Proceedings of the Standing Senate Committee on
Human Rights
Issue 5 - Evidence
OTTAWA, Wednesday, June 18, 2002
The Standing Senate Committee on Human Rights met this day at 9:05 a.m. to study the key legal issues affecting the subject of on-reserve matrimonial real property on the breakdown of a marriage or common law relationship and the policy context in which they are situated.
Senator Shirley Maheu (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, today we begin public hearings on the important issue of division of on-reserve matrimonial real property. In the coming months the committee will hear from witnesses from government and Aboriginal groups. The committee will examine the following four points: the interplay between provincial and federal laws in addressing the division of matrimonial property, both personal and real, on-reserve and, in particular, enforcement of court decisions; the practice of land allotment on-reserve, in particular with respect to custom land allotment in the case of marriage or common law relationships; the status of spouses and how real property is divided on the breakdown of the relationship; and possible solutions that would balance individual and community interests.
[Translation]
I would like to thank the Minister of Indian and Northern Affairs, the Honourable Robert Nault, for accepting our invitation and in particular, for displaying a keen interest in all matters affecting our First Nations. You have the floor, Minister.
[English]
The Honourable Robert D. Nault, P.C., M.P., Minister of Indian Affairs and Northern Development: Madam Chair and committee members, with me are Ms. Wendy Cornet and Ms. Sandra Ginnish who are involved in this important issue.
I thank this committee for undertaking a study of on-reserve matrimonial real property. I will make some opening comments and then I will enter into a dialogue with honourable senators. Our job as parliamentarians is to help to bring reasonable solutions to unreasonable problems, and that I hope that is what this committee is intending to do.
The issue of on-reserve matrimonial real property is a classic example of an unreasonable problem. The task ahead of us is to find reasonable and workable solutions that will serve the best interests of all those affected by this issue, in this case, an issue that affects virtually everyone that lives in a First Nations community.
At the heart of the problem is the fact that First Nations people who live on-reserve have fewer rights in respect of their matrimonial home when a marriage or common law relationship ends than people who live off-reserve.
The simple fact is that most of the legal rights and remedies found in Canadian law that relate to the matrimonial home are not available to people living in reserve communities. Moreover, the Indian Act is silent on the issue; and the provinces, which have jurisdiction over family law and property issues, have no authority to legislate in respect of lands that fall under federal jurisdiction. There is no law that applies to the division of on-reserve matrimonial real property, and the courts have no legal authority to determine how such property should be protected during a marriage or divided on the dissolution of a relationship.
In most provinces, each spouse has equal right to possession of the matrimonial home, regardless of whose name is on the deed or who contributed more to the finances of the home. In First Nation communities, where men are more likely to hold the land and homes under a certificate of possession, women have little access to the value of what is often the couple's most important asset.
This is especially problematic for First Nations families who have seen mothers, sisters, friends and neighbours face homelessness. In some cases these women have had to leave their communities and have fallen into despair. Indeed, they cannot apply for exclusive interim possession of the matrimonial home when there has been domestic violence, or when the woman has custody of the children. Moreover, neither the Minister of Indian Affairs, nor the band councils have the power to cancel a certificate of possession, or provide temporary occupancy of the matrimonial home.
I expect you feel as I do, that this is an unacceptable situation. Clearly, we can and must do better for First Nations women, their children, their communities, and for the sake of all Canadians who want no less than justice for all on this critical issue.
I will give you a quick rundown on what has been done to date. My department has undertaken a number of research projects to better understand contemporary on-reserve matrimonial real property issues. INAC commissioned Cornet Mediation and Consulting Services to prepare a discussion paper on key legal issues that affect on-reserve matrimonial real property and the policy context in which they are situated.
The document, called "Discussion Paper: Matrimonial Real Property On Reserve," was released at the Aboriginal policy research conference in November 2002. It does not suggest options or solutions, but offers useful background legal material for First Nations people and leadership.
My department has released a plain-language document entitled "After Marriage Breakdown: Information on the On-reserve Matrimonial Home." The aim of this document is to raise awareness of the issues among First Nations people. The plain language document responds to suggestions that there is a lack of community awareness of this issue. As a result, departmental officials have been using these documents to conduct information sessions across Canada in order to stimulate further discussion.
There are two other research projects currently being prepared for public distribution. They are in translation, which always seems to take a long time to complete. I cannot understand it. I wonder why it takes two months to translate a paper from English to French or vice versa.
There are two other documents as well: A study from British Columbia focuses on the socio-economic impact of family breakdown on First Nations women, and the other concerns tribunal, ombudsman and alternative dispute resolution mechanisms.
However, the mills of the gods are grinding far too slowly on this serious matter, which is why I commend this committee for undertaking this study, with what I hope will be a strong sense of urgency.
I know there are a great many complexities surrounding matrimonial real property rights. They are legal, jurisdictional, cultural, social and economic. However, the need to find reasonable and just solutions is pressing upon us as federal and provincial governments, and upon Aboriginal leadership within Canada.
Key among these is the need for intergovernmental cooperation, because while the obligation to act is clearly on the federal government, we must also consider possible implications for other levels of government. For example, with changes to on-reserve matrimonial real property, provinces will also have concerns regarding the potential for increased costs to their legal aid programs. It is also important to consider the diverse needs and limited resources of First Nations governments. Housing regimes, customs and land allocation vary from one First Nation to another, so in resolving this issue, our government must work toward solutions that have the flexibility to work effectively in a variety of circumstances.
The approach we follow must ensure that reserve lands remain true to their collective purpose of benefiting First Nations.
These are a few of the many important policy questions to be considered. While we must choose our course carefully, the need for action remains apparent.
Madam Chair, I would now like to turn to the question of the tasks ahead. Based on research conducted by my department to date, there are a number of topics that could benefit from further examination. I believe this committee is in an excellent position to explore some of these issues.
For example, a significant number of First Nations communities allot land according to customs. You may wish to consider calling witnesses and experts on this subject, to help determine whether common custom land allotment principles exist.
Examining current practices in dealing with matrimonial real property also would be useful. In this regard, a number of questions need to be explored.
For example, what is the role of the police force? What tools would they need to ensure that spousal rights are protected? What is the role of the band council?
Statistics show that common law relationships are on the rise throughout Canadian society. It would be useful to understand the frequency of common law relationships on reserve. It would also be useful to know whether real property is divided, and how, when there is a breakdown in this type of relationship.
It is my information, from the time spent representing the communities in my region, that there are a high percentage of common law relationships on First Nations. I dare say, and this is my own personal view, that it is higher than the Canadian average. So the question would be, how does that affect the real property divided and how would it work?
I look forward to hearing your recommendations for possible solutions, confident that your knowledge and experience, along with that of the witnesses you summon, will result in positive suggestions for action.
I know full well that the complexity of this issue calls for the balancing of the interests, both of individual persons and the community as a whole on reserve, as well as enforcement requirements. Certainly, there remains much territory to cover in a short period of time.
The fact also remains that while matrimonial and real property issues affect all people living in First Nations reserve communities, women and children are the most vulnerable. When that happens, the community as a whole is weakened. In fact, Canadian society, and our capacity for justice and fairness, is equally weakened.
In closing, I want to again thank you for seizing this opportunity to play a crucial role in advancing this cause and proposing solutions.
I want to wish you good luck, and look forward to meeting with you again as often as you want me. I will be here to participate in what I believe is a fundamental priority of this government and of our society and ministry.
In my letter to the committee, I had suggested a particular time line. I suspect that has changed. I would like to get some sense of when the committee thinks it can complete its work.
As you know, politics is a very difficult business to manage. I am attempting, of course, to position this major initiative in the context of leadership, in the context of government, and in the context of making sure it moves forward during the particular time of this government's mandate. I am very much interested in your sense of timing.
I am not looking for a quick solution. This is a complex file. I know the summer is coming. I think I want to be realistic, but at the same time I want to get my head around so I can be as helpful as I possibly can.
