Proceedings of the Standing Senate Committee on
Human Rights
Issue 8 - Evidence
OTTAWA, Monday, September 29, 2003
The Standing Senate Committee on Human Rights met this day at 11:35 a.m. to study upon 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: I call the meeting to order and welcome Ms. Morin and honourable senators.
In June, the committee was authorized by the Senate to begin this important study on key legal issues affecting the subject of on-reserve real property on the breakdown of a marriage or common law relationship. The committee received the mandate to examine four specific items: the interplay between provincial and federal laws in addressing the division of matrimonial property — personal and real — on-reserve and, in particular, enforcement of court decisions; the practice of land allotment on-reserve and, in particular, with respect to custom land allotment; in a case of marriage or common-law relationship, the status of spouses and how real property is divided on the breakdown of the relationship; and, last but not least, possible solutions that would balance individual and community interests.
[Translation]
To date, the committee has met with many witnesses from a variety of groups representing aboriginal peoples. In June, we welcomed the Minister of Indian and Northern Affairs, the Honourable Robert Nault, to our committee.
In the coming weeks, our committee will have the opportunity to hear from a number of organizations, individuals and experts. If necessary, we will also call in departmental officials to testify.
I wish to remind members that they can submit comments about this subject in writing to the committee.
[English]
The committee would like to table its report at the end of December 2003. To fulfil the mandate we have been given, we have decided to focus on three areas: First Nations under the Indian Act, First Nations under the First Nations Land Management Act, and First Nations under self-government.
Ms. Morin, I recall meeting you when you were a research assistant to Senator Chalifoux. Since April 2000, you have been the Director of Operations for the Enoch Cree Nation in Alberta. In this capacity, you direct and control band support programs. It should be most interesting to hear what you have to say that could help us with our mandate from the minister. Ms. Morin, please proceed.
Ms. Irene Morin, Enoch First Nation, As an Individual: Honourable senators, thank you for the invitation and the opportunity to speak to your committee on the issue of on-reserve matrimonial real property on the breakdown of a marriage or common law relationship.
I am a member of the Enoch Cree Nation and a mother of six children — all grown, of course — a grandmother of 23, and I have two great-grandchildren. I do not speak for any particular group, but I speak as an individual who might, in some way, help you with your study.
I would like to begin by making reference to the Indian Act. The definition of the Indian Act, as spelled out in the act, is "an act respecting Indians." This piece of legislation provides the Government of Canada with the legal framework of authority over Indians and Indian lands reserved for Indians as stated in the Constitution Act, 1867. The main purpose of the Indian Act is to control and regulate Indian lives.
The Indian Act is silent on the question of matrimonial real property or matrimonial property rights. We all know that the Indian Act is discriminatory as it relates to the legal rights to on-reserve matrimonial homes when a relationship ends. The outdated Indian Act does not address the division of matrimonial real property on reserves. Only section 48 of the Indian Act speaks of heirs to estates in relation to who inherits the deceased's property.
There is the issue of Certificate of Possession, CP, and Certificate of Occupation, CO, on reserve land. A certificate of possession allows a band member to possess a parcel of land; the document is his proof of lawful possession. A Band Council Resolution is required to obtain this certificate. Individuals can sell their right of possession to other band members, lease the land to non-band members or otherwise develop the land with the consent of the band council and the Minister of Indian Affairs and Northern Development. This possession continues indefinitely as long as there are heirs to the estate of the CP holder.
The sale or transfer of CP lands can only be to someone who is a band member. The Minister of Indian Affairs is the only one who has the authority to approve an application for a Certificate of Possession or to cancel it. A CP is not a right of "ownership," but instead is a right of possession to the exclusion of other band members. A band member never owns the land but merely has a right of possession through the issuance of the CP, which details the portion of land within the reserve set aside for the band member's exclusive use.
A Certificate of Occupation allows the occupation of reserve land for an initial two years and may be extended to four years. A Band Council Resolution is also required to obtain this certificate. The Minister of Indian Affairs approves this certificate. This may be the first step in applying for a Certificate of Possession.
There is also the traditional possession or Custom Land Allotment. Although this is not recognized within the Indian Act, a person can be in lawful possession of reserve land by custom or tradition. Evidence will be needed to support a claim regarding the custom or traditional land holding. An Elder's testimony that the individual or the individual's family was given lawful possession of a particular piece of land and how it was acquired may be needed as proof.
I want to give you a situation of custom land allotment. In the late 1960s, my father-in-law gave some property to my husband. These hay meadows had been in my father-in-law's possession and in his father's possession before him. In 1970, my father-in-law died. One year later my husband died. Within a year after my husband's death, this parcel of land was given to another band member through a Band Council Resolution. The chief at that time indicated to his council that I, as a surviving spouse, was not interested in this piece of land; but at no time did he ask me if I wanted to retain the possession of this property. The person who requested this land was on council at the time, and he still holds this property in his possession.
From 1971 to now, some things have changed. Many women in my community now enjoy the same advantages as the men do regarding land ownership.
Lastly, there is the Band land. This is the property that is jointly owned by all the band members, land that is still in the possession of the band and not by individual members of the band. While the land possession system in the Indian Act does not prohibit women from possessing reserve property, there is the perception that women are not entitled to possess reserve land. Most First Nations women live on their husband's reserves, and it is usually he who possesses the reserve properties. First Nations women living on a reserve have fewer rights regarding their matrimonial home when a marriage or a common law relationship ends than those living off reserve.
The First Nations Land Management Act is a piece of legislature that gives bands the latitude to improve their community's economic potential. In 1999, 14 bands adopted the First Nations Land Management Act. Only one in Alberta participated. The First Nations Land Management Act is an act providing for the ratification and the bringing into effect the Framework Agreement on First Nation Land Management. Bill C-49 would enable participating First Nations to opt out of land management sections of the Indian Act, and to establish their own land codes to manage reserve land and resources. It includes a number of changes, including provisions regarding the use, occupation, possession and division of interests in First Nation land upon the breakdown of a marriage.
Clause 17 of the First Nations Land Management Act would require a First Nation, following the community consultation process set out in its land code, to establish general rules and procedures for land-related matters in case of marriage breakdown. Participating First Nations establish a community process to develop rules and regulations and procedures to deal with matrimonial property within 12 months from the date the land code takes effect. Under the initiative, First Nations develop laws that are applicable on the breakdown of a marriage.
In 1986, the Supreme Court of Canada held that as a result of the Indian Act, a woman could not apply for one-half of the interest in the on-reserve properties for which her husband holds a certificate of possession. At best, a woman may receive an award of compensation to replace her one-half interest in such properties.
In Derrickson v. Derrickson, this issue was well addressed and is now considered well-settled law in relation to applicability of provincial legislation to Indian land. Ms. Derrickson sought a division of family assets pursuant to the Family Relations Act in British Columbia. This property was registered to her husband as a certificate of possession, and was located on the Westbank Indian Reserve. The provincial court held that the Family Relations Act — a provincial statute — could not be used to distribute the land within the reserve. The court found that possession of reserve land came under the federal government's responsibility and that provincial law did not apply.
Ms. Derrickson was unsuccessful in obtaining the one-half interest of the land located on the reserve. However, the court did provide an alternative remedy under the Family Relations Act, and ordered compensation under the statute, taking into account the value of the reserve properties held by the husband. The court held that a compensation order was not in conflict with the provisions of the Indian Act, as the Indian Act did not provide compensation between spouses.
Although a provincial court cannot order division of real property situated on a reserve, it can order a division of movable chattels situated on reserve, such as vehicles, household furnishings, personal possessions, clothes and money. At law, with a court order, an Indian can seize movable properties situated on reserve from another Indian. However, a non-Indian cannot seize movable assets located on reserve from an Indian.
In 1997, the B.C. Native Women's Society launched a suit against the federal government in the federal court claiming that the federal government failed to fulfil fiduciary obligations to Indians with respect to the division of the matrimonial home upon the breakdown of a marriage. While the suit primarily concerned the Indian Act, the plaintiffs argued that by taking steps to implement the Framework Agreement on land management without ensuring matrimonial property protection for married First Nations women on reserve, the federal government was breaching fiduciary duties and violating section 15(1) of the Canadian Charter of Rights and Freedoms. The Framework Agreement was amended and related provisions were included in Bill C-49.
There are no enforceable rules about who gets to stay in the matrimonial home. Each First Nations community handles this situation differently. I believe that the women who are the primary caregivers of the children should remain in the matrimonial home.
Results are that First Nations women living on reserves are denied protections widely recognized as essential to women and children upon breakdown of a marriage or common-law relationship.
