. Audette: Thank you for having all this lovely passion. It is nice to see that there are still such motivated women.
You have to understand that we are swamped by social problems, social crises. We are always in reaction mode. The suicide rate, violence, sexual assault, we have got it all. And, often, it rests on women's shoulders. We are told that change will come with women. But I always say that it is with men and women.
Across Canada, NWAC is not directly active in the communities; it is the provincial and territorial organizations and unfortunately there are not a lot of provincial and territorial organizations that have the financial ability to do so.
We mobilized close to 200 women last weekend to talk about identity and citizenship and say to them, "Let's stand up! We have rights and we can make changes." A month before, it was about violence against women; another month, it was about mental health. We do a lot of work, but the women say to us, "Do it while we save lives locally." So they invest a lot of hope in political organizations.
With our organization, we do that. We have got a seat at the chiefs' table in Quebec — I think it is the only organization in Canada. I guarantee you that we do not let go with the chiefs, who are mostly men, reminding them that the work we do is for both men and women. Unfortunately we are the ones who are affected most. There is very nice collaboration. The chiefs in Quebec signed a solemn agreement with us to combat violence and sexual assault. We talked to them about changes with the Canadian Human Rights Commission and about changes with Bill C-3. It has been a 37-year history of solid organizations in Canada and in our area. We would like to have women like you in the communities but unfortunately they are swamped with social problems. But there are some, we must not despair.
[English]
Ms. Edwards: I would like us to be careful not to put this on our women or on our chiefs. Systems have been created by Canada that cause us to fight amongst ourselves: the creation of the Indian Act; the situation of Indian registration — who is a member and who is not, who has benefits and who does not, who can vote and who cannot. The burden cannot be put on women to go into communities to push this forward and implement it. We have a huge burden already. We are not working as government workers with 50 employees per secretariat. In any of our organizations we carry 50 files that we work on at a national level, and we respond to all of them to the best of our ability. We are there to make changes to policy, legislation and programs, always trying to implement our basic rights as set out in the United Nations Declaration on the Rights of Indigenous Peoples as a minimum standard.
When we work with our provincial and territorial member associations on making changes at the community level, we are working on urgent issues such as the removal of children from our homes, which is happening at a higher rate than ever was the case with Indian residential schools. That is an emergency situation. The provincial governments and the state are coming into our homes, removing our children and placing them with non-Aboriginal families. That is the kind of emergency that we are looking after. There is no clean water; our housing is overcrowded.
We do not have the luxury of looking at matrimonial real property breakdown after marriage. That is a luxury issue for us. We are talking about high rates of violence, missing and murdered women and lack of justice at every level of our lives.
Senator Nancy Ruth: All those things for me are threads in a tapestry or straws in a basket. They all come together, and this is one piece of it. It all has to be woven.
Ms. Edwards: It is one very small piece of it, and we are here today to answer to that.
The Chair: Senator Nancy Ruth, I will have you and Ms. Edwards have a private conversation. This has been interesting, and I thank the panel.
Senators, you have in front of you a submission from the Association of Iroquois and Allied Indians. Because of the short time we have to study this bill, we asked anyone who wanted to make a submission to us to do so. I ask you to look at this submission before we proceed to clause-by-clause consideration.
We will break until six o'clock. From six to seven o'clock we will finish hearing from our witnesses, and at seven o'clock we will go to clause-by-clause consideration.
I would like to welcome the next panel, which includes the National Aboriginal Circle Against Family Violence, Danalyn MacKinnon, Chief Charles Weasel Head, and Dorothy First Rider.
We thank you for your patience and we very much appreciate your being here to help us understand the challenges faced by Aboriginal people.
We will start with the National Aboriginal Circle Against Family Violence, Ms. Olsen Harper.
Anita Olsen Harper, National Aboriginal Circle Against Family Violence: I will begin by saying that I do consulting work for the National Aboriginal Circle Against Family Violence, and I recently completed my PhD on the interpretations of resilience in the context of domestic violence.
I will now discuss the issue of the federal Indian Act not providing for the fair and equitable division of matrimonial real property on reserves when there is a divorce or separation. This legislative gap is a void in the Canadian legal system. There is nothing to resolve legally matters concerning the division of real property upon the breakdown of marriage and marriage-type relationships. It affects only those living on reserves.
Provincial laws do not apply because of the parts of the Constitution Act that specify that Canada has exclusive legislative authority with respect to Indians and lands reserved for Indians. In 1986, the Supreme Court of Canada ruled that courts cannot rely on provincial or territorial laws to order the division of matrimonial real property on reserves.
The resolution of MRP issues to non-Aboriginal Canadians began in the 1970s, with the courts' recognition of discrimination against women regarding these rights when marriages ended. Through legislative action — provincial and territorial family law statutes — the courts are granted particular powers to allot or change rights of possession in relation to matrimonial real property. The goal is to divide, in a fair and equitable manner, the matrimonial home in order to save women and their children from the financial stresses that often readily lead to impoverishment. Women and children are those most often negatively affected because of the lack of legal protection during this kind of personal life crisis.
There have been many domestic and international organizations that have referred to the MRP matter, including reports from the UN. All these have urged Canada to take steps to address and resolve this issue, which is so damaging to an already vulnerable population group.
The National Aboriginal Circle Against Family Violence conducted a series of interviews in late 2006 to gather responses from women in INAC-funded women's crisis shelters on how they would like to see MRP issues resolved. However, as many had not realized such issues existed because they saw the manifestations of this lack of human rights as normal, they acknowledged that they would need more time and education before coming up with more complete responses. As an interviewer, I had only so much time to spend on conducting focus group sessions, and this, I recall, was problematic for most of us who were involved in what was called the consultation phase.
Some of these recommendations are that MRP solutions must, first and foremost, consider the security and safety of women and children. In societies that were matrilineal, women were landowners. This should be considered in MRP solutions, especially for those First Nations with this tradition. Use legislation, or parts of legislation, at all levels of government in ways that are approved by the community until the First Nation develops its own laws. MRP solutions must include time and resources for First Nations to develop well-thought-out MRP regulations, which may or may not be implemented by federal or provincial law, depending on community decision, as enforcement of any derived solution is essential.
They must consider how MRP regulations can complement a First Nation's other bylaws and not work contrary to them, or to rework the existing bylaws to accommodate MRP regulations that are desired by the community. It was clear that having to worry about exceeding the bylaw authority that is allowed by the Indian Act should not have a place in providing security and safety for women and children.
They must strongly consider how federal, provincial and territorial legislation will impact First Nations sovereignty and in terms of self-government agreements.
There must be no abrogation or compromise of sovereignty, nor of treaty rights. There must be no change towards "chiseling down" First Nations rights to land, or potential rights to land.
Some thought should be given to applying provincial law in cases of marital or marital-type relationship breakdown, although there was reticence in these expressions.
A First Nation should ensure that traditional values are reflected in any regulation it creates and are grounded as much as possible in cultural views.
The conflict or jurisdictional issues between the federal and provincial governments that prevent resolution of MRP issues must be resolved.
In conclusion, the most important view is that the focus has to be on the collective future of Aboriginal people, and this was interpreted as a focus on the security and well-being of children.
Danalyn MacKinnon, as an individual: Thank you for asking me to appear before your committee. Given the important work of the committee, it is indeed a privilege.
I appeared previously before this committee in regard to this legislation. In fact, I have been involved since before the report of Chief Wendy Grant-John with the initiative of the federal government to tackle this legislative gap. I have been involved since 2002.
I do not represent any group and am appearing as an individual. However, I am a lawyer acting for family law clients in Northwestern Ontario. The individuals I represent live mainly in remote fly-in communities. There are some road-access communities.
I live in a small city where there has been a great migration of First Nation individuals and families out of the reserve communities. I am also a member of a First Nation band in Treaty 3.
