Mr. Brian Pallister (Portage—Lisgar, CPC)
moved that Bill C-289, An Act to amend the Indian Act (matrimonial real property and immovables), be read the second time and referred to a committee.
He said: Mr. Speaker, I appreciate the opportunity to discuss the bill in the House today.
Leona Freed is a friend of mine whose ex-husband physically abused her. However, she had three children so she stayed with him for five years before she finally walked out. For many women, finally leaving the abuse they endured marks a new beginning for them. Assets in family law court are divided equally and a judge makes the call on support issues.
However, that was not the case for Leona. Leaving her ex only sparked bigger problems. Family law did not apply in Leona's case and it still does not for many other women like her because of where the abuse took place, which was on a native reserve called Hollow Water, a couple of hours north of Winnipeg.
No one was there to protect Leona, not even the law. Only a handful of Canada's 600-plus reserves have established matrimonial property laws. On our largely patrimonial Indian reserves, that literally means every man for himself.
When a marriage dissolves, there are no rules to provide fairness or protection to the vulnerable, most often the female partner. Provincial codes apply only off reserve. Rules differ somewhat by province but at least there are rules in place, rules that guarantee rights are protected.
The federal government has jurisdiction on Canada's reserves but the Indian Act is silent on this issue and so we have a problem, or at least aboriginal women have a problem and therefore we in this place should concern ourselves with that problem.
When their relationships break down, they are caught in a legal no man's land where no woman should ever have to tread.
Is this a new problem? No, it is not. Manitoba's aboriginal justice inquiry recommended action on this issue back in 1988, as did numerous other studies, including but not limited to: the monumental Royal Commission on Aboriginal Peoples in 1997; the 1998 United Nations Committee on Economic, Social and Cultural Rights identified the lack of matrimonial property rights for aboriginals and beseeched us to act here; the interim report of the Senate Standing Committee on Human Rights in 2003, “A Hard Bed to Lie In: Matrimonial Real Property on Reserve”, called for immediate action; and, in 2005 the House of Commons Standing Committee on Aboriginal Affairs and Northern Development recommended that action take place as well.
The Indian affairs minister and the government has commenced a consultative process with the cooperation of the Assembly of First Nations and the Native Women's Association of Canada. This is admirable, as have been all previous reports, studies, hearings, commissions, consultations, panels and committees. Unfortunately, none have resulted in any action and the injustices faced by Canadian aboriginal women endure. As well, despite the minister's good intentions, it is quite possible that other factors, such as another federal election, will result in further delays.
This is an issue of interest to columnists. Just this week there was a column in the Globe and Mail. In reference to the consultations, John Ibbitson said:
|| The most we can reasonably hope for is some incremental progress that the next government will pursue, leading to real reform some time down the road. What experience suggests is that failure will follow failure in unbroken succession.
There is justifiably some doubt as to whether action will actually occur as a result of the consultations. Bill C-289 is an attempt to change that inaction into action. The bill would extend provincial matrimonial property codes to reserves and provide interim rules until the federal government acts or until first nations develop their own charter-compliant codes. In other words, the bill would l put the rule of law into place where it does not currently exist.
This is exactly the measure unanimously recommended by both the Senate and House committees and yet some will argue for further delays. Detractors of the bill will argue that the issue is complicated. They are quite correct. The complexity argument has long been used to undermine aboriginal equality and human rights. Surely, putting an end to the personal suffering experienced by aboriginal Canadians should be sufficient motivation to act.
Certainly the Winnipeg Free Press thinks so. An editorial on October 16 stated:
|| The practicalities of imposing the law are complex -- many reserve residents live below the poverty line and do not have access to courts or lawyers. But it is high time First Nations men and women had the same basic claim through law granted other Canadians when marriages fail. It may be that decades of legal disputes and years of study are not enough for [the member for Winnipeg South Centre]. Native people have been waiting for such a law for too long.
That is its view and it is mine.