There is a need for more land. Housing is in short supply on most reserves. I would like to point out that our First Nation community welcomed our Bill C-31 women. Housing was provided for those who applied for housing, while others chose to live off reserve. We have no empty dwellings in our community. We could use and need more houses for our band members. Enoch First Nation has a housing policy in place, while we still follow land management sections of the Indian Act. Our community is 20 square miles, with a population of 1,400 people living on reserve and approximately 300-plus living off reserve.
I mentioned earlier that my husband's traditional land was given away to another Band member. Well, things have changed from 1971 to now. I said it before and I will say it again: Many women in our community now enjoy the same advantages as the men regarding landownership.
It is the current practice of the Enoch Cree Nation leadership to allow their women and children to remain in the matrimonial home when a common-law relationship ends or a divorce occurs. There are three First Nations women in our community — who were not originally members of Enoch — who, upon divorcing their husbands, hold a Certificate of Possession. Ten other women hold CPs and four women hold COs.
I believe that the Enoch Cree Nation leadership has been fair to women on the reserve. In the early 1970s, Enoch Cree Nation voted their first woman to a seat on the Band Council. Since that time, at least two to three women have won seats on Band Council and retain these seats each term. I would also like to point out that our Band Council has respected maintenance orders and has deducted payments from those spouses working for Enoch who are under a garnishee order.
I empathize with First Nations women who are affected by any inequality. I agree that we need to put an end to discrimination within the Indian Act. We need to protect the rights of First Nations women and children. I also believe that we need to empower women to take a more assertive stand in cases of family violence.
In Bill C-49 regarding land codes, bylaws are needed to execute and enforce these land codes, especially those on matrimonial issues. It would be favourable for First Nations to embrace the First Nations Land Management Act. Certainly, changes or amendments to sections of the Indian Act are needed, but these changes need the full participation of First Nations and we know that it will take time to enact them. We need capacity and resources to work on these changes or amendments.
I am a firm believer in using mediation and arbitration as a means to correcting or strengthening any situation. There are concerns regarding family violence on reserve and I would like to see women's shelters on reserves — facilities that would be a safe and secure environment for women experiencing difficult situations in the home. These facilities should provide psychological counselling for the women.
I am an optimist, and I am hopeful that the study this committee is conducting will produce good recommendations for changes to the Indian Act that will guarantee equality for all First Nations women across Canada. Once again, thank you for the invitation to present. I would like to end by commending the Senate committee for their hard work.
I would also add that someday, I hope to be a senator like my role model, Senator Chalifoux.
Senator Beaudoin: I am not surprised that the Indian Act is rather silent on the subject of matrimonial property. There is, of course, the situation that the reserves usually belong to the Crown. It may be in right of Canada, it may be in right of a province, but usually it is the Crown.
On the other hand, the Derrickson case says that the provincial laws do not apply. However, we have all the powers of legislation that we want under section 91(24). Perhaps we have some other statutes that are closer to us than the Indian Act.
To the best of my knowledge, you have not referred to those other statutes that may, perhaps, address the problem to a certain extent.
Ms. Morin: No, I have not.
Senator Beaudoin: Is that because you prefer that we amend the Indian Act?
Ms. Morin: That was my understanding — namely, that the study and recommendations made by this committee would be in respect of what changes to make to the Indian Act.
Senator Beaudoin: I wonder if I would not scrap it and enact another one. Perhaps that is going too far.
You prefer that we amend the Indian Act rather than to try to find a solution in some other statutes. Is that correct?
Ms. Morin: It would help if the other statutes were taken into consideration. At the same time, there are certain sections within the Indian Act that protect us as treaty people. The leadership across this country would probably say that we have to hold on to our treaty rights, and I agree with them.
This morning I saw an inscription that read, "As long as the sun shines, the grass grows and the river flows." I think all First Nations across Canada believe that and hold on to that. Our ancestors — who signed treaties with the Queen of England — still hold on to that and will never let go of it.
I believe that there are other statutes, for example, the Constitution Act, the Charter of Rights and Freedoms, and a number of federal statutes that could be looked at to help to eradicate the inequalities that women face.
Senator Beaudoin: There is such a thing as the right of possession. We do not have the right of ownership. We start from this. Are there other women who were able to obtain the right of possession? You referred to one case.
Ms. Morin: I referred to three women who own a Certificate of Possession upon divorce from their husband.
Senator Beaudoin: Upon divorce?
Ms. Morin: Yes. Different First Nations communities handle things differently because there is not a blanket rule that would apply to all First Nations across Canada.
The First Nations leadership in each community needs to take a close look at how they are dealing with their women. It is not that I want any special favours from my chief and council for saying this, but our leadership has been very compassionate when it comes to women's issues. The women who do have the Certificates of Possession upon divorce from the husband approached the leadership to ask that a portion of the land to be set aside for them because the land was in possession by their husband under a CP. You have to make application to your leadership for that. In turn, once you apply for 50 per cent — or whatever share of the property you are requesting — that application has to go Band Council first and the Band Council resolution is drafted and sent to the Minister of Indian Affairs.
The Minister of Indian Affairs then either accepts or rejects the application. If the minister says that is fine, the women are in possession of that land. As I said, there is no such thing as ownership of property on reserve.
Because they have a Certificate of Possession, the property is set aside for their use. They can develop it, lease it to non-band members, or sell it to another band member, but never to anybody outside of that band.
Senator Beaudoin: If they do all this, would it solve the problem?
Ms. Morin: I cannot say that it would solve the problem, but I think that it would help the women, especially those who are undergoing a divorce. I have not seen any woman who is living common-law with another band member on the reserve have access to the possession of the land under a certificate. However, I have seen women whose husbands have died and they have inherited the possession of that land.
Senator Jaffer: Ms. Morin, welcome. Your work amongst the women is well known. It is good to have you here in front of us.
I found your presentation very interesting. Our committee must struggle with two different themes in presentations we are getting. In one people are saying, "Wait. After consultations, we will come up with a plan." Others say, "The Indian Act is not perfect, but we need solutions now."
You had unfairness happen to you a long time ago. You lost the land that rightly belonged to you. Since then, things have been working better in the reserve.
I see this as a transitional measure, until there is better consultation and the Indian Act is amended. I would like to know what you think we should be doing. I understand that on your reserve, things are working, but on many reserves, women are not being treated as fairly. I would like to hear your opinion on that issue.
Ms. Morin: When I first heard about the study that was being undertaken by this committee, I wondered how you would go about getting information from women across Canada. I thought that a good process would be for the Senate committee to go to the First Nations to hear from the women in the communities. I think that has happened to some extent. However, the committees have gone to the urban centres, and that is not where most First Nations women live. Some live off-reserve, not the majority of them live on the reserves.
I am not sure if it would be a good idea to have the men present because they probably would give a different point of view. The majority of the decisions made on the reserve in relation to property are made by men, and mostly in favour of men. However, inviting certain women to come to present before the committee may not be enough. Perhaps we need to have a broader number of opinions from different women across Canada. I am not sure how that can be achieved because I know that it costs money to do this.
I do not know how many presenters you will be listening to, but I think it would be a good idea to hear from many women who live on reserve. The women who live off the reserve know that if they want to have their fair share of any real property, the provincial court can determine their entitlement. However, if a woman lives on-reserve, there are many things to consider. I would like to see more women living on reserve making presentations.
Senator Jaffer: Ms. Morin, I can assure you that our chair has worked very hard to try to find that balance, but the challenge we have is not so much finances but time. The minister has given us a very tight timetable. As much as we desire to hear from as many people as possible, that would in a way be abdicating because the time will then run out and there is a great need to act as well.
I would ask you to think about whether there are any other women you think should be here. I am certain that our chair will accommodate those.
I have another question that worries me a great deal. It is your suggestion of mediations and arbitrations. I have been involved in mediations for a long time. One of the challenges, especially where there is violence involved, is the power relationship that exists at the table, especially against the women. I would like you to give some thought to this — perhaps not today — as to how mediation would work, especially when there is some violence.
Ms. Morin: As I said earlier, I am an optimist. If the relationship is so bad that there is no hope for reconciliation, then that is the way it should be. However, if there is a faint possibility of reconciliation, then that should be looked at. We have many First Nations women who experience family violence. Because we do not have women's shelters on reserves, women have to go into the cities to seek security and a safe place.
I definitely will be looking at what I have said this morning, and maybe talking to other women in the community. You asked how we could get more participation from different women. There are the women's groups across Canada. Every province has a women's group. Perhaps they could meet and discuss some of the things that we are discussing today. If you would allow it, they could send in their recommendations as a group of women from the provinces. That would be a way of getting more involvement and participation from them, if they cannot attend to present personally at this committee.