With that, I would conclude my prepared text and I am very interested, with Ms. Cornet and Ms. Ginnish, who have worked extremely hard on this file to get it to a point where my department and our government see this as a major priority. I turn it back to you.
The Chairman: Thank you, minister. There is not one person sitting here who is not deeply interested in this subject and who wants to see it advance as much as you do. However, the consultation process must take place. I have requested that we extend the limit for a report to be presented in the Senate no later than December 31. Perhaps the committee could consider interim reports if there is one subject that we have covered, or that they feel they have covered. We can keep you posted on what is going on.
Do Mrs. Ginnish or Ms. Cornet have anything they want to add?
Ms. Sandra Ginnish, Director General, Treaties, Research, International and Gender Equality Branch, Department of Indian Affairs and Northern Development: I will provide an detailed update on the research that has been done to date. I would like to share some essential information that we have extracted from that research. Finally, I will review some areas related to this issue that require further exploration.
The whole process related to our concern around matrimonial real property began back in 2000. At that point, the minister appointed a special representative on the protection of First Nation women's rights. This process, while not as successful as we might have hoped, was very useful in that it pointed to areas where further research was required. Most notably, it gave a voice to Aboriginal women who participated in the process.
The report that was issued as a result of the special representative process spoke to many of the needs of First Nations women, including the need for capacity building and for information sharing.
As a follow-up to that process we conducted research in three key areas. First, we undertook an extensive legal overview of the on-reserve matrimonial real property issue. The work that Ms. Cornet did contributed to the discussion paper that we have given to you.
Second, we have undertaken studies on the socio-economic impact of the breakdown of on-reserve relationships and its effect on women and children. We have two studies that we are working on; one relates to women in B.C., and the other is a study of women in Quebec.
As the minister said, the B.C. study is in translation, and we should be able to provide it to you around the end of July. The one involving women in Quebec will probably not be ready until the end of September.
Third, we are looking at the alternative dispute resolutions study that looks at the possibility of using ADR on this issue.
We began our research with two focus group discussions that were held last year. The focus groups repeated the urgent need to address this issue, particularly in the context of emergency situations of family violence. The focus groups also discussed the need for more information in plain language, which is why we prepared the plain language document.
We currently do not have an indication of the number of on-reserve families that are affected by divorce or relationship breakdown, but we do know there is a need for information on their rights, and for information on on- reserve matrimonial property at the community level.
One of the other pieces of research that we are looking at is an overview of our departmental on-reserve social housing policy. We will look at this issue in terms of matrimonial real property and try to determine whether there are any policy mechanisms available to us in terms of social housing.
We are also conducting research that relates to a U.S. study that compares land mechanism schemes between American reservations. Over the summer, the department will also be look into the issues of enforcement of court orders and domestic violence issues. As these reports are finalized, we will make sure they are translated and provided to you as quickly as possible.
We have spent the last nine months raising the awareness of this issue. Presentations and workshops have been conducted at various conferences, including the Aboriginal Women's Leadership Conference and the Treaty 6, 7 and 8 Women's Gathering. Presentations have also been made to First Nation communities, First Nation women's groups and law schools.
Select government officials, both within and outside of DIAND have participated in our efforts. We have tried to do discuss this issue at the academic, legal, community and local levels.
Our research has demonstrated the complexity of this issue. It also points to other areas where more information is required before decisions as to workable solutions can be taken.
We have learned that matrimonial real property touches upon all aspects of community life. We have learned that how the department conducts its business, including intergovernmental relations has a profound effect on the on- reserve communities. We have realized that matrimonial real property cannot be addressed in a vacuum. It is intricately linked to other social and legal issues such as custom land allotment. It is also linked to domestic violence, to family support and to child custody. However, most fundamentally, the matrimonial real property issue is closely linked to the management of on-reserve land and to the entitlement of individuals to occupy or possess that land.
The current state of law under the Indian Act does not take into account the interests of both spouses or the interests of any children in the matrimonial home, nor does it address the matrimonial real property implications of reserves using the custom allotment system to which the minister has referred.
Another important consideration is the rights of those people who live in band-owned housing or in social housing. That issue is under review to see what policy mechanisms are available to the department as it relates to social housing.
Another concern is the situation of non-member spouses and families with individuals who have mixed status. These are individuals who are perhaps not band members, perhaps not registered Indians, but who have relationships with band members and registered on-reserve Indians.
The minister also spoke to the resolution of questions relating to enforcement. There will be concern around programs and services critical to making enforcement effective.
Identifying options for substantive laws to address any of these issues is only one-half of the problem, while ensuring that mechanisms, programs, services and institutions are in place to enforce the promise of the substantive law is the other half of the issue.
One of the most difficult policy considerations to factor into any legislative proposal is how to address the reality of families composed of spouses and other family members with different rights regarding Indian status. The different rights attached to both status and membership has a direct impact on the remedies available to spouses and to the enforcement of those remedies. The protection of women and children, and the reality of families of mixed status and membership, will have to be addressed by any legal reform that is undertaken, whether First Nation or federal in nature.
Before we begin to talk about solutions, we must understand that there is a need to develop long-term options, and that it will take time to engage communities and ensure that the technical analysis is complete. In the meantime, we will continue to undertake the research that we have begun. We will, as soon as it is available, provide it to the committee to assist you in the study that you will be undertaking.
Ms. Wendy Cornet, Special Advisor, Department of Indian Affairs and Northern Development: As you have heard, federal law, apart from the First Nations Land Management Act, does not address the subject of on-reserve matrimonial property.
As a result of the 1986 decisions of the Supreme Court of Canada in the Derrickson and Paul cases, we know that provincial laws cannot be applied to reserve lands in any way that would change the property interests of individual band members on-reserve.
[Translation]
We also recognize that provincial legislation respecting matrimonial assets cannot alter interests held on reserve lands.
[English]
First Nations women's organizations have been involved in litigation since 1999 claiming that this lack of protection is a violation of their equality rights. The nub of the problem is a split in the jurisdiction over matrimonial on-reserve property. There is a partial application of provincial and territorial matrimonial and property laws on most reserves in Canada, a partial application of legal regimes that were initially intended to be comprehensive in their application to both personal and real property of spouses. This means that provincial and territorial laws governing the rights and obligations of a spouse in regard to matrimonial property applies only to personal property such as cash, cars or pensions, but these laws cannot alter property interests in a family home. Upon marriage breakdown a spouse cannot apply for interim exclusive possession of an on-reserve family home located, a legal remedy that is otherwise available in every province and territory off-reserve. The policy challenge is how best to take account of First Nation cultural interests and self-government rights while also taking account of some areas where provincial and territorial law show a significant amount of diversity.
The report that was written by Ms. Lender and myself emphasized the common elements within the provincial and territorial laws in this area, and also important areas of diversity. This is where some of the key challenges lie. Obviously, we know there is a gap. There is a need for some form of law-making activity to take place, but how do you take account of some of the diverse policy choices that are being made across the country? For example, you see diversity in the treatment of common-law partners and same-sex couples in different provinces and territories. There is also diversity in the extent to which matrimonial property laws of provinces and territories address wills and estate issues. Some include wills and estate issues in their matrimonial and property laws; some do not.
This leads to the question: Can a comprehensive and coherent legal regime be established on-reserve that meets equality rights requirements through the joint application of federal, provincial and First Nations laws? If so, what might that look like? If not, how should jurisdictional questions be addressed?
Minister Nault and Ms. Ginnish have referred to many of the unique policy issues that occur in this area, questions such as custom allotments.
This raises the question of how to ensure that matrimonial property involving custom allotments, for example, is reached by a new legal regime. Further, how are we to address the issues of non-member spouses on the reserve on which they reside?
Finally, the unique legal character of First Nation on-reserve property interests, both collective and individual, will be a challenge in ensuring a comprehensive matrimonial property system is ultimately in place.
Senator Jaffer: I commend the minister for taking this initiative and for asking us to work on this important subject.