Certainly some first nations chiefs covet the control that now rests with them in the absence of matrimonial property laws. They argue that they are best positioned to make asset allocation decisions in the collective best interests of band members. But many other leaders know that formalizing and depoliticizing these decisions is in the best interests of individuals and of chiefs and councils. In spite of this, some want to play jurisdictional ping-pong with this issue. They would argue that the community should establish its own codes. I would say this in response.
First, this bill respects first nations' governance aspirations. It provides interim protections until communities can do just that, until communities can decide how they wish to proceed.
Second, this is not a new issue. This issue has been around the reserve for years and yet, very few have developed matrimonial property rules. Without action, aboriginal people, in particular aboriginal women, may wait many more years for justice.
Third, why reinvent the wheel? A number of first nations leaders I have spoken to recognize and have said they have many other priorities they have to deal with: water quality, economic development, social problems. They have limited resources. Using and enforcing provincial codes on an interim basis, or even perhaps permanently as some bands have said they would like to do is both cost effective and the right thing to do.
Some chiefs and councils are currently pushing for exemptions to provincial smoking bans. Certainly we know of cases in Manitoba and Saskatchewan and there are others I am told. In particular, this is relevant to gambling ventures that some of the bands have under way. These bands will naturally be concerned about the jurisdictional optics of accepting provincial codes in one category while opposing them in another. I would urge these leaders to consider the optics of prioritizing the equal rights of their band members beneath gambling profits. That is not a pretty optic.
This week's The Hill Times contains an article by Grand Chief Phil Fontaine in which he said:
||--after a decade of research, Harvard University found that it could not point to one example of sustained development that, “did not involve the recognition and effective exercise of tribal sovereignty: the practical assertion by tribes of their right and capacity to govern themselves.
That is something many of us here support. But progress towards aboriginal self-government has been hindered by widespread concerns about accountability. These concerns are fuelled by stories of misspending, abuse of power and the often repeated examples of social malaise on reserves. These concerns exist both on and off reserves and these concerns are shared by both aboriginal and non-aboriginal people. The question is how to address these dysfunctional governance problems.
Mr. Fontaine went on to say, “Ultimately, authority spreads from the people”. But does it, can it, when people are afraid to speak up? The absence of property rights among aboriginal people hinders their willingness and ability to speak up when they see wrong being done, or when they experience it firsthand.
And rightfully, many aboriginal women will stand in the way of self-government unless and until their rights are protected. They and all Canadians need to feel confident that there are checks and balances in place to offset any potential abuses of power by community leaders. Establishing matrimonial property rules on reserve is in the best interests of accountability because it replaces a decision making process which can be discretionary and arbitrary with one that is clear and is non-political.
Sovereign nations cannot exist without sovereign individuals. Five hundred thousand aboriginal women confident of their rights may be able to achieve what 5,000 federal bureaucrats will never achieve: better governance on the reserves of this country; more accountable governance on the reserves of this country.
I would ask members of Parliament, on behalf of the Canadians they represent, to support this bill when it comes before the House early in the new year.
When she was fighting for her children and her property, Leona Freed was standing alone. She was standing unprotected. This is our opportunity to stand with Leona and thousands of aboriginal women like her and acknowledge the matrimonial property rights of aboriginal people. With the passage of this bill, we would be standing together to protect and defend Canada's aboriginal women.
Hon. members may ask why I bring this forward when the government has already initiated a consultation process. I have been fighting this issue for a long time. I have travelled to over 100 first nations communities in my capacity as the critic when in opposition. I have heard firsthand the tragic stories, as I know other members of the House have as well, of hardship and of heartbreak directly from the people who have experienced those hardships, from the women affected, women who have been abused, women who have been thrown out of their homes, women who have been forced off of their reserves. As we debate this bill, these problems do not stop; they continue.
In a society where too many people claim unjustified victimhood, aboriginal women are real victims, victims of an intolerable inequity, a contravention of the equality rights in our charter, a contravention of section 35 of the Constitution Act.
I submit to my colleagues in the House that the choice for us here is clear: either we perpetuate the inequality or we end it by making this bill a reality.