Senator Jaffer: Thank you. We have had practically all, if not all, the women's groups present already, but your ideas are helpful.
Senator Joyal: I should like to refer to the second paragraph on page 4 of your brief. You state that in 199, 14 Bands adopted the First Nations Land Management Act. Theoretically, if that act were to be embraced by all First Nations, how many more nations would have to join in the act?
Ms. Morin: I would say in the hundreds. I have heard that we have 633 First Nations across Canada.
Senator Joyal: In other words, only a minimal fraction of First Nations benefit from the provisions of the act, especially the women.
In the third paragraph on the same page, you state that clause 17 of the act allows the establishment of general rules and procedures for land-related matters in case of marriage breakdown.
To your knowledge, have all 14 bands that have joined the act adopted such a provision dealing with land management in case of marriage breakdown?
Ms. Morin: As far as I know, only two or three of those 14 First Nations have established land codes pertaining to marriage breakdowns.
Senator Joyal: For the information of the members of this committee, should it be possible to have the provisions of those two or three codes, whereby there is a system to address the marriage breakdown and land allocation at that time? It would be helpful to the members of the committee to look into those codes.
Therefore, of the more than 600 Indian First Nations bands, there would be two or three codes that would provide for allocation of land in the case of marriage breakdown — so that we have an idea of the problem. Am I right or am I overstretching it?
Ms. Morin: As I understand it, the First Nations have been given an opportunity to create or to develop their own land codes. I am not sure how many different land codes would be created as a result of that. It could be the two. Maybe the other First Nations would follow suit with those who have such land codes in place.
Senator Joyal: In other words, the solution to the problems of land possession in case of marriage breakdown has been minimally addressed through the benefit that flows from the First Nations Land Management Act. Down the line, it could be adopted by a much larger number of bands, however, at this point in time, it has solved the problems of only a minimal number of persons affected by marriage breakdown.
Ms. Morin: That is correct. It would be good for all First Nations to adopt the First Nations Land Management Act.
I worked in Ottawa when the First Nations Land Management Act was going through the House of Commons and into the Senate. I worked for Senator Chalifoux so I knew about the act, and I spoke to several chiefs about the act. Of course, the issue raises concerns that "they are doing whatever they can to get rid of our treaty rights and stuff." That is always in the minds of First Nations' people across Canada. Any time that you want to change something or amend an act, people begin to worry that our treaty rights will be affected.
If I were the chief of my band, I would seriously consider the First Nations Land Management Act for my reserve.
Senator Joyal: Your band has not opted in?
Ms. Morin: We have not as yet. There is always the issue of land on reserve. I believe that all land on the reserve should belong jointly to all band members of that reserve. I am not in favour of Certificates of Possession; I am not in favour of Certificates of Occupation. Any land set aside for Indians should belong to all the band members of that particular band.
Senator Joyal: In that context, how would you solve the arbitration needed in the case of a marriage breakdown or a common-law relationship? How do you address the issue of the status of women and children, and, of course, of the sharing of the assets of the couple to make sure that women maintain the capacity to educate their children?
How would you solve that in the context of the ideal situation that you describe?
Ms. Morin: First, I would embrace the First Nations Land Management Act. Given the need for dealing with the matrimonial property on reserve, give the woman equal right to property.
However, in the event that there were no Certificates of Possession and Certificates of Occupation, we would have to come up with some new law within the reserve that could be put into the Indian Act that would help us determine how to deal with marriage breakdowns. If the band members of the reserve jointly owned this land, then there would be no issue of who gets the property. It would remain as property that belongs to all the members of the band.
Senator Joyal: In the case of a marriage breakdown or termination of the common-law relationship, who, in your mind, should be the arbitrator who decides that the woman should stay in the house with the children and that the woman should be entitled to a share of the assets?
Ms. Morin: We have many Elders with wisdom, with knowledge of all the members who live in the community. They would be the ideal people to deal with any mediation within the community.
Senator Joyal: In other words, would you call upon these wise people who are respected and recognized by the community as such?
Ms. Morin: Yes.
Senator Joyal: Would they be vested with the responsibility or the decision-making capacity to be fair in the circumstances and not be put into the context through which you have lived? You mentioned that someone on the Band Council there was someone wanted your property and your dwelling and was able to politically manoeuvre within the Band Council to deprive you of that. Do I understand your testimony correctly?
Ms. Morin: That is true, yes.
Senator Joyal: In the last paragraph of page 5 of your brief, you write:
In 1997, the B.C. Native Women's Society launched a suit against the federal government in the Federal Court claiming that the federal government failed to fulfil fiduciary obligations to Indians with respect to the division of the matrimonial home upon the breakdown of marriage.
While the suit primarily concerns the Indian Act, the plaintiffs argued that by taking steps to implement the Framework Agreement on Land Management without ensuring matrimonial property protection for married First Nations women on reserve, the federal government was breaching fiduciary duties and violating section 15(1) of the Canadian Charter of Rights and Freedoms.
Can you remind us of the names of the party in that case?
Ms. Morin: The B.C. Native Women's Society, Teresa Nahanee and Jane Gottfriedson.
Senator Joyal: Madam Chair, I think we should have an opportunity to look into that before we reach our conclusion. There are two important principles at stake here. The first is the equality of rights of Aboriginal women and men, as enshrined in section 35.4 of the Constitution. The second is the fundamental constitutional principle of fiduciary obligations of the federal Crown. That is of fundamental importance if we are to make recommendations. I will review the case for my own information.
By not acting on the basis of protecting the matrimonial homes of Aboriginal women, the allegation that the federal government is in breach of its fiduciary obligations to Indian women is of fundamental importance to this work.
We might have an opportunity to review that. I thank you for bringing it to our attention. The concept of fiduciary obligation is one that has been sanctioned by the Supreme Court of Canada in relation to the Aboriginal people of Canada. The Crown's honour is at stake in terms of that obligation. This is a fundamental point to be addressed by this committee in its recommendations.
In other words, it is not a matter for the federal government to decide to act on the basis of a policy issue. It is a matter of constitutional duty for the federal government to act. In my view, they are two fundamentally different points.
The committee might want to review that aspect of the decision of the court so that we can expand on it in our report.
The Chairman: We will be having interventions on these two particular points.
In March of this year, the minister announced that 19 additional First Nations were looking at signing a framework agreement on land codes. Next week, we will be hearing from Chief Margaret Panesse-Mayer of the Nippissing First Nation who will discuss their land code with us.
Senator Joyal: My request remains. We should get copies of the various codes to understand better the approaches to the settlement of matrimonial issues in the case of matrimonial breakdown.
The Chairman: We are trying right now to obtain those, senator.
Senator Chalifoux: Ms. Morin, I know that you were a member of another reserve when you married your husband. When he died, did you attempt to go to your home reserve? If you did, what was the result of that request?
Ms. Morin: No, I did not seek reinstatement to the Kehewin Cree Nation. I chose not to. However, I still call it home. It is where I was born.
When I visit the people of the Kehewin Cree Nation, they are always happy to see me. At some point they asked, "When are you coming home?" I say, "I have a home. My home is Enoch."
When I moved to Enoch, I left my other home to make my home with my husband. However, during my marriage there was a time when my husband and I split up for a number of months. During that period, I could have gone back home to Kehewin. However, as I say, I chose not to.
When my husband and I split up, I moved in with my mother, who lived in Edmonton at the time. When the chief of Enoch found out that my husband was in the home and that my kids and I were elsewhere, he ordered my husband out of the house. He told us that we could come back, that that was our home. That is where my kids and I belonged. We came home, and my husband had to find someplace else to live. It was not all that long. We reconciled, and he came home.
I know that things are not as easy for other women. I guess sometimes reconciliation is not as positive or not as amicable as mine was. I understand what women go through. I have had relatives and friends who have gone through the family violence issue.
I never considered moving back to my home community. The ties are still there. I have family at that other reserve, as I have family in this reserve, now that I am at Enoch.
Senator Chalifoux: We have had presentations here regarding women who have requested to go back to their home reserve after a marriage breakdown, a death or whatever, and the chief and council have refused them.
In your opinion, what would you advise this committee to examine in respect of women being denied the ability to return to their home reserves?
Ms. Morin: That should be addressed by the reserve from which they came. We cannot force a reserve to take back a member who has married off the reserve.
However, if you look at Bill C-31, that is another issue all together. As I mentioned, the Enoch Cree Nation has welcomed back their women who have married off the reserve or have married to another reserve — although in that instance the numbers have not been as large compared with the numbers of women who have married off reserve to non-Aboriginal males.