When I appeared on the last occasion, I made some suggestions for changes to the legislation. I am particularly grateful that the previous verification process has been eliminated. It was contrary to the concept of self-government.
In reviewing the act as it is now, I wish to make a couple of comments about some sections.
Clauses 8 and 9 of the act contain what I think is a presumption that First Nation decisions are made in the same manner as the governing institutions of Europeans, that is, by voting. In my experience, the primary method of decision making by First Nations that I deal with is consensus.
Clause 9 needs to include a term that the First Nation law may be passed in accordance with the traditions and custom of the First Nation or a voting process. This is the respectful approach and also mirrors the differences between communities that act in elections, some of them working on traditions and others using the Indian Act voting requirements.
When someone is sitting across from a lawyer — someone such as Ms. Manitowabi, who appeared previously here — I need to be able to direct them on the appropriate process that I am going to employ for them. I look at clause 11 of the bill, and it says that First Nation laws come into force and have the force of law on the day on which they are approved.
When I look at clause 12, it says that clauses 13 to 52 do not apply if First Nation laws are in force. Clauses 13 to 52 are the sections that give definitions, formulas, provide identification of rights, timelines and matters can be brought forward by way of an application, and the important factors that need to be considered.
I am concerned about the circumstances where a First Nation approves a First Nation law, but fails to determine a process to access the law or the parameters of the law. Without those two things, in my submission, they are meaningless rights.
I look at clause 7(2) of the proposed legislation, and it says the laws must include procedures for amending and repealing them, and may include provisions for administering and enforcing. In my submission, they must include procedures for accessing the rights and setting out the legal parameters that are to be employed. Even if the actual parameters are based in First Nation culture, people need to be able to know what the onus of proof is or the definitions that they will be dealing with. I think it is important for that to be a requirement of the First Nation law that may be passed.
Again, if I look at clause 11 of the bill, I think this issue of judicial notice is concerning. When I read it I thought the First Nation laws come into force and have the force of law — which sounds very powerful to me — on the day they are approved or on any day that may be specified in them. Also, judicial notice must from then on be taken of the laws in any proceedings.
What I did not understand when I read that is whether a judge is just taking judicial notice: "I have noticed it; I have looked at the principles you have set out." All right, it could be the end of it. However, it does not say that the judge should apply it, implement it, or give it any priority. I was not sure, when I read that section, exactly where the First Nation law will stand in regard to other laws.
I say that because sometimes half the assets are off-reserve and half are on-reserve. For example, on-reserve might be the home. Off-reserve might be the pension or bank accounts if people have those kinds of things. Where does the First Nation law fit in regard to those situations? Where does it fit if one party brings an application under provincial law for those assets? When I read the act, I was not clear exactly what paramountcy the First Nation law had.
I can say that although I have that question about it, the legislation has come a long way. It will take some time to have cases dealing with the legislation to see what the true impact of it is. I am concerned about the number of women and children who have already had to leave their homes and move to urban areas because this legislation has not been in place.
My last point is that — and I know this has been brought up previously — without resources, there is no justice. In the long run, it is my opinion that resources should go to the First Nation laws, community resolutions and those mechanisms that they can create. I think it should go there first. I say that because that is where the people are. Secondly, it can go to judges, lawyers, and courts. The reason I say that is that I do work for a First Nation child welfare agency in Ontario. It pioneered First Nation alternatives to children being put through their custody or the care of them being put through the court process. Due to the initiative of the chiefs of the area where I live, the result is that communities and families make decisions. They find local alternatives and their children are placed in their communities. We do not have court proceedings; only to get rid of Crown wardship orders. Other than that, the care of children is always dealt with outside of court. It is done through consensus, agreements and, in our area, healing circles. In other words, the courts are not needed anymore.
In fact, I think the agency I am speaking of created a change in legislation in Ontario in regard to child welfare by setting out its own family-oriented approach that has now been adopted by the Ontario government.
On the question of should this legislation be implemented, it has to be. There is not anything right now. I have only been involved since 2002. I have seen women — and I say particularly women — who have suffered tremendously as a result of having nowhere to go. It is not frivolous to consider that people have assets; even if they only have a few assets, they deserve to know that there is a process to deal with them.
I would like to also make a comment about two of the questions I heard, because I heard the previous speakers. One of the questions had to do with emergency orders, that they only go 90 days and then you can get another 90-day period.
When I looked at clause 17(6) of the bill, as a lawyer, this is how I would deal with this. Clause 17(6) says that if the court directs that a matter be reheard, the order continues in effect and is not stayed unless the court orders otherwise. I would always ask for it to be reheard; that is one place I would go to just keep the order in place.
The second one is clause 20, where it says the court may, on application by a spouse or common-law partner, order that the applicant be granted exclusive occupation of the family home, subject to any conditions and for the period that the court specifies. In my estimation, the court can specify that it continues until further order of the court. Therefore, I see there is a solution to emergency orders.
I think the last question had to do with one from Senator Nancy Ruth, which was why there was not a great uprising. I can say, as a person who has been involved in the women's movement since it was called that, which is many years ago, you may ask why that is. I think it has to do with a number of factors.
One is the hierarchy of needs. People are spending their time trying to have housing. When I met my husband on- reserve, there were 27 people living in his house. Housing, food, caring for your children, water — these are all essentials that we all take for granted. Women in particular have to make sure those things are there for their children.
In our region, the communities have been devastated by the impact of residential schools. This has resulted in a lot of community and family dysfunction. The result is a lot of violence in communities, sexual and physical abuse; these are the results that people are dealing with.
We do need to have legislation to assist those we can, and eventually, hopefully, the legislation will assist more people in the communities to stay there. However, these other issues of resources and the communities' needs are overwhelming for everyone who lives there.
That is all I have to say.
Charles Weasel Head, Chief, Blood Tribe/Kainai: Thank you very much for the invitation to submit our response from the Blood Tribe/Kainai. I am Chief Charles Weasel Head. I am the chief for the Blood Tribe. I have here with me Ms. Dorothy First Rider, our researcher for the tribe. She also co-authored the book entitled The True Spirit and Original Intent of Treaty 7.
I would like to give you a quick description and profile of the Blood Tribe. Our population is about 12,000 and we have roughly 1,200 homes that are situated on the reserve. The flip side to that is that we have a backlog of about 500 to 600 homes that we need to house everyone. In the last 10 years, we have been ravaged with floods, and the situation has gotten out of hand in our community.
I will proceed. We will do the presentation in tandem. I will do the first half and Ms. First Rider will do the second half.
Prior to European settlements, the Blood Tribe along with their confederates — the Peigan, both North and South, and the Blackfoot — had exclusive possession and enjoyment of their traditional territory for thousands of years. This territory is the vast area bound on the east by the sand hills now known as Saskatchewan, on the south by the Yellowstone River in Montana, on the west by the Continental Divide of the Rocky Mountains, and on the north by the North Saskatchewan River.
The Blood Tribe has always existed as a nation. From time immemorial, we have controlled our lands and our religious, political, economic and cultural destinies. Our Aboriginal and treaty rights are not ours to negotiate or limit. They are for our future generations and must be kept intact for them.
By Treaty 7, we agreed to share our land with the British Crown, except for specifically reserved areas kept for our exclusive use. The treaty created a unique, sui generis relationship between our people and the Crown, modifying only one aspect of our rights — the right to exclusive use of the land.
The Blood Tribe currently operates under a system of customary land allocations, or occupation with no land use bylaws, regulations or comprehensive written policies in force. The rights of individual members to occupy lands have become a very complex matter, and this has contributed to ongoing concerns and land disputes, which matrimonial property issues are only a part of. Housing issues are intricately tied to land use concerns and then, by extension, to on- reserve matrimonial real property issues.