Ms. Tina Keeper (Churchill, Lib.):
Mr. Speaker, as a Cree first nation woman from the Norway House Cree Nation and on my maternal side I am from the Muskrat Dam First Nation, I feel especially privileged to participate in the second reading debate of Bill C-289 sponsored by the member for Portage—Lisgar.
The objective of this bill is to amend section 90 of the Indian Act which focuses on matrimonial real property and immovables, insofar that it would extend the application of provincial matrimonial property law to include reserve lands.
Matrimonial real property describes the family home and the land upon which it is situated, and provincial laws determine how to divide the property in the event of a marital breakup or divorce.
At face value it sets out to carefully address a delicate matter. Instances involving conflicts in regard to matrimonial real property do, without question, affect all Canadians and, of course, first nations citizens as well.
This bill however seeks to amend a portion of the Indian Act and, therefore, I trust that my parliamentary colleagues will lend their attention to the complexities that surround Bill C-289.
The urgency to address matrimonial real property on first nations is by no means a recent issue. Over 20 years ago the legislative gap was brought to the fore by the Supreme Court rulings of Derrickson v. Derrickson and Paul v. Paul. The result of these rulings was that provincial and territorial laws relating to the division of matrimonial real property, upon marital breakdown, do not apply on reserve lands.
This is an issue that has been explored, as my colleague mentioned, in many reports and in the Standing Committee on Aboriginal Affairs and Northern Development. In June 2005 the committee released a final report entitled “Walking Arm-In-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property”.
Since the report was finalized, the Native Women's Association of Canada, Indian and Northern Affairs Canada and the Assembly of First Nations have sought to seek a resolution on matrimonial real property.
I wish to remind the member for Portage—Lisgar that there are key considerations. First, there are aboriginal and treaty rights. The courts have affirmed aboriginal and treaty rights over reserve lands and, accordingly, they are protected by subsection 35.(1) of the Constitution Act. This is the fundamental starting point for discussions to address the legislative gap.
Recent court cases have confirmed that the federal government cannot unilaterally proceed with enacting legislation that has the potential to infringe on aboriginal and treaty rights or affect aboriginal interests without first consulting first nations.
There has been judicial recognition of first nations jurisdiction over land use on reserve lands. Additionally, in respect of the inherent right to self-government, there must be recognition of first nations jurisdiction over family law matters. To do otherwise infringes on the rights of first nations to be self-governing, as recognized by the Constitution of Canada.
Additionally, in May 2005 an agreement was signed by the Assembly of First Nations and the previous Liberal government of Canada. This agreement is known as the “First Nations-Federal Crown Political Accord on the Recognition and Implementation of First Nations Governments”. It laid a fresh framework for a collaborative federal policy development process that would guarantee first nation participation.
Bill C-289 makes absolutely no mention of these essential conciliatory processes and legal mechanisms.
Given the past and present hardships experienced by Canada's first nations, I think it would be considerably counterproductive to proceed any further on a bill that was not the outcome of a successful, cooperative and collaborative effort.
If indeed it is the intent of the member to address critical issues facing first nations women and children, then I find it difficult to understand why the member would not have supported the motion in this House put forward by the member who represents the Desnethé—Missinippi—Churchill River riding to honour the implementation of the Kelowna agreement, entitled “First Ministers and National Aboriginal Leaders Strengthening Relationships and Closing the Gap”. It was reached between the first ministers of this country and national aboriginal leaders, including the Native Women's Association of Canada, the Assembly of First Nations, the Inuit Tapiriit Kanatami and the Métis National Council.
The Kelowna accord was a first step which would have provided over $5 billion to address critical issues affecting first nations women and children, including the day to day urgent needs in: housing, safe drinking water, education, health care and developing capacity in the health care field, economic development, and addressing governance structures which is absolutely essential for aboriginal people to move forward in self-determination. That, I might add, is a key health determinant.
The answers must come from the people themselves and earlier this year, on June 21, the Minister of Indian Affairs and Northern Development announced a nationwide consultation process on matrimonial real property. These regional dialogue sessions are necessary and they are a means toward achieving a meaningful and lasting solution.