I cannot dictate to another reserve or I cannot dictate to Kehewin to take me back if I should choose to apply to go back there. That is something that should be taken into consideration, although things would have to be really bad in the reserve where I live today for me to want to go back to the reserve where I was born.
Senator Chalifoux: You lost the land in the 1970s with your husband's death. How has that affected your children as they have grown through the years? Has it been a positive or negative effect on the rearing of your children?
Ms. Morin: It has been a negative effect on my children because they are grown now and they have no place to build a home if they want to build a home.
My oldest son lives in the house where I lived when I first got married. I live in a house that I built in 1982. My second son was married two years ago to a non-Aboriginal girl, and had no place to build a home. There was no money to build a home. He went — under section 10 of the Canada Mortgage and Housing Corporation, CMHC — to a bank to get a mortgage to build a house.
He approached the chief and council for a piece of land on which to build this house. In face, my two older sons have pursued this matter with both the previous chief and council and the current chief and council. They are talking about compensation. They are asking for another piece of land on which they can build their homes, as compensation for the land that was taken away from them and from me. It has been difficult for them.
My children are accepting children. They are assertive; they are not aggressive. Sometimes I wish they were a little more aggressive. However, it has had a negative effect on their lives.
Senator Jaffer: Senator Joyal addressed the issue of the land code. I was concerned to hear you say that, even if there were a land code, it would be dependent on each reserve that was part of the framework. I understood that the land code is not compulsory. They still had to go through the process, so it would still take a number of years before there was any kind of relief for women.
Have you heard anything about how the land code provisions were working in the reserves that did start the land code?
Ms. Morin: Frankly, I am not sure which two or three of those First Nations have developed their land codes. The First Nations communities that have embraced the First Nations Land management act need to establish and put in place their land codes within a period of 12 months from the time the land code takes effect.
As I understand it, every First Nation must come up with their land codes. They could be much different from the next First Nation's land codes. Had I had more time to research, I would have looked into which of those reserves do have their land codes in place so that I could give an example today.
Senator Joyal: I want to understand this clearly. We will have to make recommendations to the Senate. Then we hope, if our recommendations are sound and right, that the government will introduce legislation. Mind you, our colleagues can introduce legislation in the Senate and that might be a way to address the issue quickly.
I wish to return to one of your comments. You triggered my question when you said that you could not go back to your original band, the one where you were born, once you got married to a member of another band upon your marriage breakdown. That means that the band identity of your children is your band of marriage, am I right?
Ms. Morin: Yes, that would be Enoch for them.
Senator Joyal: However you, having married a member of another band, are put in a situation where you lost your right to return to your band of origin and claim from your original band a right to live on the reserve. That is, to have a house or a place to live. Am I right or wrong?
Ms. Morin: I am not sure if that is true. I said I did not return to my original reserve because I chose not to do so.
Senator Joyal: Suppose you had decided to go back to your original reserve because you might still have family there?
Ms. Morin: I do have family there.
Senator Joyal: In all fairness, that is the place where you might feel your roots are, your band identity, your personal family identity and that is a place where you might want to live. What would have happened then, if you had decided that? This is a marriage breakdown so you have to reorganize your life. You have to make your own decisions.
I am trying to understand the limits imposed on you upon marriage breakdown. I do not want to embarrass you; I am trying to understand, as a non-Aboriginal. How is the position in which you are put different from that of a non-Aboriginal person?
Ms. Morin: I am not sure how to answer that question. Had I made application to move to Kehewin, I do not see why they would not have accepted me back. At the same time, I would not have asked that my children be accepted back to that reserve, because their home is Enoch; their band membership is with Enoch. I might have asked to be reinstated with the Kehewin Cree Nation, where I was born, and I am sure that they would have accepted me, although I am sure that they would have allowed me to have a house. However, as I said earlier, I chose not to do that.
It is the choice of the woman. If a woman wants to make application to return to live on her home reserve, there should be provision made for that. However, if a woman chooses not to return to her home reserve, that is her prerogative.
Senator Joyal: As much as it is a woman's decision to decide to go off reserve, I am trying to understand the situation of an Aboriginal woman with young children who are totally dependent on her. If she does not have the right to go back to her parents' original band where she will have the support of her immediate family who can share the responsibility of raising the children, she is put in a far more difficult position than a non-Aboriginal woman.
Ms. Morin: There should be provision for the woman to return to her home reserve. However, that should not include her children because her children belong to another band. The mother must remember that when her children attain the age of majority they will be able to decide whether they want to belong to Kehewin or Enoch.
As a result of Bill C-31, children under the age of majority were enfranchised along with their parents. When those children became adults, they questioned why they were knocked off the band list at a time when they could not make the decision for themselves. We would probably get into that problem as well.
The Chairman: Thank you Ms. Morin, for your intervention this morning.
I welcome our next witness, Ms. McIvor, an Aboriginal lawyer whose practice focuses on Aboriginal women. Recently, she appeared before the United Nations Committee on the Subject of Aboriginal Women in New York.
Ms. Sharon Donna McIvor, Lawyer, As an individual: I apologize for not giving you a copy of my presentation ahead of time. I did write a brief and, as a lawyer, an activist and a person who does many presentations, I can write the best legal briefs. However, after reading it over, I realized that it did not reflect what I truly wanted to say here today.
I have reviewed some of the transcripts of your hearings and have noted that senators have been well briefed on the legal issues. Only two of those legal issues are relevant to this study, and my repeating those would not make it any clearer. That is why my paper was scrapped last week when I decided to talk to you.
If you wish, I will provide the committee with a written submission for your records. I also understand that this meeting is being transcribed and so you will have it in one form or another.
I am from central British Columbia. If you look at a map, you will not see my village, although you will see Thompson. I am a mother, a grandmother and a legal activist for Aboriginal women. I have a Masters at Law Degree and have completed three-quarters of my doctoral degree. I have worked on issues pertaining to Aboriginal women and equality since the time I was born. I did not recognize some of my earlier work as such but I have worked on it for a long time.
I have worked on this particular issue since 1986. I read the Derrickson case and was appalled. At that time, I decided that something positive needed to be done.
I live in Merritt, British Columbia, where I was born and raised. I live and work less than two kilometres from my birthplace.
I appreciate that you are taking our comments under advice and we hope that you will come up with some recommendations.
The government is fully aware of the problem and has known of it for a long time. I have talked to more ministers of Indian Affairs than probably anyone would want to. I did not understand the issues around changing this until I talked with former Minister Ron Irwin. He used to invite us native women to have tea with him to chat about the issues. This was back in 1991 and 1992.
One day we had a candid exchange and he told me that he understood the problem. He was a family lawyer before he became an MP. He said that he would not touch the Indian Act with a 10-foot pole because it was a political hot potato. He challenged me and said that if I wanted it changed, I would have to do it through the courts.
That was the challenge and the B.C. Native Women's Society v. Canada case was born, which you talked about this morning. That was a direct result of former Minister Irwin's challenge. Jane Gottfriedson and I — both B.C. native women — discussed Mr. Irwin's challenge and decided to proceed with the B.C. Native Women's Society case.
There was a problem with litigation. At the outset of the case, the Department of Justice kept us out of the courtroom for a long time. I have other cases on the go and for one of those I am the litigant and not the lawyer. It is the McIvor case and pertains to continuing discrimination under the Indian act. That case began in 1990 and has not hit the courtroom yet. We have spent approximately $150,000 and we are still arguing preliminary motions that keep the case out of the courtroom.
That strategy seems prominent in each of the Aboriginal equality and rights cases that we have brought forward — the issues of the cases are not litigated. There is a case in Kahnawake, involving Ms. Mary Deer, on the issue of equality and the right to reserve that has been handled through the Canadian Human Rights Commission.
However, Mary Deer ran into problems when she ran out of money and could not find anyone to help her. She finally gave up. When this starts happening with the Department of Justice, we call it "Mary Deer-ing." We say "Oh, no, they are Mary Deer-ing us again."
I just want you to know that we have tried to litigate and we are not getting to the courtroom. That is mainly the reason we fight these applications to kick us out all the time.
I also had a chat with the national chief on several occasions. Again, we are talking multiple chiefs. I recall one conversation I had with Chief Ovid Mercredi. I was explaining the situation with the Aboriginal women. He said that he did understand but they were more interested in self-government right. He suggested that if we backed off with the equality issues and let them work toward self-government, they would take care of the women's issues. He also said that he did not want provincial legislation applicable on reserve — he did not want them to have jurisdiction on reserve for the marriage laws in the province.