The Blood Tribe instituted a land dispute resolution policy in 2007 to address the growing number of disputes over the allocation of use and occupancy of land on the Blood reserve. A land dispute resolution panel and an appeal tribunal have been instituted and have been working toward resolving the backlog of land disputes on the Blood reserve.
The Blood Tribe has also instituted a peacemaking program to provide opportunities for individual community members to resolve conflicts with the law, wrongdoings and disputes arising from various aspects of community life, using peacemaking processes that are grounded in Kainai values and traditions. Kainai peacemaking seeks to restore harmony in the family and community and provide opportunities for resolving matters through conflict mediation and resolution, and thereby achieving reconciliation.
The substance of Bill S-2 has been brought before this government numerous times — first as Bill C-47 in 2008, and then as Bill C-8 in 2009. It was reintroduced into the Senate as Bill S-4 and then died on the Order Paper when Parliament was dissolved on March 26, 2011. It has now been introduced again as Bill S-2.
It is acknowledged that there are some changes from Bill S-4 to Bill S-2. Perhaps the most significant is the removal of the verification process, including the role of the verification officer proposed in Bill S-4.
A second significant change was made with respect to lowering the ratification threshold. Bill S-2 has lowered the ratification threshold to a single majority, with a set participation in the vote of at least 25 per cent of eligible voters.
A third significant change made was an inclusion of a transition period. This transition period, it is argued, has been incorporated to allow First Nations that are well advanced in developing their own laws with the time to enact them before the provisional federal rules take effect.
Although Bill S-2 has some improvements and has changed in some significant ways, there are substantive problems. They include the fact that it would infringe upon the Blood Tribe's treaty rights to exclusive possession of its reserve lands, in addition to the breach of the right to self-government.
There are so many other programs and services that we provide. On December 14, the Blood Tribe will do a ratification vote with its members for sole jurisdiction over our child welfare system. By way of statistics, the Blood Tribe, as a ratio, has the lowest children in care in our province in Alberta.
With that, I will turn it over to Ms. First Rider for the second half of the submission. Thank you very much.
Dorothy First Rider, Senior Researcher, Blood Tribe/Kainai: The purpose of the prior consultations and various studies that led up to Bill C-47, Bill C-8, Bill S-4 and now Bill S-2 were to assist in the protection of First Nations women's rights through addressing the issue of on-reserve matrimonial real property.
However, it would appear that the views of those persons consulted have largely been ignored when it did not suit the federal government's purposes to take them seriously.
The legislative summary of Bill S-2 notes that, like reaction to its predecessors, reaction to Bill S-2 has been negative. Individuals and organizations who have commented on the new bill have emphasized that, for the most part, the key issues that have been raised with respect to previous incarnations of the bill have not been addressed.
If the legislation proceeds in its current form, it is a breach of the federal government's duty to accommodate, and the whole consultation process has been a virtual sham.
Again, the issue of matrimonial property rights cannot be viewed in a vacuum. The current attempts to resolve the issue by taking into consideration other areas of law, including wills and intestacy rules, dower rights, best interests of children, and family violence, have only complicated matter further.
The approval of Bill S-2 will only increase the current issues facing the Blood Tribe council and administration on a daily basis.
The federal government is attempting to address what it deems to be a human rights concern, without dealing with the more significant human rights violation of inadequate housing for First Nations people in Canada.
The passing of Bill S-2, or a form of this proposed legislation, will only exacerbate this concern. Merely setting out rules as to which party would have access to the family home on reserve does not address the systematic problem of safe homes for Blood Tribe members on the Blood reserve or anywhere. The Blood Tribe maintains that Canada has a general, fiduciary obligation that consists of protection and non-interference. The duty of protection entails protection for Blood Tribe people, their lands and their resources. While the duty of non-interference allows for the development and implementation of governing structures, that does not include the imposition of legislation that directly affects the Blood Tribe, without their full consultation, accommodation and consent.
The proposed legislation fails to recognize, in any real and meaningful way, the Aboriginal and treaty rights of Blood Tribe members. It also appears that no consideration has been given to the development of process that will allow for the protection of these rights. Only members are entitled to the use and benefit of Blood reserve lands. Bill S-2 potentially creates long-term rights or interests in Blood reserve lands for non-members, which breaches the treaty rights of the Blood Tribe and Blood Tribe members. The Blood reserve has been set apart for the use and benefit of the Blood Tribe and its members.
The enactment of the proposed Bill S-2 would create further significant deficits in Blood Tribe resources. The poor and inadequate housing on reserves for over 11,500 people — close to 12,000 — is one of the biggest contributors to the concerns that arise from on-reserve matrimonial real property disputes. Canada has been continually informed of these shortfalls and its responsibilities with respect to the serious situations that have been created. It has failed to address this crisis in any meaningful way. Simply addressing one of the symptoms of the lack of adequate housing, through initiatives dealing with on reserve matrimonial real property matters, will not address, and may in fact compound, the systematic problem.
In summary, the Blood Tribe submits that in the face of the opposition to Bill S-2 by the very people most affected by it, the federal government is being negligent in continuing to table the various renditions of this legislation.
The proposed legislation has the potential to breach the Aboriginal and treaty rights of the Blood Tribe and Blood Tribe members. This goes against the fundamental relationship between the Blood Tribe and Canada.
For matrimonial real property rights to be meaningful, the Government of Canada must ensure there is adequate, safe and accessible housing on the Blood reserve. Until this occurs, the imposition of Bill S-2 is meaningless and only exacerbates an already difficult and volatile situation. Thank you.
The Chair: Thank you very much. Ms. MacKinnon, I would like you to look at clause 16 of the act. This weekend, I think I memorized clauses 16 and 17. I understand what you were saying about exclusive jurisdiction and that you would go under that provision, rather than under the emergency protection order. Being lawyers, you and I will both understand, without being too technical, that the emergency protection order is an ex parte order. We know that sometimes, especially in family violence situations, the spouse would not want to give notice before.
That is the challenge, and that is why the 90 days, in my opinion is not enough. I would like you to comment on the emergency protection order being an ex parte order. I do not know about Ontario, but I can say that in B.C. it is very difficult to get exclusive jurisdiction on a joint property if there is no violence. There are many issues. It is more difficult to get an exclusive occupation order than it is to get an ex parte order.
Ms. MacKinnon: An ex parte order has a vulnerability to it, which is that the person applying for it is the only person that the court will hear from. The reason that those orders only last for 90 days, though they can be renewed, in this case, for another 90 days, is that there is an unfairness to an ex parte order in not allowing the other party to have something to say about it.
I do not know what is expected to happen in the 90-day periods, but certainly —
The Chair: Without sounding rude, may I stop you? As we know with ex parte orders, once you get the order you have to give notice to the other side. The other side has the right to set aside this order if the facts are not correct.
It is unfair for the time that you apply, but after that the other side has notice.
Ms. MacKinnon: Yes, and I think that is why they are time-limited.
The Chair: How would you feel if the limit were set at 90 days, and the second 90 days would be given at the discretion of the judge?
Ms. MacKinnon: Do I think that the 180 days is enough?
The Chair: Yes, do you think it is enough?
Ms. MacKinnon: I am concerned about it because, at least in the area that we live in, even access to courts is a very slow process — making an application for legal aid, trying to get a lawyer, trying to find a court, et cetera. We do not always have judges going to communities.
I think there should be something that would allow that period to be extended if it is reasonable in the circumstances. That is a discretion that you would give.
The Chair: To the judge, as exists in the exclusive jurisdiction?
Ms. MacKinnon: Yes.
The Chair: While I am asking you questions, and since you are very much working with people on reserves, what challenges do people face when they are trying to get to court? What are access-to-justice issues?
Ms. MacKinnon: The difficulties are almost overwhelming. In our area, in a community, there is usually not even anyone who can swear an affidavit. There are no court workers in the communities that I deal with who are able to assist anyone to do an application or anything like that. In some communities, judges only attend there once every six months, in order to give orders.