I encourage the member to consider the impacts of attempting to supercede a process that is currently underway. In fact, I encourage all members of the House to consider how momentous this process is to involve first nations and aboriginal women in a cooperative and collaborative process with the federal government. In order to best reinforce the integrity and focus on the genuine intention of the regional dialogue sessions, and the good faith of the consultations, it is not judicious to pursue this bill any further.
Although I support the issue being resolved, I can assure the House that Bill C-289 is undermining the legal process that is currently being pursued. To reiterate and conclude my position, out of respect for the ongoing process that is currently underway between Indian and Northern Affairs Canada, the Native Women's Association of Canada and the Assembly of First Nations, I cannot find any constructive purpose in supporting this bill.
Mr. Marc Lemay (Abitibi—Témiscamingue, BQ):
Mr. Speaker, I listened carefully to what my colleague just said, and I would go a little farther than she did. First, I want to say that I agree with her completely. Still, there is something I would like to talk about.
The problem arose in 1986 when the Supreme Court ruled in two cases, Derrickson v. Derrickson and Paul v. Paul. To summarize these two cases: are assets belonging to aboriginals, assets accumulated by a couple on a reserve, seizeable?
The Supreme Court had to hand down a decision on that issue. It is written that:
|| The Supreme Court of Canada ... established the principle that because reserve lands fall under federal jurisdiction, as a result of section 91(24) of the Constitution Act, 1867, provincial laws cannot apply to modify any individual interest in reserve lands. However, compensation orders that take into account the value of matrimonial real property on reserves and the provincial formulas used for division can be used and can be granted.
I will put that in plain English. They are saying that property on a reserve cannot be seized, but that compensation can be ordered, for instance, that the wife can obtain a court ruling based on the assessed value of the couple's assets. I said the wife because in 90% of cases, it is the wife who obtains the court ruling. Take, for example, a couple that owns a convenience store on a reserve, a business that is worth a million dollars and that husband and wife built together. The marriage breaks down. The court says that no order can be made to sell assets located on a reserve, but that the value can be assessed to determine the alimony or compensation to be paid by the husband.
The problem is that no order can be made to sell assets owned by a couple on a reserve. That is where the debate stands now. That is what I said in my question for my hon. colleague just now.
His bill is well-intentioned. We would like to support it, but we cannot. Not because we are acting in bad faith, but for the good and simple reason that we have to go farther and faster than my hon. colleague's bill would.
As I said earlier, this bill only camouflages the problem. What we need is a solution. I must say, for once here in this House, a government has followed through on recommendations it received. It has just created a commission led by Ms. Grant-John, and we must let it go ahead with its work. Furthermore, the Standing Committee on Aboriginal Affairs and Northern Development has set a deadline for the project to be completed. We will not let this drag on for 15 years. Unlike the Erasmus-Dussault report, which celebrated its tenth anniversary yesterday, recommendations must absolutely be reported to the minister's office, regardless of who the minister is, by June 2007.
It is an extremely complex problem. For example, the courts cannot invoke provincial and territorial legislation to issue an order for possession concerning a matrimonial home. They cannot order the sale or sharing of a matrimonial home on the reserve in order to execute a compensation order. They cannot prohibit the sale or charge of a matrimonial home. This is on a reserve. The lack of fundamental rights and recourse regarding matrimonial real estate located on reserves has raised and continues to raise concerns regarding gender equality. This issue is of concern to a number of Canadian and international organizations, including aboriginal women's organizations, the Senate Standing Committee on Human Rights and certain United Nations agencies.
This is an extremely complex problem. The Bloc Québécois cannot support our colleague's bill, but it will do everything in its power to solve this problem. We are going to do what must be done in committee and even elsewhere, so that the recommendations that come out of the consultations currently being held by the aboriginal women of Canada and the Assembly of First Nations are implemented as soon as possible after they are presented to the government.