I agreed with him — I did not want the marriage laws to be applicable either. However, I told him that we are not asking for that. We were simply asking the chiefs to be fair — just be fair.
As you know, we still have a lot of resistance in both of those arenas. They are fully aware of what the situation is. As much as I respect the process, this might be more "Mary Deer-ing" — going before a committee to tell of a problem of which everyone is aware. Everyone who matters, who needs to change it, is well aware of it.
There is a mechanism in the Indian Act that allows the chief in council of every band to make provisions for the residence of the people on reserve and the residence for the spouse and children on reserve. I refer you to section 81(1), which allows for bylaw-making power.
We recently concluded a case in British Columbia in which an elderly woman — in her 70s right now — had lived common-law with an Indian man on one of the reserves. They had been together for 28 years when he died. They had no children together; they had separate children with different spouses. The band council gave the house that she was living in — into which she put money and improved — to one of the stepchildren who had no relationship with her. She was going to be evicted.
That is when we got involved as lawyers. We started a case on discrimination, on equality, and we almost got to the courtroom. Shortly before we went into the courtroom, they offered a deal: They would give this woman a life's estate in that house, if we discontinued. We had to decide whether we wanted to make new law here, because their land code is discriminatory; their inheritance code is discriminatory. However, we had an elderly 76-year-old woman who needed a house, so we decided to make the deal.
My point is that they have the ability to do it, and they have had the ability to do it through bylaw-making power at least since 1985. I looked at the case law, to see if there is any litigation at all. There is one case. It is a case where the band council made a bylaw under that section to not allow the non-Indian spouses of band members to live on reserve. They were successful in doing that. It was found to be discriminatory under the charter, but it was justified under section 1. The only point is, it is there and we still have the issue. There is no political will federally, and no political will within the bands to grasp this problem and deal with it.
The women's situation on reserve is appalling. I know you have heard that. I have read some of the transcripts and I know most of you are well aware of it. In my opinion, many of the reserves are run like little banana republics. There is absolute power with the chief in council. If you are not in their favour, you can forget about everything.
I want to talk a little bit specifically about this issue. I do a lot of media on this issue and therefore, women who get into trouble and have no recourse will contact me, describe their situation and ask for advice.
I will bring three cases to your attention: one out of British Columbia, one out of Saskatchewan, and one out of Ontario. I will not give you any details so you can identify them, because they have not been litigated and there may be some privacy issues.
In one, an Aboriginal man married a woman from one of the Mohawk reserves in Quebec, and the marriage broke down. He told her that she did not belong there and that she should go home. She called me and was upset and asked if there was anything she could do. As much as I hated to, I had to tell her the truth — no, there was not.
Another man, who was married for 25 years, and had minor children in the relationship, decided to go off to law school. They lived on his reserve and had lots of land — enough that they were running a cattle ranch. He went off to law school and she stayed home and took care of the ranch. She did all the work every day. He finished his law school, got his call and came home with a new woman on his arm.
He told her that it was his reserve and his land. He shoved Derrickson under her nose and told her to go home. She went home and lived in a little house with her grandmother on the reserve on which she was born.
In the third case, a man had been married for 28 years. He was chief of the band —these are all chiefs by the way. He went to an Assembly of First Nations meeting in a big city and met a woman who was hired to take notes at the meeting. He immediately decided that he wanted this new woman. He went home to his reserve and kicked his wife out.
She was down the road without anything at all. He has vehicles, more than one vehicle, a trailer, a big house, lots of land and she was walking down the road. He would not even drive her to where she needed to go, or let her take one of the vehicles. She went into the city next to the reserve, and started a case.
H went back to his band council — there are three of them: himself and two councillors — and they make a Band Council Resolution that makes it an offence for her to come on to the family property. A part of that resolution was that the local police could help them enforce it.
They had 28 years of marriage, two grown children and she had only what she walked off with. He would not allow her to take any of her personal possessions. She is a non-Aboriginal woman who comes from a large family that left her a lot of valuable possessions when they died. She inherited them and he still has them. That was in 1995 — seven years ago.
Again, the point I am making is that these situations are not rare. They know, with the Derrickson case, that the band council can make these kinds of decisions and nobody can challenge them. These are appalling cases; they are really heart-rending and it is incredibly frustrating it is to see something so wrong and not be able to do something about it.
She had a lawyer. She went to court and ended up getting part of his pension, but that was it. He was able to protect everything else because he was the chief of the band and he had the support of his councillors who were related to him.
I want to talk about Aboriginal women's place in society. We make up less than 2 per cent of the population. Among more than 30 million Canadians, there are fewer than 500,000 of us. Politically, you can ignore us forever and we would not be able to have an impact on whether or not our MPs are elected.
Our needs and the discrimination that continues against us can be totally ignored and we have very little recourse. We cannot get into the courtrooms. The Canadian Human Rights Act does not apply to us most of the time and, if we try to apply it, it takes us forever. We do not have any means of protection. That discrimination is rampant — not only on reserves but also off reserves.
The chief in council governs every aspect, including social assistance, education and housing, of the lives of the people and the lives of Indian women on reserve. They govern access to any program on reserve. I have heard from women who have tried to protest and take the matter into a human rights arena to try to get some fair treatment only to have their children's education allowance cut off as a consequence. Such actions are not overt: They do not say, "Well, if you are going to take the human rights route, we are going to take the money." They say, "You know, we are having a budget shortfall and we have to cut some people off. I think maybe your child, who is half-way through the semester, will not have a living allowance and will not have tuition come January." Not surprisingly, the women back off.
I talked to an elderly woman in her 69th year now. She says it humorously and sadly, but she says, "Well, I am glad I am a senior now. I do not have to get down on my knees and service those guys to get what I need." It is not the exception; it is the rule out there. You do it in one way or another. Women do it in that way. You want your cheque, you want your program, you want your children to have access to things that you have not been able to have access to, so you do what you have to do.
There is also an issue of safety. Many reserves are not safe for women if they are seen not to be cooperative. I will not go into the details regarding the abuse that goes on because they will not sit back and be good women and take what is coming to them without protest.
We lag behind Canada's women in many aspects of the Persons case, for instance. Women became "persons" in Canada in the early 1930s. Aboriginal people did not become persons until the early 1950s and our right to be recognized as women in our own right did not happen until 1985. To be recognized as an Indian by the Government of Canada, you had to be a man, his wife or his children. The attachment had to be to the man. With the illegitimate children of a registered Indian woman, that changed in 1951. From 1951 to 1956, if you were born as the illegitimate child of an Indian woman, you were recognized. In 1956, the legislation was changed again. If your father was thought to be non-Indian, then you were not entitled any more. There was a protest provision.
Although some of these issues were addressed in 1985, discrimination continues. I heard you questioning the earlier witness about why she could not go back to her own band. It is ludicrous to think that you cannot go back to the place where you were born. Some people cannot do that if they are deported from their homes, or whatever. It is ludicrous that here, in Canada, you cannot legally go back and live where you were born. Even if housing is available there, you are not entitled to it. You are not entitled to hold it. It does not make any sense.
That is our reality as Aboriginal women. That is our reality. The reality is, if you are married, if you are living common law, you do not have any right. You have absolutely no place to go. That is what we are looking to honourable senators to help us with. I know that you will do what you need to do.
We recently conducted a random survey of a couple of reserves in British Columbia to find out how many CPs were in the hands of women. We had someone go down and look at the register and identify the women and then talk to some of the women about how they came to have a Certificate of Possession. We found out that more than 90 per cent were not in women's hands. Only 10 per cent were in women's hands. The women who did have possession of the certificate had it because their fathers had died without a male heir. None of those certificates was obtained through marriage.
Even today, although women are members of the band, if there is a male heir, they do not get to share. We are currently involved in a case where a man died and left his property — which generates about $400,000 a year this lease payments — only to his sons. We are trying to have the will amended so that the women can benefit. There are three boys and five girls involved and he left it only to his sons.
I wanted to go on further to talk about the reports prepared by Mavis Erickson and Wendy Cornet, which you have seen. Ms. Cornet's study was commissioned by the Department of Indian Affairs and Northern Development.
I want to talk about the consultation that went on in respect of those reports. I know that they were under time constraints, but they did not talk to those of us who knew about the subject matter. If you go on to the Internet and you look at matrimonial property, my name will pop up all over the place because I have been talking, writing and doing things about it for a while. However, they did not talk to me or to my colleagues.
Those involved in the preparation of the Erickson report said they could not talk to us because we were in litigation. While those reports contain some good facts, they are deficient because those who were affected, those who know, and those who know those who were affected were not heard. None of those voices were heard. They do a focus group. If you are living on reserve, the band council has you by the neck. They can dictate whom you talk to and what you will hear.