I have seen this improving. In the criminal law area, at least, they started to use video conferencing so that things can be done by video. Now, at least, in our northern communities we do have video capability, but it is not used effectively in family law, nor really considered, in that area, when it should be.
In terms of access to lawyers, we live in an area probably the size of France. There might be, optimistically, maybe 15 or 20 lawyers who do any family law. Out of that, probably only half would take legal aid.
It is distances, time, and the resources of the individuals in the community. People just do not have money to ever privately retain a lawyer.
It is very difficult, but without a law, there is no other recourse. If you have a law, at least you can go to court on it if you can get those other things in place, but without those resources, then it is just a law on paper.
Senator Brazeau: I have just one question, for Chief Weasel Head and Ms. First Rider. You mentioned in your presentation that it is your belief that, if passed — and correct me if I am wrong — Bill S-2 would go against Aboriginal and treaty rights.
Can you expand on what you mean by that? I cannot see how that will happen. As a matter of fact, I think it is the opposite, because, if passed, Bill S-2 is the enabler for First Nations communities to take the bull by the horns to exercise their jurisdiction on developing a code that would suit their needs in terms of matrimonial real property.
Ms. First Rider: To go back into history, the reserves were created as the result of the Blood Tribe entering into treaty with the British Crown. As a result of the treaty, lands were set aside for the exclusive use of Blood Tribe members. The home is attached to the land. We cannot separate those two. We have an occupancy policy on the reserve, and it is those occupants who have the exclusive use of that particular area where that home is situated. They are not all located in one central area. We have approximately 544 square miles of land that constitute the Blood reserve right now. The homes are scattered mostly all over and we have approximately three main communities within the reserve itself.
When you are talking about a home, you cannot fragment that home from the land. If there is a marriage breakdown and you have, for example, a non-tribal member who has been allocated that land by virtue of the new legislation, what you need also to deal with is the land, so then you are fragmenting that particular area of land that is attached to the home, whether it is one or two acres or five acres. What we will run into is basically a checkerboard system where the land is also alienated from the home. It is a much more complex matter, I think, than the federal government has anticipated.
With jurisdiction with enabling legislation and with legislation that is being introduced such as Bill S-2, what is happening is the federal government is relieving itself of its fiduciary obligations. We need to deal with addressing adequate homes, equitable homes for the reserve members, before we begin to allocate those kinds of homes to non- tribal members that will further aggravate the situation we are currently in.
Senator Brazeau: I respectfully disagree with that position, but if you are taking the position that this indeed will go against Aboriginal and treaty rights, then what will the Blood Tribe do if and when this bill gets passed? Will you consider suing the government for passing this legislation that would affect your members?
Ms. First Rider: We are hoping that the federal government will respect the current laws that we have been exercising on the reserve. The Blood Tribe, as Chief Weasel Head has indicated in his presentation, has now developed our peacekeeping system on the reserves using our customary laws and our traditions. Those are based on the policy and on customary practice of kimapipitsinni. That is a holistic approach to an issue that deals with sympathy, kindness and caring.
As we all know, historically a law is not a law; it is usually based on customary practices until it gets to the point where people forget the roots of that particular practice and then it has to be codified. That is what the federal government is attempting to do, to codify a practice that we have been exercising for a long time on the Blood Tribe reserve on how to deal with our own internal issues.
Mr. Weasel Head: If I can supplement that, we are hoping it does not go that far with regard to having to go into litigation and those types of things. We have to understand here that we have our own traditions and our own cultures. How we understand family and our living quarters is a lot different from the mainstream. We aspire to extended families.
For many years, we have always had shortages in our homes and we have relied on extended family to provide shelter for everyone, if the immediate family members do not have access to it. We continue to use that tradition and custom that Ms. First Rider mentioned with regard to helping each other out, mainly because of the resources and the lack of shelter and homes being provided in our community. Yes, definitely we still have, in my view and my people's view, overall jurisdiction with regard to homes and lands allocated for our members of the Blood Tribe.
Our presentation is based on an understanding that definitely we are in a position to hopefully be a part of this legislation, if it is ultimately going to be established, that we are part and parcel from a community perspective, from a cultural and traditional perspective, that we have input into this legislation. If we do not do that and it goes against every fabric of what we believe in our tradition and culture, it will make things worse for us. Definitely we see that there needs to be some kind of policy or legislation for matrimonial real property. We do not have so much of an issue on that, but two things come up: that Blood Tribe has an onus and jurisdiction of their own lands and allocation of those; second, we still see the advantage that we should still be a part and parcel of this legislation that will be established.
Senator Brazeau: That sparks some additional questions. It is great to hear that you have your own customs and traditions with respect to lands that fall on your territory, but are you doing anything currently, as we speak, with respect to the division of property in marriage breakdown?
Ms. First Rider: Yes, we do. Currently, as I indicated earlier, we have a policy in place that will allow a woman, whether she is a member or a non-member, to reside in the family home until the children are of age. There are more complex issues to deal with right now. Going back to your earlier question, for example, if a non-member is allocated use of the matrimonial home and then she enters into a relationship with a non-member, then that will further aggravate the issue, because then you will have two non-members residing on federal reserve land. How will we deal with those? We try to operate on the basis of kimapipitsinni and always look at the care of the children first and who has guardianship of the children. These are laws and policies that the tribe has been utilizing for the past 30 years, I believe, because prior to that point it was not much of a problem.
Senator Brazeau: Would you be able to submit a copy of that policy to the clerk? I certainly would be interested in seeing it and seeing what you have developed in terms of that policy. Unless I am mistaken, any First Nations can develop their own policy, but where the problem lies is in implementation, because under the Indian Act, the minister cannot recognize such policies. That is one of the major thrusts for the development of this legislation, so that the minister can now recognize those codes of First Nations communities that already have codes or will be in the process of developing them. If you could provide that policy, I would appreciate it.
Ms. First Rider: The chief mentioned it in his earlier comments. It is the land dispute resolution policy that was developed in 2007, and I am sure his office will be able to provide a copy.
Senator Lovelace Nicholas: My question was already answered.
The Chair: Thank you very much for being here today. It has been a long day. We appreciate your making yourselves available on short notice.
We will now move to clause-by-clause consideration.
I am also the critic for this bill, and so I have asked if Senator Brazeau would kindly chair the clause-by-clause portion of this meeting. I see he is busy so, before he comes back, does anyone else have any amendments? I have a number of amendments. Does anyone else have any?
Senator Nancy Ruth: Let us see what you have, chair.
The Chair: The clerk will circulate the amendments that I have. I have one amendment that has not been written. It is an amendment that came up today.
I will ask Senator Brazeau to take the chair.
Senator Patrick Brazeau (Deputy Chair) in the chair.
The Deputy Chair: Is it agreed that we group the clauses together?
Senator Day: In what manner?
Daniel Charbonneau, Clerk of the Committee: The amendments I have received to date deal with clauses 16, 17 and 56. The way to proceed, if we group clauses, would be to deal with the title, preamble and clause 1, have it stood, then deal with clauses 2 to 6, deal with clause 17, 18, and then proceed to group clauses 19 to 55 and deal with 56. That is how we would proceed.
Senator Nancy Ruth: I do not have any fancy recommendations like this, but I thought Ms. Eberts' comment to Senator Hubley's question that the minister's statement should be specifically set in on the document was a good one. This was around the powers of First Nations, clause 7. I thought it was a great suggestion. The minister said it. Let us give him the credit.
The Deputy Chair: To makes things less complicated, how about if we go clause by clause? Agreed?
Is it agreed that the committee move to clause-by-clause consideration 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?
Hon. Senators: Agreed.
The Deputy Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 2 carry?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 3 carry?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 4 carry?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 5 carry?