The Bloc Québécois believes that no one in this House is acting in bad faith on this issue. I would not want any hon. member of this House to score or try to score political points at the expense of aboriginal women. I say sincerely that this is not what our colleague is trying to do with this bill. This bill came out of a very good intention, but I would say that it is coming too soon. We do not often say that in this House, but this bill would not solve the problem. It would only raise more pressing problems, because there is a constitutional issue to address, a jurisdictional issue.
The minister, who appeared before the committee when he established the review panel to act on the recommendations of the senate committee and the Standing Committee on Aboriginal Affairs and Northern Development, said that he wants concrete solutions and, if necessary, even draft amendments to the Indian Act.
The Bloc Québécois is very aware of this situation. We are very aware of the position taken by our colleague who has tabled this bill. We are sensitive to the prevailing situation in aboriginal communities and the problems that have arisen in the absence of appropriate laws governing the division of assets and matrimonial property. However, the Bloc Québécois, and aboriginal peoples, believe that the government must take action to address this urgent situation. The Bloc Québécois reminded the government, and will continue to do so, of its obligation to consult and co-operate with native peoples on this important issue. It will continue to do so with respect to all issues that affect the lives of aboriginal peoples.
As I mentioned earlier, the Bloc Québécois is aware that aboriginal women and the Assembly of First Nations are in the midst of consultations with members of the first nations. They would prefer, and are requesting, that the bill be studied when consultations have been completed.
Of course, there will probably be another government. We do not know what will happen in the coming months. Six months in politics is an eternity. Nonetheless, we know that even if this bill is not passed by this House, there is currently still work being done that will continue to be done and that the recommendations should be tabled before June 2007. In June 2007, we will make sure they are indeed tabled and debated quickly in this House.
The Bloc Québécois believes that the government should wait for the results of the consultations being held right now by the Assembly of First Nations and the aboriginal women of Canada, in order to integrate the recommendations into the bill in question.
The Bloc Québécois, together with the elected representatives of the first nations, is asking that the debate be postponed. We would have liked that, but now there is nothing we can do about it. We have to debate. We will do so, but, unfortunately, we will vote against this bill.
I will say again in this House that I am not accusing my colleague of wanting to score political points. He raised in this House a glaring problem that we must resolve, but this is not the right approach.
Ms. Jean Crowder (Nanaimo—Cowichan, NDP):
Mr. Speaker, I am pleased to speak to this important issue but I will not be recommending that the New Democrats support the bill.
However, as the member who introduced the bill rightly pointed out, there has been excessive delay in dealing with this serious issue. It has been identified through the Royal Commission on Aboriginal Peoples, three parliamentary committees, seven United Nations human rights bodies, first nations women's leaders and the Assembly of First Nations.
It is actually unfortunate that this has been identified for 20 years or more as a very serious problem and yet we have not seen the resolution that men, women and children in first nations communities rightly deserve.
A number of members have mentioned the fact that there is a consultation process in place. I think that is really the crux of this.
In the past, we, as parliamentarians, have often gone about making decisions without the appropriate consultation in place. We have often gone about making policies and legislation without ensuring that the people who will bear the brunt of those decisions were included at the table, not just in consultation but in the decision making and in the solution identification. Oftentimes what consultation has looked liked is a very cursory conversation and then we tell people to go away while we close the doors and make the decision.
I would argue that this is such a fundamental issue for first nations men, women and children that it is critical that the people who will bear the impact of this decision are at the table throughout the process. In fact, it is that kind of philosophy that actually underpins the way the New Democrats believe decision making should be made when we are talking about first nations, Métis and Inuit people. We are talking about decision making on a nation to nation basis. We are talking about having first nations people at the table in a meaningful way so they are truly partners in this decision making process.
In a letter that came from the office of the national chief, the chief himself talked about the fact that our work would be guided by the recognition and implementation of first nations governance and jurisdiction and that the key principle of that solution had to be first nations driven. Therefore, when we have a bill that comes before the House that is not first nations driven, I would argue that we are violating that fundamental principle.