I carefully read that document, minister. I must admit to you, that when I finished reading it I felt like the document addressed the rights that Aboriginals do not have more than the rights that they do have.
Is this document printed in other Aboriginal languages, or is it just an English document?
Mr. Nault: I do not think we have translated the document into Aboriginal languages. It certainly can be done, but I do not think we have done that, have we Ms. Ginnish?
Ms. Ginnish: No, we have not.
Senator Jaffer: The most nagging issue is the issue of residency. You have spoken about matrimonial property, but from what I have read it appears that women have difficulties with residency. It often becomes a moot point when you cannot stay on the reserve. Housing is another issue. I would like you to address the issue of residency, because I think this issue goes hand in hand with the housing issue.
Another important issue is the protection of women and children. We all know that often the protection that women and children need is not provided for them on the reserve and they must go elsewhere for those services. You mentioned that the police are often unable to assist these people.
The big issue for me is that if the woman cannot stay on the reserve, how will she be able to enforce her rights?
Mr. Nault: When you talk about residency, are you talking about whether she owns a home or whether it is considered to be band-owned housing?
Senator Jaffer: If a woman comes to the reserve from another reserve, I understand that she loses her rights on the reserve she left. She comes to the new reserve, and then if she is out of the house, sometimes, she loses her rights on the new reserve of her marriage; she does not have residency rights. The residency, matrimonial and restraining rights are all connected in this study.
Mr. Nault: I come from Northern Ontario. If an Aboriginal woman marries into another community, what can and does occur is a transfer of membership. That is one solution. Then they become a band member of the new band and have residency.
There are diverse ways of dealing with this in each community across the country. In some cases, I understand, they do not get residency and it is not as easy to transfer and/or become a band member. There are some complexities there that we need to look at and reviewed. However, it is possible to transfer your membership from one band to another and to become a member of that band. Many people in my region do so.
In regard to violence against women and children, there is obviously a requirement to have protection of those women and children through family resource centres and there are a number of them. There are not enough and we have many requests for more. That is a policy and a programming area that we, as a department, do deliver. Women can leave their home and seek protection in those family resource centres, or, in most cases, I admit, they go to an off- reserve family resource centre where they are protected from family violence. That is the way we deal with the issue. We cannot get the orders allowing the women to stay in her home, so that is the way we have evolved the system in order to protect her from violence.
There are some of these family resource centres on the reserves. I have two in my own riding so I am familiar with them. That, again, is difficult because of the whole issue of enforcement and protection of this family resource centre, and the police force or lack of and how it is best approached, especially in isolated communities about which I am very familiar. When you talk about the protection of women and children from violence, this is how we manage it through the present programs.
The residency issue is very complex matter, and I cannot tell you for sure how it works right across the country, except that there is the obligation and the ability for an individual to transfer. If you happen to be non-native and plan to marry into a different community that is a little more complicated situation. That is one of the issues we have to look at more closely.
One of the stories I hear most often is about people who are not part of the band, who end up in a divorce, separation or marriage breakdown and, in essence, are unfortunately expected or sometimes forced to leave. Those unfortunate situations and others will be the focus of our work here.
Ms. Cornet: There are some law-making powers have rest with First Nation band councils in respect of residency rights, and rights of spouses and children residing with members. However, whether you are a member of the First Nation in question, a person who has status under the Indian Act as an Indian but as a member of other First Nation, or a non-Aboriginal person married to a First Nation member, the courts do not have the power to say that the woman has a legal right to stay in the home with the children and the spouse while the man has to move out until the issue has been sorted out.
That is the top-of-mind issue. There is no legal remedy to assist spouses who cannot agree to amicable terms. The primary function of the courts is to make decisions for people when they cannot reach an agreement between themselves.
Normally, in off-reserve situations, the court would have to make a difficult choice. If both parties are seeking possession of the house, one person must be chosen. However, in this context courts have to power, other than abiding by what the Indian Act provides in terms of who has the certificate of possession. Who has the certificate of possession, if there is one, is the last word on the subject.
Mr. Nault: Madam Chair, are all honourable senators familiar with the certificate of possession?
I represent 51 First Nations and we do not have certificates of possession. However, I understand that about 50 per cent of the communities across the country do. It seems to me it is mostly in the West. When I went further west it became more obvious.
We urge you to look at how the division of land for First Nation citizens is dealt with. Ms. Cornet has spoken about custom. Certificates of possession were developed under the Indian Act to create some individual ownership, and so that is the process that exists today. In many places, like mine, however, they do not exist at all. Most of the housing is either CMHC housing or band-owned. Essentially, you are there at the pleasure of the band council and it is not really yours at all.
There are different systems in Ontario and other provinces, but in my region the homes are band-owned in most cases, and therefore the whole issue of matrimonial property becomes a difficult and different matter.
I urge you to focus some attention on solutions.
Senator Jaffer: Do I understand correctly that in order to own a home a person has to apply to the minister to get the certificate of possession?
Mr. Nault: I sign off, I suppose, but I have very little input.
Senator Jaffer: It is embarrassing for all Canadians when most Canadian women have rights of occupancy to their matrimonial home and women on-reserve do not. What are some of the immediate issues that we might examine?
If the couple is legally married could you insist that the certificate be put in both of their names?
Ms. Ginnish: In terms of the study that we had conducted in B.C., we found that of the 30 women who were involved in that study 75 per cent had a joint certificate of possession with their husband, but notwithstanding that, 75 per cent of them actually ended up leaving their reserve community and their husband remained in the marital home. While that certainly helps, in terms of women having at least a little more say, it would appear from practice that, at least in the study that we undertook in B.C., the majority of women end up leaving the community.
Senator Beaudoin: I will not continue on this line of questioning. I think we should focus on the equality of men and women on-reserves and off-reserves. We have some jurisprudence, but we also have the division of powers between Ottawa and the provinces. When the federal authority does not legislate for the Aboriginal nations the provincial law applies. I feel we should start the debate with that.
In Quebec there is the civil code. In other provinces there is the common law. This may apply, to a certain extent, in the reserves and off the reserves. Marriage and divorce are federal concerns. That is not a problem. It is clear-cut. We may do what we want with marriage and divorce. However, for the property of the spouses, it is a different story. The property may come under provincial laws, except to the extent that the Parliament of Canada is legislating for the Aboriginal people.
We will have many questions in addition to that, but I think, for example, we should take into account the 1983 amendment for equality of men and women on the reserves. That is one thing that should be considered. I am surprised that no one referred to that, but in my opinion it is very important.
If the mandate that we have is the on-reserve matrimonial real property and the marriage or the common law relationship, we have to deal with the problem of the separation of powers. Whether the study will take six months or three months, I do not know; however, we have to do the job properly.
Many books have been written on marriage and divorce. What we should have, as soon as possible, is a study referring to books and cases on our subject, and then we may take the subjects one by one.
I am very concerned with equality. We had equality of men and women in 1982, but we did not have it for the Aboriginals. Prime Minister Trudeau was in favour of the same regime of equality for women on the reserves and off the reserve. Perhaps we should pay some attention to his opinion.
Federal law covers marriage and divorce, and we should have federal experts here to give us more information concerning the law in those two areas.
As far as property and donations are concerned, it may be another story. That is a commentary, not a question.
However, if there is a question, it is this: What should we do with the question of on-reserve and off-reserve property? The second question is: What should we do when the marriage collapses? That is the point. Everything else is very interesting, but probably secondary. However, the collapse itself is fundamental to the issue.
Senator Jaffer: You are talking about provincial property, but Derrickson and Paul have stated that the provincial courts do not have jurisdiction. That is the reason for this study.
Senator Beaudoin: We need to consider the jurisprudence completely. However, if we do not legislate, the provincial law would apply. We should occupy the field, and we should legislate more adequately on the on-reserve and off- reserve property. Depending where you are in this country, you may have laws that are not necessarily the same from one province to another or from the civil system to the common system. Derrickson is to the effect that you if you occupy the field, it is the federal law that will apply. We know that even without Derrickson, but if there is no adequate legislation, then we have to go back to the law of the provinces.