Some Hon. Senators: Agreed.
Senator Nancy Ruth: Would that be a good place to put the minister's statement on clause 5, for greater certainty? I do not have exact wording, and I do not know exactly what the minister said.
Senator Nolin: Why not do it at third reading or, if there is a report, it could be done then if you do not have the exact wording now.
Senator Nancy Ruth: As another suggestion, perhaps some research could be done overnight or so and the steering committee could look at the wording and see about including it. Then we could leave it up to you to pass clause 5 on greater certainty before it goes to the house. Would that work?
Senator Nolin: I would like to see the text of what you are proposing.
Senator Jaffer: I do not think the steering committee has the power to do that.
Senator Nancy Ruth: Maybe we can have a quick meeting over lunch tomorrow.
Senator Jaffer: I suggest we do it at third reading.
Senator Nolin: You can introduce an amendment at third reading. Nothing prevents you from doing that.
Senator Nancy Ruth: I know that. It is about time and place.
Senator Day: The alternative would be to postpone clause-by-clause until you have had time to look at that. Which would you like to do?
Senator Jaffer: We will have to do it at third reading. We do not have a meeting on December 5.
Senator Ataullahjan: Do we not have the authority to call a meeting to do clause-by-clause consideration on December 5?
Senator Jaffer: We do have the authority, but we said we would report tomorrow.
We can do that at third reading.
Senator Nancy Ruth: We will do that at third reading. The library will get the text for Senator Hubley and me, right? This has to move fast and I want a chance to consult with my side.
The Deputy Chair: Senator Nancy Ruth, you are open to doing this at third reading?
Senator Nancy Ruth: Yes.
The Deputy Chair: Thank you.
Shall 6 carry?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 7 carry?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 8 carry?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 9 carry?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 10 carry?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 11 carry?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 12 carry?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 13 carry?
Hon. Senators: Agreed.
The Deputy Chair: It as agreed. Shall clause 14 carry?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 15 carry?
Hon. Senators: Agreed.
The Deputy Chair: It is agreed. Shall clause 16 carry?
Senator Jaffer: I have a number of amendments that I would like to make to this clause. One of them came up earlier today, so I apologize to my colleagues that I do not have this in writing.
On page 13 in clause 16(9) we have the definition of family violence. Ms. Turpel-Lafond suggested that we have this definition for the whole act rather than just this section. She also suggested that we add as (g) "a child's direct or indirect exposure to family violence."
I suggest that we amend this by putting the definition of family violence into the interpretation section.
Senator Nolin: Is it possible to hear someone from the department on whether they have contemplated this possibility?
Senator Jaffer: Certainly.
Andrew Ouchterlony, Legal Counsel, Legal Services Unit, Aboriginal Affairs and Northern Development Canada: Good evening. Could you repeat the question for me, please?
Senator Nolin: Have you heard the amendment proposed by Senator Jaffer?
Mr. Ouchterlony: Yes. I am not sure, because it is an amendment for which there is no motion. There was a description of it, but I want to be ensure I understand it exactly.
Senator Jaffer: I did move the motion that I wanted to make this amendment.
Senator Nancy Ruth: My understanding is that in clause 16(1)(a) there is no definition of family violence. Ms. Turpel- Lafond said that that is left to the discretion of the judge and that it would be better to have it uniform within the bill. Since family violence is defined on page 13, clause 16(9), is there any reason we cannot repeat it and include it here so that is uniform throughout the bill?
Senator Jaffer: I am suggesting that that whole thing should be removed and put under the interpretation section so that the whole act has the same definition of family violence.
The Deputy Chair: Before you answer, could you identify yourself and give us your title and department?
Mr. Ouchterlony: I am Andrew Ouchterlony. I am counsel in the Legal Services Unit at the Department of Aboriginal Affairs and Northern Development. It is part of the Department of Justice but in the Legal Services Unit. I am filling in for Karl Jacques, who has appeared on behalf of the Department of Justice before this committee.
Senator Nancy Ruth: Are there not two things, one being to have the definition in definitions and common to the whole act, and the other to include it in 16(1)(a) so that it is repeated?
Senator Nolin: We just adopted the clause.
Senator Nancy Ruth: I know, but there is nothing like spelling things out again when you are going section by section.
Mr. Ouchterlony: I will speak to the definition of family violence. The way that this has been drafted there are two definitions. The first is the one you are referring to in clause 16(9), which is a narrower definition than the one contained in clause 22.
Senator Nancy Ruth: Allow us to read them, please.
Senator Jaffer: It is on page 21.
Mr. Ouchterlony: To explain what I was saying, the definition in clause 16(9) is more prescriptive; there are express examples, whereas the provision in clause 22 with respect to family violence allows for a judge to hear submissions and matters that go beyond the enumerated examples in clause 16(9). A judge could hear, for example, emotional or psychological elements of violence. The notion of family violence in clause 22 is what would apply for exclusive occupation order applications and things, whereas, because clause 16 has to do with emergencies, it is more prescriptive.
Senator Jaffer: I accept your explanation. Would you consider adding what Ms. Turpel-Lafond suggested as (g), "a child's direct or indirect exposure to family violence"?
Mr. Ouchterlony: For clarification, are you asking if it could be added?
Senator Jaffer: Could it be added as a (g), as the child advocate from British Columbia suggested? The way I understood her — and all my colleagues were here so they can correct me — was she suggested that the British Columbia definition on family violence has a clause that says a child's direct or indirect exposure to family violence. I am asking my colleagues if they would consider adding an amendment (g) to this.
Mr. Ouchterlony: I am just trying to understand what you would like to hear from me. Is there is a question about whether or not such a paragraph could be added by the committee?
Senator Day: It is to know whether it would be legally consistent or not consistent.
Senator Nancy Ruth: You are saying there are two kinds.
The problem she was trying to solve was that it would be left to too much discretion on the part of the judge and it would be better to have it defined. Am I correct in understanding that that was the problem she was trying to solve?
Senator Jaffer: She was saying British Columbia had this.
Senator Nancy Ruth: Under the new family law.
Mr. Ouchterlony: I will point out that in clause 16(9) the types of family violence described there could involve the child. The beginning of clause 16(9) says any child in the charge of either spouse or common-law partner, if the violence is against that child, those types of family violence are already considered, against children.
If, however, in that amendment you are hoping to include the indirect exposure of a child to family violence — more of the psychological and emotional type — that would be perhaps more appropriately included in the clause 22 provision on family violence that we were looking at a moment ago.
Senator Jaffer: Clause 22 is just a general statement, while here it sets out the different kinds. It is my understanding that is why Ms. Turpel-Lafond was saying you should add it here.
Senator Nancy Ruth: Clause 16(9)(c) talks about reckless intention to act that causes reasonable fear.
Senator Day: That (c) is damage to property.
The Chair: What I understood the advocate to say is that that would become consistent with what already exists in British Columbia.
Senator Nolin: Could I make a suggestion? The fact is that we do not have anything in writing and will have to reopen clause 2 to achieve the purpose of having a definition that will apply. Why do not we adopt the section as it is now and then move third reading amendment, if there is one by you?
Senator Jaffer: We are not opening definition, too.
Senator Nolin: I thought that was the intent of our colleague Senator Nancy Ruth.
Senator Jaffer: I accepted the justice department's explanation on that. I want to add a (g) to this.
Mr. Ouchterlony: The way I understand it is that there may be some difficulty in adding (g) to clause 16(9) because we are dealing with emergency protection orders. We are dealing with imminent harm, and the types of things considered by what you are proposing to add are not. They are more of the emotional and psychological, the indirect harm.
Senator Jaffer: It says a child's direct exposure to family violence. That is direct.
Mr. Ouchterlony: That is why I was referring to the mention of the child already contained in clause 16(9). It already covers the direct violence to children in the home or in the charge of either the spouse or the common-law partner. The direct violence is covered by the wording already contained in clause 16(9).