In the event that people think women are not also asking for this, the Native Women's Association of Canada is involved in this extensive consultation process that is currently underway and it is a fairly rapid process. It was initiated in June. It needs to be completed with the Assembly of First Nations and the Native Women's Association of Canada by, I believe, December 2006. Ms. Grant-John is committed to sending a report to the minister by early spring and the minister has committed to, shortly thereafter, putting legislation forward.
Surely we can wait for this process to unfold to ensure meaningful consultation does happen. The Native Women's Association is saying that it is critical for women's voices to be heard and that those who are and will be directly affected must also be involved in the consultation process over the next couple of months.
The Assembly of First Nations has put out a very good resource handbook that has good background information. I would encourage members, who have some additional questions to which they need answers, to go to the Assembly of First Nations website and check out this material because it lays out some of the concerns.
There is some concern that even if the bill were to pass that the imposition of provincial laws on first nations land may not be constitutional. Therefore, that question itself has not been answered.
We must try to gain an understanding of why this needs to be done in such a respectful way. One of the things in the handbook concerns legislative gaps on reserve. It says that while first nations have traditional laws which could help couples to determine how to divide the family home and land when divorce or separation occurs, the federal government does not recognize these laws.
Therefore, it is not that many first nations communities do not have laws governing this; it is that the federal government does not recognize some of these existing laws.
The document goes on to talk about the importance of ensuring that people's voices are heard. It recognizes the legislative gap, but it also talks about the fact that this matrimonial real property is one factor in a wide gamut of factors impacting on people's lives in first nations communities. It is part of a chronic housing shortage. It is part of poverty on reserves. It is part of the fact that many women and children do not have access to transition houses that assist families when women are involved in domestic violence.
Certainly there have been recent announcements about 35 transition houses, but there are 633 first nations communities in this land and many of the women in many of those communities will not have access to those transition houses. Again, what we have is a one-off piece of legislation in isolation of the complex issues facing many first nations communities.
I talked about the chronic housing shortage and the lack of transition centres, but I am also talking about the lack of appropriate consultative processes. They have not been in place. As I talk about consultation, I note that the courts themselves have said that consultation must be undertaken with the genuine intention of substantially addressing first nations concerns and that first nations representation must be seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action.
That is what the courts have said. In that context, I do not see how we could support the current bill before the House. It does not have that consultation process built in. If the consultation process were to take place in the context of this current bill, it would be many months before we would even begin to see a solution. In the meantime, this appropriate consultation phase that is under way will be finished, so I would suggest that we need to wait for this current process.
There are many issues that need to be considered. That is why, as the member opposite rightly pointed out, this is a complex issue. The Assembly of First Nations has identified a number of issues that need to be considered in this complex matter.
One issue is aboriginal title and treaty rights. Reserve lands are protected by subsection 35(1) of the Constitution Act. That cannot be disregarded in this.
I have spoken about consultation and accommodation previously, but I will note that any attempt to infringe upon some of the constitutional rights must be justified. I would argue that we cannot justify imposing provincial legislation without agreement from first nations communities.
There is judicial recognition of first nations jurisdiction over land use. There are collective rights versus individual rights. We need to recognize that people have different approaches to these things. My document says, “Custom allotments also form part of First Nations customary law, and it is questionable whether provincial laws can apply to this traditional form of First Nations land management of reserve lands”.
Next is judicial recognition of first nations jurisdiction over family matters. Again, many first nations have laws that already are in effect around matrimonial breakdown. Those laws must be considered when we are looking at solutions in first nations communities. This relates to the federal recognition of first nations jurisdiction over family law.
I have touched on just a few of those issues, but I think these are the kinds of things that demonstrate the complexity of this issue. Various bodies, as I have pointed out, have taken a run at this, but nobody has actually taken on the necessary hard work to develop a solution.
When we talk about this consultation process that is under way, I note that it does not mean just gathering more information about what the current state of affairs is. The current consultation process that is under way will result in recommendations for solutions, so it is not just fact gathering. It is actually solution gathering. That is an important piece of this very complex puzzle.