Mr. Nault: Madam Chair, if I could, we will touch on that a little bit. To a great extent, we agree with the senator, but on some areas we disagree. Ms. Cornet will talk specifically about section 91.24 to give an example of why with that is not so cut and clear. It may be from the jurisdiction and the area of federal-provincial law, but when you add the component of Aboriginal governments and the role of responsibility, it changes everything.
Senator Beaudoin: It may.
Mr. Nault: Let me give you an example of the complexity of this file. On the whole issue of general application where there is no federal law on the books. Take for example, environmental law. On the environmental side it is strongly suggested that if there is no federal legislation, then provincial legislation should apply. In every jurisdiction where I have worked, what I get back from the province is, "We are not prepared to enforce that on your federal jurisdiction. You should go and make the law if you want the whole issue of environmental regulations adhered to because we do not intent to do that." I am running across that now with the issue of trying to develop an on-reserve economy.
As an example, we entered into an agreement with Bowater to build a sawmill on the Fort William First Nation in Thunder Bay. The biggest problem we had with the Department of Justice was who would deal with the environmental liability. We could not find anyone to manage an enforcement structure for something of that magnitude. There is either an enforcement gap or a jurisdictional vacuum, depending on how you look at it.
On the whole area of matrimonial property rights and the issue of responsibility for section 91.24 for Aboriginal people and their communities, we confront that almost daily.
Ms. Cornet will give you a few examples on wills and estates. It is not as simple as you make it sound. I wish it were; otherwise, I would not be sitting here.
Senator Beaudoin: I do not say it is simple. It is complex, but I say that section 91.24 is preponderant. It is paramount. The federal power is paramount, but we have to occupy the field. If we do not do it, then section 92.13, property and civil rights, is there. As far as section 35 is concerned, that is the treaty rights, fundamental collective rights, everything is federal in that field. I have no problem with that.
We have to take into account that since it is property, and since property and civil rights are provincial, we may have to pay some attention to the laws of the provinces. That is all I will say.
Ms. Cornet: If you look at the jurisdictional powers of the provinces, on the one hand, and the federal government on the other, it is rather interesting to compare, as the Supreme Court did in the Canard case that dealt with wills and estates. It described section 91.24 as at least including the property and civil rights of Indians.
Property and civil rights is a power that provinces use to make comprehensive laws respecting off-reserve matrimonial property, wills, estates and property rights.
I was going to play the role of third party neutral here, but I suspect you are finding common ground on this. Section 91.24 does provide some room for the federal government to occupy subject areas that are otherwise provincial.
Senator Beaudoin: We did not use them very well, in my opinion, but that is another matter. It is there, and I agree that it is preponderant.
Ms. Cornet: Through the Indian Act the federal Parliament has occupied the areas of on-reserve wills and estates, areas that would otherwise be dealt with by the province.
The entire issue comes down to which government controls the jurisdiction. We have to grapple with that and rationalize which is the better way to go. In some areas the Indian Act has jurisdiction over wills and estates, but not matrimonial property. In some instances the provinces have jurisdiction over personal property, and the issue of real property is problematic because it falls between both jurisdictions. Neither government is doing anything in terms of law-making activity in that area. The problem is complex, but there are likely solutions.
Senator Beaudoin: I am not complaining that we do not have enough power; we have tremendous power. It is a good thing, but sometimes we do not use it.
Mr. Nault: Madam Chair, that is precisely the issue that this committee will have to decide upon; whether we should use that power.
As you know, I am involved in a series of debates on a number of other pieces of legislation. Whether it is Bill C-7, respecting First Nations governance, or Bill C-19, respecting the fiscal institutions, all touch upon section 91.24 areas. It is being debated as to whether in fact the Government of Canada, on behalf of Aboriginal people, and in cooperation and partnership with them, should use that power, or whether it should rely on what people argue is section 35. You will hear about this from your witnesses. My point to you is that there are many different kinds of solutions, and you will have to find your way through all those different paths to the final conclusion.
We already have one area where we are focusing some attention on matrimonial and real property, and that is the First Nations Land Management Act. The First Nations Land Management Act, which is a mechanism of section 91.24, allows First Nations, after they develop their land codes, to include the matrimonial property right segment within the land code. Only four codes have been developed since that legislation passed in 1999, so we have opened up the First Nations Land Management Act to a rotating 30 every two years. We have approximately 100 First Nations interested in entering into the First Nations Land Management Act. It requires that the matrimonial property rights portion be included. That is one solution. However, at the rate we are going, it will take many years, and there may be gaps within that structure. There is one area where we tried to develop some policy to improve our abilities to deal with the individual rights in a more traditional and collective way with the First Nations involved. You may want to have those communities come to talk about some of their codes and their solutions.
I want to bring to your attention the debate I have been having for the last four years on the lack of interest of the Parliament of Canada for using its powers to improve the lives of First Nations people. At this point, we have been reluctant to do anything. As you know, I have chosen not to accept that argument, because we allow the courts to continue to rule.
I am concerned about the comment Mrs. Cornet made earlier on matrimonial property rights and the Indian Act itself. The rights of Aboriginal women are in court. I am not at all shy to tell you that I am convinced that the courts will not be kind with us and the Indian Act vis-à-vis the rights of Aboriginal women.
I do not want the courts to make decisions for parliamentarians. That is not the way to build a relationship with Aboriginal people. I think you need to have a round-table discussion with First Nations people.
I am looking for committee recommendations that I will use to consult with Aboriginal people in partnership on how to develop solutions to these jurisdictional gaps.
The law is obvious to some, but the fact that the government has not implemented that law is also obvious. I just give you that as the general sense, senator, of why I agree with you in the lion's share of what you are saying, because it is important for us to get our heads around those kinds of conflicting debates. Why, for example are we embroiled in such a difficult debate on Bill C-7?
Senator Beaudoin: We should legislate, and the court will intervene less often. It is our duty to legislate.
Senator Chalifoux: First, I thank each and every one of you for coming here today. The voices of Aboriginal women's have been crying in the wind since the 1960s. I was part of those voices. We have been talking; we have made reports; we have made recommendations. Our voices have fallen on deaf ears right from the 1960s straight through to today. The one nice thing about it, though, is that today we have educated Aboriginal women, and their voices are becoming stronger and stronger.
Will any changes be addressed in Bill C-7? There is nothing in the Indian Act that relates to the protection of women and children on the reserves. The band council has total control over membership. That is another big issue that we must look at. I have anecdotal evidence even in my own family where this has been a very serious issue for women and children.
I was the sponsor of the First Nations Land Management Act, and I made sure that there was something there to address the matrimonial property issue. There was, but it is not strong enough. It is not a "shall;" it is a "may." We have to look at that when we are reviewing the land management act. How do we determine the effect that the First Nations Land Management Act has on this very serious issue?
One of my previous researchers was from Enoch. She belonged to the Kehewin reserve. When she married into the Enoch reserve, she was taken off the membership for Kehewin and put on Enoch. When her husband died, she had four children. She lost all the land and the house. She and her children were left homeless. The land was given to another man on the reserve. Those types of things have to be addressed.
We talked about customs. Years and years ago, it was a matriarchal society. Under the Indian Act from the 1860s, it slowly changed, and women lost all their rights. This is a very serious issue. The protection of the family must be paramount.
You talked about homes for victims of family violence. We tried to get those homes in the west and in the north.
The men knew where the homes were. They broke into the homes and beat everyone up including the supervisors. Sometimes there were tragic deaths. The policing part of this problem must be addressed.
How do we protect the women and children from this violence? That is another big issue that we have to examine.
Most important, I would like your response to Bill C-7, and how we can include all of this in Bill C-7. Further, do you think we should include it in Bill C-7?
Mr. Nault: Senator, one of my objectives is to have the Senate study this issue. However, I will tell you how Bill C-7 was developed.