The indirect elements are not in line with the nature of its being an emergency measure. The requirement that there be types of imminent harm is contained in clause 16(9) already.
Senator Jaffer: I do not accept it, but I guess I am overruled on that. Let us move on.
The Deputy Chair: Shall clause 16 carry?
Hon. Senators: Agreed.
The Deputy Chair: Agreed. Shall clause 17 carry?
Senator Jaffer: I have an amendment on clause 17 that is in front of you in writing. On page 15, by replacing lines three and four, it should read: "may extend the duration of the order beyond the period of."
I have the spoken about this a number of times. I believe that 90 days is not enough and it should be left to the judge's discretion.
Senator Nancy Ruth: We are striking.
Senator Jaffer: Yes. I asked the department and the department was not able to help me, so I asked Mr. Audcent from our legal department to help me with these amendments.
I am asking that the 90 days be removed, that "section 16, but may extend the duration of the order beyond the period of 90 days."
That is the amendment I am moving.
Senator Nancy Ruth: Could you repeat the whole sentence the way you want it?
Senator Jaffer: "On a rehearing, the court may, by order, confirm, vary or revoke the order made under section 16, but may extend the duration of the order beyond the period of 90 days."
Instead of saying "may only," it says, "but say may extend the duration of the order beyond the period of 90 days."
Senator Nolin: Can we hear from the department please? Have you heard the proposal?
Senator Jaffer: They know about the proposal because I asked them.
Senator Nolin: Can we hear from the department?
Line Paré, Director General, External Relations and Gender Issues Branch, Aboriginal Affairs and Northern Development Canada: From the department, and then Mr. Ouchterlony can add, with respect to the period of 90 days, the department looked across Canada with respect to the provinces and territories who have the same kind of legislation with respect to emergency protection orders.
When you look at it there is up to 90 days, and then a superior court judge can extend the emergency protection order for another 90 days. The rationale is that these are really emergency protection orders.
Senator Jaffer: Sorry, I do not mean to stop you, but I brought this up before. Which province does that? The Library of Parliament looked and could not find one province that does what you say.
Ms. Paré: In Nova Scotia there is a provincial Domestic Violence Intervention Act dated 2003, and the justice of the peace emergency protection order is valid for a period not exceeding 30 days. You have Prince Edward Island where duration of order shall not exceed 90 days unless otherwise ordered by judge.
Senator Jaffer: The earlier one you have is from the justice of the peace. This is from the Superior Court.
Ms. Paré: Yes, but the emergency protection order that is in the legislation — and Mr. Ouchterlony can add — the 90 days can be provided by a justice of the peace. If you need to have an extension of the 90 days, then it would have to be heard by a Superior Court judge.
Senator Jaffer: The Superior Court judge can decide on the amount. What I am asking here is, yes, accept the first 90 days, but instead of having the second 90 days and making it just a 180-day order, the second one would be at the discretion of the judge.
I respectfully suggest that there is no province in the country, from the research that the Library of Parliament has done, that sets out the position that you have. There is not a province, from what I understand, that has it the way you say it. We are trying to create the same rights for women across the country, and yet we are giving Aboriginal women less rights than all women across the country have.
I have no problem with you getting the 90 days the first time. However, the second time, I am saying leave it to the discretion of the judge. No one has been able to show me there is any province in this country that has what you are suggesting.
Ms. Paré: When the department looked into the analysis about the 90 days and the extension, we also took into consideration the First Nations context.
What you do is that you do 90 days, which is three months, and then the Superior Court judge can hear a demand and then extend for another 90 days, which is six months. These are for emergency protection orders, in the situation of family violence.
Senator Jaffer: I will say this only once because I think I am beating a dead horse, but why cannot it be like it is across everywhere in the country, which is 90 days first and then at the discretion of the judge? Why do you want to make it different for Aboriginal women?
You are saying that you want the same law for all Aboriginal women, and then you tie their hands with 180 days. We, as a country, do not give them access to justice. We do not provide them with resources, and yet we say they can only have six months. Why? Why cannot it be according to the discretion of the judge?
Mr. Ouchterlony: I might be able to add a little bit more analysis to this issue.
The way you will see it worded in the other legislation, as you are saying, is 90 days unless otherwise ordered by the judge. The motion, as you have proposed it, would not indicate 90 days further unless the judge ordered otherwise. It would be open-ended for the judge.
Senator Jaffer: As it is in every jurisdiction.
Mr. Ouchterlony: No, the other jurisdictions say 90 days unless otherwise ordered.
All I am saying is that in this nature of proceeding, an emergency protection proceeding, these are not meant to replace exclusive occupation orders. Therefore, there is a problem in leaving it open-ended like that. I am not an expert in family law, but there is case law that states that it cannot be open-ended this way; there needs to be a limit and a minimal impairment that is appropriate, given the emergency nature of the proceedings.
Senator Jaffer: Colleagues, I have done a lot of research on this. I have asked the department's help because I think this is a very serious issue. When the minister was here, he got it. He said, yes, that is something we should look at. For my colleagues who were here to hear the minister, he got it, and I wish he was here.
If I can turn to page 11, it says that on an ex parte order, it is up to a period of 90 days. I accept that. However, it is saying that on a rehearing, the department still says 90 days and that is it.
What I am saying is that on a rehearing, it should be at the discretion of the judge, not 90 days. I have told the department this before; this is not news to them. There is not one jurisdiction in this country that ties the hands of women to 180 days.
Colleagues, if we are serious about wanting to really give rights to Aboriginal women, with everything we have heard about how difficult it is to get access to justice, why are we saying they can only get an emergency order for six months when any woman in the country can get it for longer? That is my thing.
Here, the bill clearly says 90 days. I have no issue with that; but on a rehearing, if the woman goes back to the judge, then it should be at the discretion of the judge.
Senator Ataullahjan: If we do that for an indefinite term, it would deny the other party the right to be heard.
Senator Jaffer: I have done this for 35 years. It is in front of a judge. Judges are serious about when they extend this order. They will not do that lightly.
Senator Nancy Ruth: If I remember what Ms. Turpel-Lafond said, she said 90 days to one year — just put a limit on it. It was not endless, but she did think 90 days was short.
Senator Jaffer: There has not been one witness, including the minister, who thought 90 days was okay. Even the minister said that we have to look at this again. He was very fair. If we are serious, we should not tie Aboriginal women's hands to 180 days.
Senator Greene: I have sympathy for that statement. However, it seems to me this is such a powerful order because the other party cannot come back.
Senator Jaffer: They can. Senator Greene, I do this every day. I did this order last Friday. I went to court and got an ex parte order. The judge said you get the ex parte order; in three days, the husband can set it aside. The judges do not give ex parte orders easily. In three days, the husband could have come back and set it aside.
This is a very serious order. The reason it goes ex parte is that the wife does not want the husband to know she has gone to court. We know the issue around it; I do not need to educate anyone in this room.
This is a very serious order. Sorry, I am passionate because it is really bothering me. I have done so much work on this and I asked the department to help me. This is a non-partisan committee; we try to work in a non-partisan way.
We are doing to Aboriginal women what we do not do to anyone across the country. I have challenged the department to bring me one jurisdiction where we do this. There is not one. I could be wrong, but they have not brought me one.
Senator Greene: Is there one?
[Translation]
Senator Nolin: Is there a provincial jurisdiction?
Ms. Paré: That is exactly the same?
Senator Nolin: What Senator Jaffer says is pretty convincing.
If there is a province or a territory where a right like the one you mentioned exists, do let us know.
[English]
Senator Nancy Ruth: If you look at Ms. Turpel-Lafond's presentation, her second recommendation is based on British Columbia family law at the bottom.