The George Erasmus commission made provisions so people could talk to them in confidence. When we did the study across the country on violence in the home, we made provisions so people could come and talk to us in confidence. No one had to know that they were there and we did not identify them. That must happen if you are to hear the stories. I can come out and tell you because I am this big lawyer that is safe and nobody will come and try to beat me up, shoot me, rape me or kill me. I can tell you stories about what is happening.
The Cornet report addressed the lack of housing being an issue. When the governments of British Columbia, Alberta, Quebec or Nova Scotia put in their family relations acts and looked at what was a fair division of property and the issues around matrimonial home, I do not think they considered whether there was an adequate amount of housing. They did not weigh the adequate amount of housing against the rights of the women. I do not think it should be considered. It is a red herring. I know that there have been some questions around that.
I have read some of the submissions of the academics and lawyers regarding the custom land and the Charter not applying. We have been down that road a long time; we were there for the very significant section 35(4). The Land Management Act provided nothing for women, so we added that. We were actually on the go with the matrimonial property case when the Land Management Act came and we added it. We wanted to stop it. We wanted to get this issue resolved before that act came into play. They put into place that section, which took a little bit of our argument; it deflated us a little because they put it in there. We did not think they would, because they have been so resistant.
I see two provisions in the Land Management Act: the environmental protection provision and the matrimonial property division section. Note that there is a minimum standard that must be met with the environment protection, but there is no minimum standard for matrimonial property. My immediate take on it is that those trees are more important than those women; those animals are more important than those women.
We could not persuade them to insert a minimum standard. The minimum standard of the province would be fine. If they want to put something in place, put down the minimum standard of the province. The Aboriginal women should have the same standard and the same kind of protection as the non-Aboriginal women.
However, they will not do that. That is part of this thing that goes on with the chiefs and the government. Our protection and our rights are always put at the bottom.
I went to the United Nations in January. I wanted the committee members to know that Canada is not living up to its obligations as far as Aboriginal women are concerned. I spent a week talking with them. They were very interested in our issue. I was interested to realize that they did not understand what status was, until I pulled out my status card and I showed it to them. They had not seen one before. They did not realize that Canada actually registered its Indians and gives them a little card to walk around with, to identify themselves.
The bottom line is that Canada reported its compliance with the Convention for the Elimination of all Forms of Discrimination Against Women. Canada has signed on internationally with the United Nations; it presented and was questioned on its compliance. The report is very strong in its Aboriginal women's sections. I hope the honourable senators have looked at it. If you have not, I would like you to. It is the only section of the report of the committee that says that Canada is in violation of its compliance with the convention. In the other parts, they are encouraging Canada to improve in many areas, but in this regard, they say we are in violation.
You have reviewed the B.C. women's native case and the issue around fiduciary responsibility. We know, as Aboriginal women, that there are all sorts of bands out there with many concerns. Listening to the previous presenter, there appear to be bands out there that are actually concerned about this and want to do something. I do not think it is up to them to do it out of the goodwill of their heart.
Given our long history of patriarchy, the fact is that many of our communities were not patriarchal before all of this legislation was superimposed on them. Now they believe that they were always patriarchs because the legislation said that they were. It is Canada's responsibility to clean this up, in many areas. In this area, Canada needs to do it. It cannot leave it up to the goodwill of the bands or the kind of pressure that we can bring to bear, or even the courts. Canada knows that the women are suffering. It has a responsibility to do this.
If a woman is kicked out of her home on the reserve and she has no place to go because the chief and councillors are supporting her husband, she needs a provision that will allow her to apply to the court for a fair division of property, a life's estate or a certain amount of time to raise her children in their home. Such a provision would enable myself and others to help women in such situations. That would allow them to at least have the comfort that they are not like all those women who have walked down the road carrying what little they could on their backs and looking for help because they have nothing on the reserve.
I am looking to honourable senators to help Canada realize that it is Canada's responsibility to do something. They cannot wait. The B.C. native women's case is not close to being in court. The NWAC case is not close to being in court. The McIvor case, which has been on the books for 13 years now, is getting close but it is not there yet.
Senator Gérald-A Beaudoin (Acting Chairman) in the Chair.
The Acting Chairman: You said you were appalled that the courts were not able to do anything for women in Derrickson case. Was it that point in particular?
Ms. McIvor: Derrickson says that the court does not have the jurisdiction to determine who holds the land on-reserve. They can compensate for the loss of the land. For example, if your house is deemed to be worth $50,000, the court can order the husband to pay $25,000. The problem is that the husband does not have $25,000, or, if he does have it, you cannot get it. There is an issue around garnishing or transferring. You cannot get the money if the political will is not there. That is what Derrickson says. In a good percentage of cases, there is nothing but the home. Even if you are compensated, it does not help. It is the same as being ordered child payments but never getting paid. The order is on the books but there is no mechanism to get it. It is as good as not having it at all.
It seems as though you have had your day in court; you have got your order; and $55,000 later, when you still have your order, it has not helped you at all. When I say "nothing," that is what I mean by "nothing."
Senator Jaffer: You are such an authority on this subject that we are really privileged to have you here.
On a personal note, I must tell you that how you carry on is something you will have to share with us. You have been fighting this battle for women — not only Aboriginal women but women generally, for a long time. I thank you for your work.
The dilemma we have as a committee is that some people have come here and said, "Wait, we will sort it out amongst ourselves," through the land code. The AFN has come and said, "Wait. We will do it later." We have others, especially women's groups, who say that we have to do it now. Our challenge is to do something that is respectful of people and to do it fast. This is a huge challenge.
It becomes even more challenging — and where I need your help — is when you say the minimum standard would be the provincial standard. As you know, common law is not protected in British Columbia. We have heard throughout these hearings that many people live on the reserves in common-law relationships or custom law. Taking the minimum standard of the province, how do we deal with common law, because that is not dealt with in the provincial legislation?
Ms. McIvor: The custom adoption is recognized in the Indian Act and common-law or "custom" marriage is provided for in the estate provisions. There would be little difficulty in including a custom marriage in this kind of legislation. It would be a good thing to do. I know that the provincial legislation on family law is lacking in some areas. The bands could do a better job if they truly looked at their custom.
However, each time I have engaged the various chiefs, the various chief committees and those who can do something about the issue, they use custom only as a defence to continue to discriminate. They only use the custom as they want.
The big argument I had with the AFN over the Charter, including matrimonial property rights, was if you have true equality, what about the Mohawk communities, Khanawake, Kanesatake and Akwesasne? They are all matrilineal. If the men are to have the same rights as the women in those communities, it will break down the system.
I did two things here. I brought to their attention that the governing councils in all of those communities are elected, although they have the traditional longhouse councils in place, they are not recognized. They do not talk to each other.
Second, my friend and I had a chat with the clan mothers and explained the dilemma around the Charter — not the matrimonial property, but the Charter. The chiefs and some women from the Gitxsan community, which has matrilineal houses as well, basically said that, "We have had our laws and traditions in place for thousands of years. If Canada thinks that they will affect us, they have not been able to do so, because they are solidly in place. We know that there are women out there who need help. They are suffering. You go do what you need to do. Do not worry about us." That is what they told me.
Senator Jaffer: In the struggle of how it would look, would you look at us having one federal legislation or a section for Aboriginal women or for Aboriginal people being added in each province?
Ms. McIvor: I would see the federal government taking responsibility here. If we get the other layer of government in place, we will have litigation. We have litigation when the feds do it, but we will have mega-litigation around the jurisdictional issue.
Senator Joyal: Ms. McIvor, on the basis of your experience, how should we interpret section 35(4), which states the equality of Aboriginal men and women insofar as their existing treaty and Aboriginal rights are concerned?
It seems, from the witnesses we have heard, that this provision of the Constitution that applies specifically to the Aboriginal people of Canada has remained a dead letter.
Ms. McIvor: We have not litigated that one at all.
Senator Joyal: What is your interpretation of it and why has it remained forgotten in the debate?
Ms. McIvor: It is not forgotten; it is waiting. It is waiting for self-government. That is why that was put in place. The issue that the chiefs at the time were arguing was that the Charter should not apply, and section 35 gave the communities and the bands a way out of section 15 because of, again, section 25. We fought hard to incorporate section 35(4) to ensure that they could not do what they were trying to do, which was saying that if we can put it in place as tradition or as custom, we do not have to worry about equality. That is why it is there. It is sitting there, waiting.
When we negotiated last, which was in 1992 with the Charlottetown Accord, section 35(4) was on the table. We, as Aboriginal women, were at the table being very adamant that it was not to come off, and the chiefs were at the table saying, "We cannot have it there," and they were talking about not being able to use the notwithstanding clause to get rid of section 15 as well.