Bill C-7 was developed based on the comments I made to Senator Beaudoin a few minutes ago about the significant powers under section 91.24 that have not been used by parliament in our modern times. For reasons I cannot explain, or because of the lack of movement in that area, we find First Nations communities living in poverty within one of the most successful nations on earth. I have been taking a significant amount of heat because I think it is time for parliament to take its legitimate role in this problem area.
Bill C-7 was developed with enabling legislation which means that parliament set the parameters of the legislatives structure and turns that structure over to the First Nation governments to develop the codes or the laws within it. Bill C-7 is intended to be the fundamental structure into which you can fit matrimonial property rights as a code.
Let me tell you where I see this going. I hope that you will consider First Nations land management as one option. Under the First Nations Land Management Act, matrimonial rights codes are developing. They are doing exactly what we are proposing to do under Bill C-7. It is opting in.
Under Bill C-7, we ask First Nations to develop an electoral code using their own traditions and customs while remembering that there are certain principles that we have to respect, principles which include the rights of Aboriginal women and the rights of the individuals in the community.
We also asked for a financial administration code. No one has ever been able to tell me what custom and tradition makes a financial administration code different in my culture than in yours. I have never been able to figure that out. Keeping a transparency and accounting of the books is no different in your culture or mine, as far as I can tell. We have to be accountable. First Nations leaders have to be accountable, as I do as a member of parliament and as a minister of the Crown.
We have also asked for an admission code. Administration is really about a public service. If you want good governments, you need a good public service. I would like to see a professional public service developed on First Nations in order to see these governments come alive. That is all done through enabling. We have sent an amendment into the House asking for a governance institute. The governance institute, which would be composed of Aboriginal people, would help the communities develop those codes.
It will obviously be necessary to use First Nation language management codes and other codes based on custom and tradition dealing with matrimonial property rights, wills, estates and property to develop those unique types of structures. It will fit within Bill C-7 as an enabling code. That is one option, if Bill C-7 passes both our House and the Senate. It is certainly my objective to exercise the moral and legal obligations of parliament to improve the lives of First Nations citizens.
At the same time, I want to make it very clear that we will continue to negotiate self-government because that is, in the end, the direction in which we are heading. However, we need to build capacity. We need to deal with the laws and the institutions that are not there at this time, to make self-government that is much easier to reach, that much quicker to negotiate, and that much more comfortable for First Nations citizens, because in the end they have to vote on this issue.
I can tell you that in most referendums we are losing more votes than we are winning. The reason for that is that community members are distrustful and concerned about the direction that the leadership is taking in their negotiations with the Crown.
To answer your question, developing codes that will meet the needs of the communities is one option. They will do that on their own under certain parameters. As Mrs. Cornet and Ms. Ginnish have said, it has to fit with other governments.
I believe in Aboriginal treaty rights, but I also believe that means a third order of government within our constitutional family. It has to fit within the constitutional family and the other governments because we live together side by side. We interact every day. Non-natives marry native people. Aboriginal people are on-reserve and off-reserve. You cannot have a separate world completely because we live together. That is the objective of the vision that is being articulated by our government.
We are not falling asleep at the switch. Education is one of the most important issues with which we will be dealing this year. It has already started.
Senator Beaudoin would really enjoy this one. Education is a provincial jurisdiction. Federally, we have responsibility for education of Aboriginal people on-reserve. There is no jurisdictional structure, legislatively speaking, that makes First Nations education an equal partner with the provinces.
If you look at the statistics of the failure of young people in education, you will realize that we are in a serious dilemma if this continues for another generation. I am moving on the education field with a number of people, including Minister Owen and others, with the objective of developing some sort of structure, legislatively or otherwise, to make sure that Aboriginal children will not end up quitting and/or failing. We need these children to be successful for our economy to be successful and for our country to be complete.
These are the kinds of issues that will confront Parliament. You are dealing with one of the most sensitive of all the issues.
I will make one last point, senator, because I want you to know that I share your view. We need to deal with membership. I have chosen not to tackle membership right off the bat even though Aboriginal women's groups have asked me to do so because it is the most divisive, sensitive and difficult issue for parliamentarians and Aboriginal leadership. Membership is a definition of who you are. That is very, very hard to manage from a ministerial and governmental point of view.
It also has some financial implications. Central agencies get extremely nervous when I talk about membership because they think that means more Indian people.
We need to get away from the archaic Indian Act and the fact we have chosen to decide who is a member and who is not a member. That should be left to the community.
We will have to trust community and its leadership to deal with membership and to deal with matrimonial property rights. We cannot put in laws that say that you shall do this and that because if you do, then it removes the respect and the ability to understand the inherent right to self-government.
We have to put the legislative tools in place, though, and then allow people to grow from there. My preference is that Bill C-7 enables people to develop, under certain principles that all Canadians, Native and non-Native, accept.
Senator Joyal: I am pleased to hear the minister explain his intention. In my opinion, we should keep that in mind as we approach these issues because it is not as clear-cut as one might think.
We have sections 91 and 92 and now we will propose legislation that would clear the deck and that would be it. However, it is a totally different game for Aboriginal people. As the minister said, Canadians have to realize that Aboriginal people live in a different society; that is the basis of the issue and not sections 91 and 92. Aboriginal people live in a different society and the court clearly stated that in 2001, when Mr. Justice Sharpe dealt with the issues of the Metis people.
What is the purpose of section 35 of the Constitution? It is much more than treaty rights. Two fundamental purposes for the constitutional protection of Aboriginal rights have been identified. The first purpose is the recognition and respect for the prior occupation of the land by distinctive Aboriginal societies.
I repeat, "distinctive Aboriginal societies," which means that before we came, they were organized, they were governing themselves, they were living in communities, and they had their own set of rules. Before one single European settler put his or her foot on this land of Canada, Aboriginals were functioning in their society; they were organized and living happily and solving their own problems.
The second fundamental underlying purpose of section 35 of the Constitution in respect of Aboriginal rights, as expressed by Justice Lamer in Van der Peet, is that Aboriginals live on the land in a distinctive society with their own practices, traditions and cultures, and that is acknowledged by and reconciled with the sovereignty of the Crown.
When there is a problem such as we now face in respect of the inequality and violence that Aboriginal women are subjected to, it affects the Canadian concept of the equality of men and women. We hurt when we hear about those issues. The government cannot simply say that it will resolve the problem for Aboriginal women. Rather, we must bring in an act of Parliament. This is no longer the case since 1982.
Of course, we could open discussions with Aboriginal representatives; we could consider the applicable provisions of the Charter people; and we could consider court decisions on equality cases. Beyond that, Aboriginals live in a distinctive society with traditions, culture and their own system of government.
Quebec has the Civil Code so marital assets are divided in half. As soon as one is married, the assets are shared equally. In common law, it might be just a little different. We should not say that reserves in Quebec should fall under the Civil Code and that reserves in the other provinces and territories should fall under the Common Law. We may consider those two systems to find and understand approaches that might apply for Aboriginals but we cannot impose either of those systems on the Aboriginal people.
This is a highly complex issue. Senator Chalifoux, Minister Nault, Ms. Ginnish and Ms. Cornet said that the traditions of Aboriginal people differ from tribe to tribe; there are many different Aboriginal societies. In some communities, the land belongs to all community members because the land is considered common property and not the property of any one individual. Prior to the enactment of the Indian Act, most Aboriginal people lived in a matriarchal society in which the women made the decisions, took care of the children and took responsibility for the survival of the tribes. The Indian Act changed that because its philosophy is not based on the full recognition of the different structure of ownership. Now, we are trying to solve this problem in a one-solution-fits-all way but, one solution will not fit for all Aboriginals. The only thing that fits all is Constitutional right of equality; and we have accepted that since 1983.
Beyond that, as you said, Mr. Minister, we have to make proposals to try to establish the framework within which we will solve this problem. I sincerely believe that the issue is complex because we have to take into account the full respect of those different Aboriginal societies. We will begin with the fundamental point of recognition of the different traditions, structures and sets of family values. Then, we will be able to reflect that in our approach.