[Translation]
Ms. Paré: There is not a province or a territory in Canada that has exactly the same regulations. You won't find that.
Senator Nolin: But your argument and my colleagues are contradictory. We think that, when judges exercise their discretion, they do so in compliance with the law of all the individuals standing before them. That includes the rights of someone who is absent — especially when someone is absent.
My colleague tells us that we should allow the judge complete latitude and not limit him in time. You tell us that, since it is urgent, the period should be limited. Furthermore, this does not happen at the provincial level.
So look into your information and tell us what you have discovered.
[English]
Ms. Paré: Senator Jaffer has already alluded to the information that we provided. I can go through the list of provinces and territories about what they have. In Nova Scotia, it is the justice of the peace. The order is valid for a period not exceeding 30 days and can be extended up to another 30 days from the expiration date of the original order. In Prince Edward Island, the duration of the order shall not exceed 90 days, unless otherwise ordered by a judge. In Newfoundland and Labrador, the duration of an emergency protection order shall not exceed 90 days; and an emergency protection order may not be renewed or extended.
Senator Jaffer: That is unless the judge orders.
Ms. Paré: An emergency order protection may not be renewed or extended. It is in section 7(4) of the act.
Senator Nolin: That is in Newfoundland and Labrador. Can you tell us about Quebec and Ontario?
[Translation]
Ms. Paré: Quebec does not have one regarding family violence.
[English]
Senator Jaffer: None in Quebec, Ontario and none in British Columbia.
Senator Nancy Ruth: "None" means they can be indefinitely extended.
Ms. Paré: What we wrote was about the list related to clause 16(1) and the ex parte application and 90 days. Senator Jaffer is now talking about clause 17(8).
Senator Jaffer: Always. Not now, but always.
Ms. Paré: Always. With respect to clause 17(8), we have in the proposed legislation an extended duration of the order for up to 90 days beyond the period of 90 days referred to in subclause 16(1). Senator Jaffer is proposing not to put that 90 days but that it be up to the discretion of the judge. That can be done. The judge could make a decision that it be for an extension of one month or two months or three months.
I will repeat the analysis and why it was in the proposed legislation; and I know that family violence is very serious. There were also policy and legislative analyses. The policy analysis was about the balance of collective versus individual rights in the case of an emergency protection order. On a rehearing, a court may order 90 days, and it could be up to the judge; or it could be 90; or it could be at the discretion of the judge.
Senator Greene: It seems to me that the provinces are all over the map on this.
Senator Jaffer: Not really — it is like that just in Ontario, British Columbia and the Western provinces.
Senator Greene: There are a lot of exceptions, though.
Senator Jaffer: Newfoundland and Labrador has 90 days. The information I have from Library of Parliament is that it was then at the discretion of the judge. I have no issue with the first 90 days; that is fair.
It would be in a rare circumstance that the violence is so serious that the judge may consider an order. As the department said, the judge may consider only 30 days. Let us leave it to the discretion of the judge and not tie the hands of the judge. Sometimes it will be 90 days only because people will not always go for the rehearing. Let us not tie the hands of the judge in a serious case.
Senator Nancy Ruth: Ms. Turpel-Lafond, when quoting the British Columbia Family Law Act, says:
Unless the court provides otherwise, an order under this section expires one year after the date it is made.
In her view, she said that the British Columbia provision better reflects that some domestic situations require longer- term orders to ensure stability and to meet the needs of children and families. Why should First Nations people be treated any differently?
Her recommendation was that it be up to one year rather than at the discretion of the judge. Rather than just 90 days, could the department live with a compromise of between 90 days and one year?
Senator Day: In the end it will be for us to decide.
Senator Nolin: It is not fair to put them in that position. They are telling us their position, and it is up to us to decide.
Senator Jaffer: I agree with you. I move the amendment, and Senator Lovelace Nicholas has seconded it.
The Deputy Chair: In amendment to the motion that clause 17 carry, the Honourable Senator Jaffer moves that Bill S-2 be amended in clause 17 on page 15 by replacing lines 3 and 4 with the following: "section 16, and may extend the duration of the order beyond the period of . . . "
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Deputy Chair: Honourable senators, we will proceed to a roll call. The clerk of the committee will call members' names beginning with the chair and then in alphabetical order. Senators should verbally indicate whether they vote for, against or abstain. The clerk will then announce the results of the vote. It is my duty as chair to declare whether the motion is carried or defeated.
Senator Brazeau: Against.
Senator Ataullahjan: Against.
Senator Day: For the amendment.
Senator Greene: Against.
Senator Hubley: For the amendment.
Senator Jaffer: For.
Senator Lovelace Nicholas: For.
Senator Nancy Ruth: For.
Senator Nolin: Against.
Mr. Charbonneau: "Yeas," five; "Nays," 4.
The Deputy Chair: The motion is carried. Shall clause 18 carry?
Senator Jaffer: I have an amendment to clause 18, on page 15, by replacing lines 23 and 24 to read: " . . . should revoke the order and extend the duration of the order beyond . . "
The Deputy Chair: We are coming back to clause 17. Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Senator Nolin: On division.
The Deputy Chair: Clause 17, as amended, is carried.
Senator Jaffer: On division.
Senator Nancy Ruth: We are at clause 18.
Senator Jaffer: Clause 18, lines 23 and 24.
Senator Nancy Ruth: Where is that?
Senator Jaffer: It is on page 15.
Senator Nancy Ruth: I know, but which number is it?
Senator Day: It is clause 18(2).
Senator Nancy Ruth: Thank you.
Senator Jaffer: It will read: ". . . revoke the order and extend the duration of the order beyond . . ."
It is again about the 90 days. I move that motion, and Senator Lovelace Nicholas is seconding it. We do not need a seconder.
The Deputy Chair: In amendment to the motion that clause 18 carry, the Honourable Senator Jaffer moves that Bill S-2 be amended, in clause 18 on page 15, by replacing lines 23 and 24 with the following: "revoke the order and may extend the duration of the order beyond."
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Deputy Chair: Once again, honourable senators, we will now be proceeding to a roll call. The clerk of the committee will call members' names, beginning with the chair and then going in alphabetical order. Senators should verbally indicate whether they vote for or against or abstain. The clerk will then announce the results of the vote and it is my duty as chair to declare whether the motion is carried or defeated.
Senator Brazeau: Against.
Senator Ataullahjan: Against.
Senator Day: For the amendment.
Senator Greene: Against.
Senator Hubley: For.
Senator Jaffer: For.
Senator Lovelace Nicholas: For.
Senator Nancy Ruth: For.
Senator Nolin: Against.
Mr. Charbonneau: "Yeas," 5; "nays," 4.
The Deputy Chair: The motion is carried.
Shall clause 17 carry, as amended?
[Translation]
Senator Nolin: On division.
The Deputy Chair: On division. Thank you.
[English]
Shall clause 19 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 20 carry?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 21 carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Shall clause 22 carry?
Hon. Senators: Agreed.
Senator Day: Mr. Chair, if there are no other amendments up to clause 56, is that the next one?
Senator Jaffer: Senator Day is saying that we can group it from 22 up to 55.
Senator Nancy Ruth: Can I just ask if anyone has any comments around clause 41? I am not sure I do.
Senator Day: It is a notice of application.
Senator Jaffer: I do not.
Senator Nancy Ruth: I do not think I do, either.
[Translation]
Senator Nolin: Once again, I would like to hear the comments from the department's representatives, please.
Senator Day: I do not understand what the amendment consists of.
Senator Nolin: Me neither.
Senator Day: You cannot ask for a reaction if we do not know what the amendment is.
Senator Nolin: I thought you were aware, that you were advised.
[English]
Have you informed the department that you want to do that?
Senator Nancy Ruth: Do what?
Senator Nolin: Amend clause 41.