It is there waiting for when we need it and we come back to the table very adamantly talking to the ministers not to take it off because the chiefs can talk a good talk about custom, how they will take care of everybody and how their communities once were self-sufficient and their custom took care of everything. Our reality is that if we do not take care of these little things, we will continue to be discriminated against.
Senator Joyal: It seems to me — and I am addressing my question as much to you as to our chair — that we cannot beat them on both sides. The Canadian government is bound by the Charter and we have a fiduciary responsibility to the Aboriginal people. It cannot, on the one hand, answer to the United Nations that it is not or assuming its proper responsibility in the elimination of discrimination against Aboriginal women. The Canadian government cannot, in my opinion, refuse to act. It is a breach of its fiduciary responsibility to the Aboriginal people. Yet, when the federal government does act, it cannot be limited by a claim on behalf of the Aboriginal leadership that that responsibility to act stops at the equality level.
We must be logical here. As much as I try to understand the particular problems of each band and tradition, it seems to me that in terms of human rights, there is no tradition that can stand against them when we are dealing with the fundamental equality of individuals, their dignity and their freedom. We cannot have two sets of justice — one for the non-Aboriginal women under various provincial legislations, and another one for Aboriginal women. Aboriginal women are no less dignified than non-Aboriginal women. They have to enjoy the same level of international status and international rights as they have under the various covenants and treaties that the Canadian government has signed and that mankind has recognized in terms of women.
I ask for the interpretation given to section 35(4) to ensure that we, as the fiduciary holders of that responsibility, have a clear perception of the implications of the equality status. In other words, we have to ensure that when we define the principle, the principle applies to everyone and it is not a matter of interpretation from one band to the other.
We were told this morning by the previous witness that there are 636 bands. The interpretation of equality of women and men cannot be different from one band to the other. Equality is a principle of human dignity. A person has equal rights, whatever the sex of the person.
As holder of that fiduciary responsibility, we have to be very consequential in our definition of what we mean by the implications of that equality status. Traditionally, the courts — at least in the last 20 years or so — have been very sensitive in the recognition and in the remedial approach to the interpretation of the Charter.
As you said, the Indian Act might have imposed a patriarchal system over Aboriginal people because those living in non-Aboriginal society were living under a patriarchal society, at least in terms of matrimonial relationships. Under the so-called "responsibilities" of the father were given the overall assets of the family. As it was said here before, women who are not married had more rights to manage their own affairs. When they do marry, they lose their rights in non-Aboriginal society. To a point, through the Indian Act and through our general approach to Aboriginal society, we have imported that kind of system.
Now, through the initiative of many women's groups and the Parliament of Canada in the Charter, we are trying to reverse the situation. We have succeeded to a point. It is not yet complete, but at least we have the institutional framework to reverse that. It seems to me that we do not have it in the Aboriginal communities. Unless we legislate formally on this, I do not see the light at the end of the tunnel.
We have to give meaning to that equality status of Aboriginal women. First and foremost, that is the fundamental decision we have to take. We can then establish a system that takes care of common-law marriage, the status of children and the capacity to maintain dignity and cultural identity, which is also at stake in that context and might be different than in the non-Aboriginal society.
It seems to me the starting point is how we define the substance of the equality of Aboriginal women and men. Would you care to comment?
Ms. McIvor: I agree with you. It is refreshing to hear somebody understand what I have been trying to talk about for the last many, many years.
What Canada either does not understand or does not want to say it understands is that very point. In the cases that we have brought forward on equality — especially with the ongoing discrimination as a result of the act to amend the Indian Act in 1985 — they trot out 20 boxes of documents around their consultations with the chiefs. They say that is justification to continue the discrimination.
The people with whom we are litigating do not understand that all it is justification. They are saying it is not discrimination because we consulted and this is what they want. I should not have to agree to allow the discrimination to happen. The Charter should not allow that, be it section 15 or section 35.4. It should not allow me to make the decision whether or not I should continue to be discriminated against. It should not allow you to make the decision whether you can continue to discriminate. We should be discrimination-free as much as possible.
That is my exact point. I believe the federal government knows what discrimination is, given the years of litigation I have been in with them. I think they know what they need to do. They just do not want to do it.
If all Aboriginal women got together, we could not vote in one MP. We do not have the political clout, which is why we go to the UN and those places where, although there is no clout, a little bit of embarrassment can be created. That might help.
I totally agree with you when you say that the starting point has to be equality. It must be recognized that equality has to happen. Once you are there, I do not think the mechanism is all that difficult. We have got lots of samples across the country.
In Quebec, when the legislation around the division of property and all of that was brought in, there was a lot of protest. They were able to resolve that to a certain degree.
We have examples of that as well when that legislation was put through.
Senator Joyal: Are you familiar with the B.C. Native Women's Society case about which we spoke this morning?
Ms. McIvor: Yes. That one was Ron Irwin's challenge.
Senator Joyal: Could you expand on the concept of fiduciary responsibility of the federal Crown to Aboriginal women and how they have failed?
Ms. McIvor: They are the only group that has the ability to change the legislation.. They have delegated some of the responsibility to the band through the bylaw-making power, but it is their responsibility. You can say, "As with the land management act, we will give you the option of doing this, and then a time frame in which to do it." That is better than what is in the Indian Act.
The federal government has the responsibility to take care of the issues around the ongoing discrimination. It is their fiduciary responsibility to ensure that we have some kind of protection as well. The mechanisms that they have in place not only do not allow us to have an option around protecting ourselves; they have put mechanisms in place that diminish our ability to look for such protection.
The fiduciary responsibility rests with those who have the power and the responsibility to look after the best interests. That responsibility rests with the federal government.
The land does not even belong to us; it belongs to the Crown. They determine how we can use the land and how we can have possession. They have to do it in a way that does not harm us and that puts us on an equal footing with the others on the reservation and with section 35(4) and 15, with other people to whom we can compare ourselves.
Senator Joyal: In other words, the federal government acting on behalf of the Crown cannot order the Indian bands, chiefs or council with the capacity to end the discrimination or not.
Ms. McIvor: Right.
Senator Joyal: In other words, that responsibility is non-transferable. When the Aboriginal leadership claims that they should be settling the problem, they cannot settle the problems on matters of principle. The principle has to be the responsibility of the Crown to be maintained through the responsibility that might be handled down the road.
Ms. McIvor: Yes.
Senator Joyal: Is that your interpretation of the fiduciary responsibility of the federal Crown in relation to equality status of Aboriginal women and Aboriginal men?
Ms. McIvor: Yes.
Senator Joyal: Therefore, in any negotiation of self-government in Canada, between the federal Crown and the Aboriginal leadership, to whichever band it might be of concern, the principle of equality of Aboriginal men and women is paramount.
Ms. McIvor: Yes.
The Acting Chairman: I missed the first word.
Senator Joyal: The principle of equality of Aboriginal men and women is paramount. It cannot be legislated down.
Ms. McIvor: It cannot be delegated. It is the federal Crown's responsibility and it cannot be delegated.
The Acting Chairman: Nobody else may exercise it anyway, because it is the Crown.
Senator Joyal: Some witnesses have more or less stated that this is a matter for the First Nations to deal with. Those statements disturbed my conscience that equality of men and women could be put into question by giving to another government level the capacity to question it or not.
It is something that is fundamental to me, to the definition of our being. Mr. Chairman, it is fundamental to our report to the minister and to Parliament and to the Aboriginal community generally. I know that some are watching us closely. We must understand this clearly. If we cannot measure the importance of that principle and how it rests with the Crown, the overall way that the Crown has implemented that responsibility is called in question.
It is the right measure to come to terms with the way that the Crown is assuming its responsibility. The Crown acts through the Government of Canada. We always find ourselves in that contradictory position: The Crown, on the one hand, being the holder of the Aboriginal peoples' rights, and the government of the day being the interpreter of the kind of negotiated settlement at which we must arrive to address various problems.
The Crown is undistinguishable between the government of the day and the notion that there is an authority there to provide protection. Why? Because the Aboriginal people are in a minority position and will never be in numbers large enough to influence the government through votes or through forming the government. The best you can expect is to have an equal say in your own government, as Aboriginal people. However, in terms of the fiduciary principles at stake, you will never be the interpreter of those principles. It will be left to the non-Aboriginal government.
That is the principle of the Crown. By definition, the Crown is not Aboriginal. The Crown includes the Aboriginals, but it is not only the Aboriginals. We are trying to wrestling with that situation. It is very deep and complex, but if we understand quite clearly what is at stake, Mr. Chairman, we can make some recommendations that would alleviate the concerns that we have been hearing here around this table.