I am certain that Aboriginal people do not want violence to go unpunished. Violence against women is not an Aboriginal value. There should be a way to establish a minimum number of parameters of human dignity. Developing and managing a system to solve the issue of property division; of care for children; of interim family supports, such as those available under Common Law and the Civil Code, has to be discussed and individually framed to meet the needs of the different Aboriginal societies.
This issue is of precisely the same nature as all the other issues that you want to address. If we could develop an approach that would respect Aboriginal culture and society and, at the same time, share common respect for the individuals, then we will have done something good. The effort you have spent is certainly within that context and I have absolutely no doubt about your intention and the intention of your people to try to respect the two purposive objectives of section 35. We must always take those sections into account through this process, and that is one of our difficulties. It would be much easier if we had only to consider the Indian Act or the 19th century way. In either of those instances, we would simply move in, wield our maximum power and set a different framework. We have tried to do it that way with the issue of the education problem when we sent all Aboriginal children to residential schools. We all know the problems that exist today because of that approach. We tried to solve the problem, in our own way, by using the might of the Indian Act. Today, we have an immense human tragedy.
We must try to understand all the different implications of land ownership, traditions and the specific and fundamental role that women play in Aboriginal society. One has only to read the stories of the Jesuits, such as Father Sagard in 1603, to understand how amazed they were to find that Aboriginal women had much more power and initiative than their European counterparts. Four hundred years later, we reversed that situation. Mr. Minister, to allow Aboriginal diversity and respect from Canadian society will be a great challenge.
We are one of the richest nations in the world, with a high standard of living and the highest level of freedom. We have had many discussions on this issue. We have made progress but we still have much ahead of us. There is so much to do.
I cannot believe that, as men and women of good faith, we can approach this issue and find a solution. We will not solve it overnight, but at least we will have the right perspective. The greatest challenge is to have the right perspective, and convince the Aboriginal leaders that we want to respect the two elements of section 35 that are so fundamental to establishing proud Aboriginal societies that can have their own customs, lineage, language, education systems, and values.
We must resolve the issue of jurisdiction. There is a third level of jurisdiction. How will define that level of jurisdiction, and how they will be able to respect the fundamental dignities we believed in and we share with them, is the challenge that we face.
Mr. Nault: I think what you will run across is the debate or the passionate comments of Senator Joyal. That is the issue that, in essence, has been on people's minds for some time.
I have chosen to be a little more blunt than any other minister. On the one hand, I share passionately the views that are being made, but on the other hand, I am tired of seeing people live in poverty. I will go to my 51 First Nations this summer, where 60 per cent of the population are under 25, and 40 per cent are under 15, and see these kids crying out for us to do our jobs.
When we talk about section 35 and about the inherent right to governance, we talk about governance similar to our other governments within our constitutional family.
I do not see section 35 suggesting that these First Nations are sovereign and outside of our constitutional family, and, therefore, can make their own laws, completely, because we have to connect in some fashion. I start from that very strong point of view, because you will never get a minister of the Crown with a mandate to negotiate sovereignty. That will never happen in your lifetime or mine.
If we start that with the basic premise that some politicians start with, then we will leave First Nations communities to their own devices for another 30 or 40 years. That is the debate you have to understand. It is one I have been grappling with for 15 years. I do believe that we need to protect Aboriginal and treaty rights. How is that done within our constitutional family, is the question we are asking.
Did we really do a good job of education, when we transferred what we considered to be jurisdiction? However, we did not transfer jurisdiction on education, we transferred money on education to First Nations in the 1970s. No one took the responsibility of dealing with the jurisdictional side of this equation.
Therefore, there is no protection for Aboriginal language. There is no protection for Aboriginal culture within the education system today. If you believed in maintaining Aboriginal language and culture, you would want to create an institutional framework around them so that they can survive.
I want to see Aboriginal language survive in my children's generation, but at the rate we are going, we are losing them consistently. People in the communities will tell you that fewer and fewer speakers of the language survive.
How do we manage those affairs for Aboriginal people in cooperation and partnership with them as an order of government within our constitution? In my view, very few people have been willing to tackle that question.
I want to start with the simple bill that you will see in the fall. Not Bill C-7, but Bill C-19. Bill C-19 is a bill that starts us down the road to a fiscal relationship. There is no government that can survive, within our constitutional family, without fiscal powers.
If you want First Nations to be successful, they will have to have those fiscal powers. Bill C-19 starts that work. Bill C-19 was prepared by First Nation people for First Nation people and delivered to this minister. The bill will allow property tax issues to be dealt with. It would also allow bonding, and the ability to borrow money at the same rate that other governments do.
That is a huge debate in Indian country. You know why? It is because some say that section 91.24 should not be allowed. If you talk to the B.C. leadership who are supporting Bill C-19 they say we need it to get back into Canada and be successful.
The debate is raging on in not just in our circles, but in the communities themselves. That is a good thing. Please understand that is a good thing. I like this debate. I wish we had it 30 years ago. I am driving what I consider to be a debate that is necessary. Yes, I am being called certain things, which is okay by me, as long as at the end of the day, people stop sitting on the fence. Sitting on the fence is killing people, men, women and children and that cannot continue. People are not proud to be who they are. If you think that leaving it in the state it is at now is the proper and right thing to, do then I guess I missed something somewhere. I cannot manage much longer in a community where, within ten years, over one-half of the population in my riding will be Aboriginal.
I want Aboriginal kids to be part of my economy. I want my children to live in the region because it is a successful place to live.
It is a very simple matter for me, sometimes, but it is a complex file. I want people to understand why I am sitting here.
We have to protect matrimonial property rights and enhance Aboriginal rights. However, if we believe in our constitution, and that Aboriginal people are part of our constitutional family, there are certain requirements that must be fulfilled within that constitutional family. One of those is trying to sort out the collective rights and the individual rights of people within the community. In this case, Aboriginal women are left way behind the general population of women in our society.
I have given you my gut sense of where we have been in the past and where we need to go in the future. I have said, very clearly, that I believe the most respectful way we can deal with this is through enabling legislation.
There are very few Canadians who know what enabling legislation means. It means putting the parameters around something and letting the First Nations sort out the uniqueness of these structures based on culture, language and tradition. I think that is what we are attempting to do.
I do not understand any other way to proceed. People say, and I have heard it repeated by some of the leadership: "We do not need your laws; we will enact our own." If they start from that basis, I do not comprehend how we will have laws totally disconnected from ours and they will function somehow.
I think we are all very passionate about why we are here. I once said I am the only minister that you will ever meet that lobbied for this job, and I think I am.
This is the most important role in this government at this particular time in our history. In the last 20 years we have spent our time debating over Quebec's place in Confederation; the next 20 should be about where Aboriginal people fit in our Confederation.
You can play an important role in this decision-making. We need your sound advice on many issues including the issue of membership. That is a very important issue to most people.
If you have been following the discussion of the Indian Act, you will know that within the next 20 years, literally thousands of people will no longer be classified as status Indians under section 6(1) and section 6(2) of the Indian Act. That is a major issue. There are many people offended by sections 6(1) and 6(2) and the fact that their children will no longer be considered status. We need to deal with that relatively soon; and I would very much like to take that issue on, simply because it is so important to the people. However, at this stage, I think we need to get our way through a couple of other issues first and then go from there.
[Translation]
Senator Ferretti Barth: Mention was made of family violence, divorce, separation and voluntary departures. Can you give me an idea of the living conditions of elderly aboriginal women living on reserves? If a woman is widowed, what are her rights, as far as family assets are concerned?
[English]
Ms. Cornet: With respect to elderly women on reserve, certainly the area of wills and estates law is an important matter. During the focus groups that were held on this subject, First Nation women continually returned to the question of the connection between matrimonial property and wills and estates. In those situations, upon the death of a spouse or partner, the woman can find herself in competition with other members of the family. Under the Indian Act wills and estates are addressed, but not in a context specific to matrimonial property.