Senator Nancy Ruth: No. I do not know that I want to amend it. I had written it down as something I wanted to look at.
Senator Nolin: They may have the answer to your question.
Senator Nancy Ruth: I do not think I have a question. I am not sure why I marked it up and wrote it down. I just wanted to buy time so I had time to read it.
The Deputy Chair: Let us proceed. Shall clause 23 carry?
Senator Jaffer: No, let us group them.
The Deputy Chair: Honourable senators, if we are going to group the clauses, is it agreeable that we group clauses 23 to 55?
Hon. Senators: Agreed.
The Deputy Chair: Agreed. Shall clauses 23 to 55 carry?
Hon. Senators: Agreed.
Senator Jaffer: On clause 56, you have the amendment in front of you.
The Deputy Chair: Shall clause 56 carry?
Senator Jaffer: No.
[Translation]
Senator Nolin: I would like to hear the department's representatives.
[English]
Senator Jaffer: Let me make the proposal first, and then you can hear from the department. It is my motion.
The reason I have said two years is, for those who heard the chief representing the AFN, she said up to three years; 36 months is what she said. Later on, when she was asked how long her band took to bring in this legislation, she said two years. We have heard from almost every other witness who has come in front of us that one year is not enough for the transitional period. If you remember, last time many of us fought hard to have a transitional period. I give a lot of credit to the minister. He listened to us. He brought in a transitional period. He brought in one year. What we have heard from our witnesses — and that is the purpose of this study — is that one year is not enough. We should have two years.
My bigger issue is that in the first study, Bill S-4, the minister was very articulate in talking about the centre of excellence. He spoke about how important the centre of excellence was to helping Aboriginal people set up the MRP system in their bands.
Unfortunately, this time he was not as articulate about it. When asked — and it is in the transcript — he said that he had not yet made an application to Treasury Board. He did not know what the budget of it would be and he did not know where it would be situated. There is a lot of work that needs to be done for the centre of excellence, which the minister had said in the previous bill would help Aboriginal people set up matrimonial property in the band.
I am saying that this is the time to give the department up to six months, or whatever it needs — I do not know — to set up the centre and then to help the Aboriginal bands set up the system in the reserves. From everything we have heard, two years is a better period than one year.
[Translation]
Ms. Paré: Concerning the 12-month transition period, if we look, for instance, at the First Nations, who come under the First Nations Land Management Act, called FNLMA, once a First Nation has developed its lands regime, the First Nation has 12 months to develop its regime concerning the division of matrimonial real property on reserves.
The 12-month period, for us, will enable First Nations — and you heard the group, for example, from the Blood tribe, who talked about policies they have put in place — First Nations who have worked for a while discussing their matrimonial regimes, this will enable them to finalize their law and vote on it.
It must be understood that, during this transition time, there will not be any legal protection on reserves. It must also be noted that, since 1986, the government, and the First Nations, have known that, where the division of matrimonial real property on reserves is concerned, there is a legal vacuum.
Since the early 2000s up to now, a large number of studies and reports have been done, including a senate committee study, and discussion sessions have been supported across the country. There was a national consultation in 2006-07, which enabled the First Nations, the organizations, to become more familiar with the issue and make their suggestions for a legal solution.
The minister got approval to introduce Bill S-2 with a 12-month transition period, which means that, for 12 months, there will be no legal protection and this will enable the First Nations to vote on their law, their on-reserve matrimonial regime, which means that temporary federal rules will not apply to the First Nations who will have voted on their law during the 12-month period.
Senator Jaffer mentioned the centre of excellence. Funding of the centre of excellence and the terms and conditions of its funding will be dealt with in a submission to Treasury Board. At Treasury Board, the minister cannot submit it until the act has been passed.
It is a matter of time. There will be terms and conditions to be approved. As we said in our submissions and in public information, this is a national centre that will be there to provide information to the communities, to Aboriginal leaders, so as to support the development of their on-reserve matrimonial regimes, while respecting their culture and their values.
There will also be an information campaign across the country so that the people in the communities are informed of the law, are familiar with it, become aware of it and are encouraged to work with their communities on the development and approval of their own law.
Of course, there will also be training for officers of the peace and teaching for judges who may hear the cases brought before them.
Senator Nolin: Thank you.
[English]
Senator Jaffer: I will remind members that the last time around, in Bill S-4, there was a very detailed budget and plan for the centre of excellence, and the minister was very, very clear on exactly what his vision was. I was sold on his vision. This time he was not. He was very clear this time in saying that — and the transcript is there for all of you to see — it takes time to go to Treasury Board.
I respect that it takes time to go to the Treasury Board, so let us give them two years to do the work.
[Translation]
Senator Brazeau: I would like to put all that into context, because I have an opinion about it, but also because I have a lot of experience with extensions of the applications of the law respecting Aboriginals.
This evening we heard the detailed and complete testimony of Teresa Edwards, who even mentioned that, during the repeal of section 67 of the Canadian Human Rights Act, it was the chiefs themselves who lobbied for this law not to be applied for a three-year extension.
The act applied to the Government of Canada for discrimination against Aboriginals but not to band councils. Ms. Edwards testified this evening that, with the extension, even after three years, Aboriginal women did not know that the law had changed or about the rights stemming from the repeal of section 67.
I do not know why in some cases we want an equal law for Aboriginals, while in others, we ask for an extension for it not to apply to them. It is a double standard. Having a double standard, depending on what we are talking about, does not do Aboriginals any favours.
[English]
In amendment to motion that clause 56 carry, the Honourable Senator Jaffer moves that Bill S-2 be amended in clause 56, on page 43, by replacing lines 35 and 36 with the following: "(2) Sections 12 to 52 come into force two years after the day on which section 7 comes."
Honourable senators, shall clause 56 carry? Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: No.
The Deputy Chair: We will now be proceeding to a roll call. The clerk of the committee will call members' names, beginning with the chair and going in alphabetical order. Senators should verbally indicate whether they vote for or against or abstain. The clerk will then announce the results of the vote, and it is my duty as chair to declare whether the motion is carried or defeated.
Senator Brazeau: Against.
Senator Ataullahjan: Against.
Senator Day: For.
Senator Greene: Against.
Senator Hubley: For.
Senator Jaffer: For.
Senator Lovelace Nicholas: For.
Senator Nancy Ruth: Against.
Senator Nolin: Against.
Mr. Charbonneau: "Yeas," four, "nays" five.
The Deputy Chair: I declare the clause 56 negatived. Shall clause 56 carry as amended?
Some Hon. Senators: No.
Senator Nancy Ruth: Carried as is.
Senator Day: We have not voted for that.
The Deputy Chair: Shall clause 56 carry?
Senator Day: On division.
The Deputy Chair: On division. Are there any new clauses?
Senator Day: Clause 1.
The Deputy Chair: Shall clause 1 carry?
Hon. Senators: Yes.
The Deputy Chair: Shall the preamble carry?
Senator Day: No. On division. I do not think there should be preamble in any of this legislation. On division.
The Deputy Chair: On division.
Shall the title carry?
Hon. Senators: Agreed.
The Deputy Chair: Carried. Is it agreed that this bill be adopted with amendment?
Senator Day: On division.
The Deputy Chair: On division.
At this point the committee may consider observations to be appended to the report. Any discussion on that?
Senator Jaffer: Yes. In steering, we had asked Marlisa Tiedemann, the researcher, to prepare observations, and the clerk has them in both languages.
The Deputy Chair: Before we discuss that, could we have a motion to go in camera to discuss observations?
Senator Jaffer: Thank you.
The Deputy Chair: So moved?
Hon. Senators: Agreed.
The Deputy Chair: Can we have a motion to allow the staff to remain?
Hon. Senators: Agreed.
The Deputy Chair: So moved.
We would ask anyone who is not a member of this committee to kindly leave the room.
(The committee continued in camera.)