The Acting Chairman: That is what we need. That is in the report. We should speak on the two.
Senator Joyal: We have to address this in the report. It is a complex situation because it is partially if not totally abstract. On the other hand, though, there has to be a mechanism in our country to speak for Aboriginal people. There are fundamental rights, protected by the Crown, to be able to maintain the capacity of the Aboriginal people to develop the type of society in which they want to live, in a way that fundamental discrimination is addressed.
That is how have to question ourselves, Mr. Chairman. It is difficult then, to not go a step further then and say that we have to amend the Indian Act, because that is the necessary, inescapable framework to establish the recognition of the principle that we want to serve here.
You indicated that you have read some of the briefs submitted by other witnesses who have presented here. Among those that you have read, are there any with which you concur with others' recommendations relating to contemplated amendments to the Indian Act?
Ms. McIvor: No, I did not have a chance to through them it thoroughly. I flipped through them and saw a lot of things I did not like. I did not look for something I did like, to be honest.
Senator Joyal: Maybe, Mr. Chairman, our clerk would give the briefs to Ms. McIvor and maybe she could draw from them the aspects that she feels are in the right direction. We would appreciate that.
The Acting Chairman: We will have to return to this question of the fiduciary duty because it is always forgotten. However, this time we went in depth and that is a very good thing. I agree that we will have to come back to this.
Senator Chalifoux: This has been an interesting and important discussion, Ms. McIvor.
I was a member of the committee that studied the Nisga'a treaty. There were many pros and cons with regard to matrimonial property rights and the rights of women in the Nisga'a nation. I would like to hear your comments on that.
The Indian Act supersedes the human rights legislation, and that is absolutely deplorable. I am the chair of the Standing Senate Committee on Aboriginal Peoples, and I hear both sides of the debate. I hear that we have to scrap Bill C-7. I do not agree with that because I think this is an opportunity for us as Aboriginal women to demand equal rights. I would like to hear your position on that. What recommendations do you have for this committee?
I am very concerned about Bill C-7 being scrapped. Do we want the status quo or do we want to look forward with a vision for how First Nations will deal with the changes that we see coming? In our communities, our young people are disenchanted. We see the establishment of gangs and lawlessness there. What will happen when that explodes into the general community, as it will unless we do something to create a better life for the young people on our reserves?
Ms. McIvor: I had the opportunity to discuss equality with some Nisga'a women who had huge concerns about the treaty process. The biggest victory within that treaty was that the Charter of Rights continues to apply. We could not address everything, but we knew that if we had the Charter we had a mechanism for pursuing the things that we could not fine-tune within the treaty.
I know most of the negotiators. I did not agree with them in many things, but that is my nature as well. The women came to me, wanting to litigate immediately to have the process stopped. However, we decided that having the Charter was the biggest bonus, because it gave us an opportunity to re-open it another time and not throw everything out. With this situation, that is the tool that we need, and that is what we have been trying to achieve.
With regard to the issue of responsibility, when I encounter a problem, the first thing I want to determine is whose responsibility it is. If it is mine, I take care of it; if it is not mine, I say, "It is not my responsibility." The federal government has not done that very well. They have not taken responsibility for our well-being, safety and issues. They have told us time and again that they recognize our problems but that the chiefs do not want certain things done.
What is Bill C-7?
Senator Chalifoux: That is the governance act.
Ms. McIvor: Yes. I always have difficulty with delegation. I have seen many negative things happen with the delegation of power. When you have a power base, as opposed to a responsibility base, there is a lot of abuse. That is my main concern with the First Nation's governance act. The people who agree with it see it as a power base, and that is not a good thing.
Senator Chalifoux: Therefore, you do not agree with delegated authority?
Ms. McIvor: Not to the degree that we have experienced it.
The Acting Chair: Is it delegation, first? I am not too sure. You raised the point a minute ago that the Indian Act is setting aside this question of application of a principle. I do not think so. I am not a fan of the Indian Act the way it is written, but how can you say that a statute like that may set aside the application of the Charter of Rights and Freedoms or some other principle?
Ms. McIvor: It cannot do it.
The Acting Chair: We cannot do it, I am sure of that, but did you say that it is setting aside?
Ms. McIvor: No, absolutely not. I am saying that the federal government has the responsibility for equality and they cannot delegate that responsibility. However, with the delegation under the Indian Act, the land management act and the First Nations government act they are attempting to do that.
The Acting Chair: Under our constitutional system, delegation may be done only to a body that is inferior to the party that is delegating. We cannot delegate anything to the provinces, but we may delegate things to a body that is less than a province. This is clear cut.
Senator Chalifoux: If Bill C-7 does not pass, we remain with the status quo, which is the original Indian Act. I agree that it is very discriminatory against women and children because it is silent. What would you prefer? Would you prefer to begin making amendments to it to begin the evolution of Aboriginal governance, or would you rather have it scrapped?
Minister Nault is the first to attempt in many years to touch the Indian Act. Ron Irwin said that he would not touch it with a 10-foot pole. We have a minister now who is at least attempting to look at it and give us a better understanding and a better position for dealing with the First Nations.
Ms. McIvor: Like the First Nations governance act and the land management act, the Indian Act, it is a mechanism to deal with some issues. The federal government must quit sitting on the fence with regard to equality. The government says that although the Charter and section 35(4) say that we are equal, it comes into conflict with custom. The government has to stop saying that. Equality is paramount and it must recognize that. That is the message they must give to the chiefs and councils. The chiefs and councils use their power however they can. Someone has to rein them in and say that there are constraints on the power they have had for the last 30 years. This is my only issue.
I have read the proposed First Nations governance act and I have some concerns with it, as many people have. I have been trying to make one point for many years: As long as there is section 91.24, the federal government has the ultimate responsibility and fiduciary duty to make sure that we are not raped, killed or thrown off the reserves, unless it is allowed to happen to all of the other women in Canada, too.
The Acting Chairman: I recall that when we dealt with the Nisga'a issues, we handed over a great deal of power. As a matter of fact, if I am not mistaken, we gave paramountcy to the Nisga'a Nation.
I still have grave doubts about that because paramountcy is either provincial or federal. I cannot see how the federal authority or the provincial authority may waive paramountcy in the division of powers. Now that it is done, it may be challenged before the courts, but we shall see. I have great difficulty with that.
Senator Joyal: One point should be stressed: the Crown does not delegate power to Aboriginals, Metis, Inuit or Indians. The Supreme Court of Canada recognized that Aboriginal society pre-dates non-Aboriginal society. Before the arrival of Europeans, they had a form of government, social organization or political organization. Indians were not conquered — they did not surrender. They maintain their capacity to rule and govern themselves and that is the fundamental principle of self-government. The Supreme Court has recognized that.
However, the Crown has a fiduciary responsibility to maintain the fundamental rights of Aboriginal men and women. It is incumbent on the Crown to ensure that, when self-governance is implemented, it is in full respect of basic, fundamental human rights. The Crown never yields that responsibility, even though there may be full recognition of — as the acting chairman said — self-government and even paramountcy, such as in the case of the Nisga'a Treaties. The principle of equality remains over and above any of the governments of the day or any paramountcy. Paramountcy is not a scapegoat to discriminate. That has not been clearly understood to date.
As the acting chairman appropriately said, it is through the representation of Aboriginal women that they want to be protected by the Charter. I would be reluctant to implement legislation that would enshrine self-government for an Aboriginal nation, or for an Aboriginal band, without having that fully recognized. It is the paramount duty of the Crown to maintain the principle of equality.
There cannot be a delegation of capacity to discriminate. There is no such power. The only responsibility that exists is the principle of equality of men and women. We all share that fundamental responsibility and it is so important. There are many notions and concepts at stake in this issue because it deals with the entire Aboriginal structure of governance. We must be precisely clear where we draw the lines in this matter. It is important to understand that well.
Ms. McIvor: The issue has been discussed at meetings in 1983, 1984, 1985, 1987 — at Meech Lake and at Charlottetown. Self-governance and the 91 and 92 powers were squarely on the table but we were never able to resolve it.
It is the responsibility of the federal government to ensure that, no matter which level of government is being dealt with, equality protection is in place with an enforcement mechanism. That is missing.
The Acting Chairman: The discussion is fascinating, yet we are verging on another issue that is somewhat outside the protection of women for the moment, as far as I can understand. This has been a good debate and it is on the record.
Thank you for your most interesting comments. Your experience is great and we have enjoyed your testimony.
The committee adjourned.