If you look at the provincial and territorial situation, the provinces and territories have taken different approaches. In some provinces, the matrimonial property legislation touches on some wills and estates issues; in other provinces, they leave it to the general law of wills and estates. In still other provinces, upon the death of a spouse, the surviving spouse is required to make an election to either choose the rights they would have under the matrimonial property legislation or the wills and estates law. There is a diversity of approach. I think that connection will be an important part in terms of sorting out what needs to be done with respect to matrimonial property, and a consideration in thinking about enabling legislation.
If you take the approach of just putting in three or five words in some piece of federal legislation, you may not know what that includes. First Nation governments may not know what that includes. Is the intent of parliament to include wills and estates issues if they simply refer to matrimonial real property? Does it include other areas that are implicated? I think that, with respect to elderly First Nations women and matrimonial property, wills and estates law is a critical area to look at.
Did you have some questions about domestic violence as well?
[Translation]
Senator Ferretti Barth: If a woman has spent her entire life with her husband and her husband dies, what rights does she have as a widow and surviving spouse? What will become of her as a widow? Are there resources for elderly aboriginal women living on reserves?
I ask the question because an elderly person, regardless of her background, is entitled to live with dignity and to enjoy a certain standard of living. Have you considered the living conditions of elderly widowed Aboriginal women?
[English]
Ms. Ginnish: Senator, we have not, as yet, undertaken any research on the specific issue of elderly women. What happens to elderly women whose spouses die and who are residing on a reserve depends a great deal on what their personal situation is.
If you have a widow who is a member of an Indian band, who resided with her husband on reserve, who had a home with her husband on that reserve, I would say that, for the most part, she would continue to reside in that home until she dies, or with the assistance of her family, if that is a possibility.
In terms of what kind of resources would be available to her, if her husband was employed and had a pension, she would most likely be eligible for those survivors' benefits. If she receives old age security in her own right it would continue. She would have the same kind of access to the normal Canadian benefits available to elderly people, whether she was residing on- or off-reserve.
If she is not a member of the band, and she was residing with her husband in that community, then often times the situation is left to the discretion of either the chief and band council, or the family in question. She would, in certain situations, be subject to the whims of either the family or the chief and council. Therefore, the situation would depend a great deal on whether she is a band member, whether she is a registered Indian, how long she resided in community and the relationship she has with the family and with the leadership.
[Translation]
Senator Ferretti Barth: Can you give us an idea of the number of Aboriginal communities in Canada and of the number of aboriginal women who live in these communities? I would also like to know how many women have been affected by divorce or separation. If we knew how many women had experienced divorce or spousal violence, then we would know how to respond to the situation.
[English]
Mr. Nault: The honourable senator has asked a question concerning statistics. We can tell you the population of on- reserve women. It is 54 per cent. I will get you the exact numbers. The figure mirrors very much the national average.
We are having a difficult time getting statistics on divorce and separation, because of the lack of structure, which is what we are dealing with today. Those numbers are not readily available, but we are attempting collect them. If you talk to the AFN, they are different from what the department recognizes. I can give you a list of every community across the country, both recognized by the department and those that are not. Some are in the midst of settlement. We are negotiating with a number to create reserves. Bigstone has a couple of communities that are considered settlements for the sake of this discussion today. That is why the numbers vary at this point. Our official number is 622; it is higher at the AFN.
We will attempt to give you as many statistics as we can, based on the knowledge that we have about the issue of Aboriginal women and matrimonial property rights, separation and divorce.
In the First Nation communities, we tend to talk about this from time to time. There is no recognition by the culture of same-sex arrangements, even though we know there are. It is not one of those areas that you will get the leadership or the elders to talk about openly. That is an issue that you must confront. It is an issue in society with which we are dealing. You might want to keep that in mind, even though that may be a smaller number. We have no statistics vis-à- vis that subject matter.
Senator Poy: I do not quite understand band membership. When a woman marries someone on the reserve, or when she lives in common law with him, does she then adopt his membership in the band? How does that work? Does that then give her the right to stay on the reserve?
Ms. Ginnish: The situation depends on when the marriage occurred. If you have a non-Aboriginal person who married a non-registered Indian prior to 1985, the woman would have automatically obtained Indian status and band membership and so would be a status Indian and a member of the band.
In 1985, we made some substantive changes to the Indian Act that provided First Nations with the opportunity to control their own membership. Currently, we have about 230 First Nations who control their own membership and determine who is a member.
If a woman marries a member of that community, after they have assumed control of membership, then whether or not they become a member depends on what the band membership rules say for that situation. For the most part, I would say the majority of them do not necessarily give that woman band membership.
The situation would depend on which First Nation you belong to, when your marriage occurred and what the band membership rules say for that particular First Nation.
For the other two-thirds of First Nations there is no way that you can acquire Indian status or band membership solely as a result of marriage. You would be residing in that community as a spouse of that person, but not necessarily a band member.
Senator Poy: Can a woman from one band retain her own band membership even though she moves into another reserve and marries someone or lives in common-law with a man from another reserve; does she have a choice?
Ms. Ginnish: After 1985, yes, there is a choice. She can decide to retain her band membership with her natal band, or she can, as the minister said previously, decide to transfer to her husband's band.
Prior to 1985, and the changes in the Indian Act, there was no choice. In that situation, women who married had to choose their husband's band.
Senator Poy: Among the elders and leaders, can they say to a woman who has married and moved to another reserve, "Well, you cannot choose to keep your own status"? Does that happen? Can she say, "No, I want to keep my own status"?
Ms. Ginnish: If the marriage occurred after 1985, she can choose to keep her own band membership.
Senator Poy: When a woman moves to another reserve, she does not necessarily have membership in that band.
Ms. Ginnish: That is true.
Senator Poy: Does that means that she really has no rights on that reserve? What happens if her husband dies? Can they just tell her to leave with or without her children?
Mr. Nault: We do have situations that have come to our attention where those who managed their own membership have restricted and/or not made it easy for women who have come in through marriage to join the band. That does happen. I was talking to a woman in Edmonton just the other day about the frustration their children are finding as not being band members even though her husband is a member of the band. It does happen. How universal is it? We do not control the band membership list for over 200 First Nations. Therefore, we do not have those statistics. It is about governance and self-government in the sense that it was chosen that we would take the route of allowing control of membership by the band itself.
We do receive information and letters from women about those kinds of concerns, but we do not have the kinds of statistics that you might be looking for and what their rights are exactly. That would be specific to that particular band, and then you would have to call them as a witness and ask them specifically to explain how their custom code would work vis-à-vis membership.
Senator Poy: What about the children? With they inherit membership from the father? Does it make a difference between boys and girls?
Ms. Ginnish: Again, much depends on when you were born, when the marriage occurred and what the situation is for that First Nation in terms of whether or not it controls band membership.
Normally speaking, if you have at least one parent who is a member of a band. It is difficult to make it that simple, but in many cases you would automatically be a member of that band.
Senator Poy: Does not make a difference if it is a boy or a girl?
Mr. Nault: Not that we know of.
Ms. Ginnish: Not post-1985, no.
Ms. Cornet: There was a research report prepared for the Assembly of First Nations that describes various categories of membership codes and the different approaches that different First Nations have taken to membership. I could undertake to find a copy of that and send it to you. That is yet another complex area but there has been some research work done looking at the practices of various First Nations on that issue.
Senator Poy: What you are saying is really every First Nation has a different rule?
Ms. Cornet: Not necessarily. There is still a role for the Indian Act in this question as well. In some cases, First Nations membership codes are governed by the same rules in the Indian Act with respect to Indian status.
For those First Nations who have assumed control over membership, there is a range of different approaches. We can send you some information and some research on that situation.
Mr. Nault: Please keep in mind now that you have to differentiate between membership in a band and Indian status. We have a master list that includes all status people that is different from membership within a band and a community. That does not mean that the First Nation person who has status is not given the same rights as far as the programs and services that are delivered by the government and/or through First Nations governments. It becomes a whole issue of what benefits come with membership in a band. There may be royalties and/or other source revenue that is distributed. Those members then become beneficiaries as members of the band.
There are some different rules here; we will try to find the documents that will lay it out as precisely. In fairness, there are only so many different kinds of codes. I do not want to leave the impression that there are 622 different codes because there are not. Remember, those who are not under the custom are under the Indian Act; therefore they are pretty much universal, relatively speaking, across the country.
Senator Poy: Are property rights connected with membership or with status or either?
Mr. Nault: I would say membership. We do have technical people available who will want to come and brief you on this particular area. We have a number of them. We did not bring them today. We wanted to get the general discussion going but I am sure the clerk will want to look at calling upon these people. There are a number of technicians in different areas of membership that we were speaking of this morning.
Madam Chair, you may want to focus your attention on those areas to bring everyone up to speed. Before you get into the witnesses out there, you might want to have some technical briefings. This is a very complex area.
The Chairman: Minister, do you have enough time for us to do some questions on a second round?
Mr. Nault: Definitely.
Senator Chaput: I have a comment. I would like to thank you for the presentation you have given us today. I am trying to understand. I read and listen and I am trying to digest all of this. It is just not acceptable that our First Nations women have no rights for themselves or their children. It is not acceptable. Our country has to do better. As a senator, I will do my utmost to make recommendations to change that situation.
Senator Jaffer: Has the work of the special representative been completed? I understood that the special representative was not able to go to many areas. Minister perhaps you could urge that more resources should be made available to help the special representative do some more work.
Mr. Nault: I can generally give you a sense of it and Ms. Ginnish can give you details. I want to make it clear that there was not a lack of resources. We put over $1 million into the special representative's work. It was a little more complex, as I understand, than just the financial resources. This is a very sensitive matter. As I understand it, the women are reluctant to speak of these issues. In the work of the special representative, we were confronted with that reluctance.
The special representative's report is available. I understand we have transmitted it to you. We did start with that process to try to get a handle on the communities and the women themselves. I am not sure we succeeded in understanding the direction in which they want to go. That is one of the reasons I am asking you to follow up on the special representative's work, to bring it even a step closer to some recommendations and some ideas of how we might want to proceed.
Ms. Ginnish was directly involved in that on our behalf. She can give you more detail of how that worked.
Ms. Ginnish: Just to confirm what the minister said, the special representative process is essentially finished. She did prepare a report which was tabled with our minister and which we can certainly provide to you, if you have not already received it.
After much discussion with a team of advisers that she had, it was decided that the best way to deal with this would be to hold individual focus group sessions in each of the regions across the country. That process was undertaken.
The most important lesson we got from that process was that women generally felt there was not enough information available for them. In order for them to discuss the issue fully, they wanted to have a lot more information provided to them. They wanted to have more time to discuss the issues. They wanted information available in more plain language and less complex legal language. That is why we decided to prepare the plain language pamphlet and to undertake the work that Ms. Cornet did in terms of the discussion paper.
Through that process, we also realized that women were not at all aware of their rights in terms of marital property, but it was not just limited to marital property. They were not well aware of their rights as individuals. That was an area that they pointed to that needed further work.
Senator Jaffer: We do have the recommendations and the report. I asked because one of her recommendations was to extend her work for one year to go into the other areas. That was my main reason for asking.
Senator Beaudoin: I am please with the discussions this morning. I am pleased by the fact, Mr. Minister, that you will use section 91.24. It has always been my preoccupation because I think we should have been doing that for the last 30 years. It is a power and we should use it. As Senator Joyal said, perhaps we should be much more innovative than we are in the field of Aboriginal rights because they were here 10,000 years before us and they have their own ideas and their own culture.
It would be a good thing, as you said, to come into the field of education, because education is very important. We have full power to use section 91.24 for the education of Aboriginal people. Nothing would preclude us from being innovative.
Of course we will use the universities that we have, but there is no reason why we cannot have more. Some universities in Canada already have programs for Aboriginal people. Perhaps we should be innovative in that field. The question of power is very clear-cut. We have full power.
Mr. Nault: Madam Chair, I do not think there is anyone around the room who will disagree with me that the role of government, if you break it down to its simplest form, is to put in place the kind of institutional structures that will make our children successful in the next generation. When you break it down, that is what government's role really is. I am a proud Canadian because I think my children have the best chance of just about any child in the world of being successful. I want the same for Aboriginal children, and I do not see that today. I am posing that we turn that situation around.
I have asked Aboriginal leaders if it is a question of money or the jurisdictional gap that exists in the educational structure? We are so far apart between the provinces and the First Nations education system that by the time the child meets the provincial education system it is very difficult for him or her. Without removing the jurisdiction of education from Aboriginal people, because our policy is to maintain the jurisdiction with Aboriginal people, we need to find a way to make it work. We are already moving on a series of pilot projects. I was in Treaty 6 this last week. Treaty 6 is entering into a pilot project to take over the educational system and to look at the authorities and how it would work in a different way than just being a community-based system. That is one area.
On the issue of section 91.24, we are involved in negotiations with Aboriginal groups right across British Columbia on what we are calling a sectoral educational agreement between First Nations and the province of British Columbia. That is moving quite well, and maybe one of the ways to deal with the issue. I find the B.C. First Nations to be the most progressive in the country in looking at ways to improve their communities' lives. I have to tell you that on the record. I am very impressed with the leadership in British Columbia. They take their work very seriously and they confront those issues. Obviously, they are the group that is driving this agenda vis-à-vis section 91.24 versus section 35. They are not suggesting they are opposed to section 35. They have said that they can live with both of these moving at the same time instead of holding off making progress until we get to our self-government and treaty discussions in a modern context. I think that is a wise move by many of those leaders, and that debate, I understand, is going on as we speak with the national leadership. I will leave that to them.
My point to you is that education is already a high priority for us. You will see some work on that because it is important. I cannot, again, emphasize enough our concern about the language and the fact that we are losing what we consider to be languages that do not exist anywhere else in the world. We are not pleased with our results. That has to be in the education system. That does not exist the way we see it today. I give you that example.
I will not go any further with the issue of section 91.24 and how it works. I do not think I need to preach to Senator Beaudoin about that. He knows more than I will ever know about that subject matter.
At this point in time, we are at a place where this debate is now not only filling this room, but it is the number one debate on the hustings in the Aboriginal leadership. In the communities, in the kitchens of the families on reserve, they are talking about governance. If I have to be pleased about anything, it is the fact that people are having this discussion.
I hope we have been helpful. You have to do this remembering that we are not all lawyers. Therefore, it is not helpful if we do not have plain language explanations of how the world will evolve. I get frustrated sometimes when we get into these discussions from a legal point of view. I always try to bring it down to the community level. How do we make a community successful today?
One of the areas of women's rights is how the community deals with Aboriginal women's rights and maintains their culture and traditions and their integrity within that area. I think that is something you will deal with, and I am sure whenever you stray off that, Senator Chalifoux will bring you back to the reality of it, and I hope she does do that because that is certainly our wish on this side of the table.
The Chairman: Mr. Minister, Ms. Ginnish and Ms. Cornet, thank you very much. Our plates are full, but I think with Senator Chalifoux's guidance, as probably the one with the most experience around this table, and our two constitutional experts, we should be able to give you an interim report. I assume that while we deliberate your office will be keeping an ear glued to what is happening on the committee. Should we need you, may we call you back?
Mr. Nault: Yes, and thank you, Madam Chair. I want to thank you very much for undertaking what I consider to be one of the most important issues of our day and our time.
I want to say to you right from the get-go, I am not looking for a quick fix. I am not in a hurry. I am not looking for interim reports, necessarily. I am just looking for your assurance that you see this as one of the most important committees to work in the Senate in the time I have been a member of parliament, because this is extremely important to Aboriginal women and their children.
I hope you will give it its fair due and work extremely hard to give us the kinds of recommendation's that will make the lives of the people that we represent that much better. Thank you for letting me come today.
The Chairman: Thank you very much.
The committee adjourned.