When we talk about solutions, we must recognize traditional values. We must recognize the protection of aboriginal treaty rights. There must be no abrogation or derogation of collective rights, protection and preservation of first nations lands for future generations, strengthening first nations families and communities, recognition and implementation of first nations jurisdictions and community based solutions.
I suggest that members of the House should vote the bill down. They should be supporting the good work that is being done in first nations communities from coast to coast to coast.
Mr. Rod Bruinooge (Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians, CPC):
Mr. Speaker, I would like to acknowledge my colleague, the member for Portage—Lisgar, for all the efforts he has taken on this issue and continues to take on the important work for aboriginal families throughout Canada.
I rise today to discuss the bill before the House, Bill C-289, a proposal to address the issue of on reserve matrimonial real property through amendments to the Indian Act. Although I fully support the goals of Bill C-289, I cannot support the bill in its present form.
The issue of on reserve matrimonial real property, frequently referred to by its acronym MRP, is a fundamental injustice that tarnishes Canada's democracy and creates suffering for a number of first nations women, children and families. The government recognizes the pain resulting from this issue and it is determined to resolve it.
To enact Bill C-289, however, would be a mistake. The bill is not the product of a broad collaborative effort required to implement an effective, lasting solution. To develop an effective solution, we must understand and appreciate the complexities of this very serious issue. We must also ensure that we have a solution that reflects the concerns and input of all those who will be affected, in other words, first nations communities across the country.
Matrimonial real property is a legal term for a relatively simple concept. It refers to the fixed assets used for family purposes that are owned by one or both spouses. For most Canadians, matrimonial real property includes a house and the land on which it sits. In the event of divorce, the division of MRP is often contentious but legally straightforward. Provincial and territorial laws are in place to protect the MRP interests of both spouses, as per their jurisdiction under our Constitution. In the event of divorce, for example, one spouse cannot sell the family home without the consent of the other.
Aboriginal people living on reserves, however, face an entirely different legal reality. Federal legislation, the Indian Act, defines the status of reserve lands, and the Indian Act is silent on the issue of matrimonial real property on reserve.
This is not just a bureaucratic interpretation. The Supreme Court of Canada has twice ruled that provincial family law cannot alter any interest in MRP located on reserve lands. These rulings have determined that since reserve lands fall under federal authority, only federal law can enable transfers of on reserve matrimonial real property. Unfortunately, no federal law addresses MRP. This leaves a large loophole in Canada's body of legislation.
The loophole has a direct affect on aboriginal women and children seeking to escape failed marriages and few of them are even aware of the problem until it is too late. In all too many cases, an aboriginal woman has little choice but to leave the family home and ultimately her community.
Judges are usually powerless to intervene because they lack the legal authority to protect or transfer the MRP interests of spouses on reserves. Even in the most extreme cases, such as those involving spousal abuse, physical violence or custody disputes, no court can order a change in possession of an on reserve family home. The courts cannot order the sale of the family home, for instance, or prevent a spouse from selling or mortgaging the family home without the consent of the other spouse, regardless of the severe repercussions these actions might have.
This legal loophole often has devastating consequences such as homelessness, poverty and despair. The effects are serious, with a steadily growing number of aboriginal people marginalized from mainstream society, denied access to the opportunities the rest of us take for granted.
I believe all members appreciate that the current situation is intolerable. I hope they will join me in commending the good intentions behind Bill C-289. I also hope they come to recognize the value of the solution contained in the bill disappears quickly without the necessary consultation and input required for an effective and lasting solution.
Bill C-289 proposes to amend the Indian Act so provincial law applies to MRP cases, although appealing such an amendment would effectively transfer a significant burden upon the provinces. Have the provinces indicated a willingness to accept this burden? Can we expect the provinces to assume the additional legal aid and enforcement costs associated with MRP? Unfortunately, we do not know the answers to these questions because the provinces have failed to be consulted about Bill C-289. This lack of consultation is the substantive flaw in the bill before the House today.
The government is committed to finding a solution to MRP that works for everyone, for provinces and territories, for first nations communities, for aboriginal women and children and for all Canadians. To design and implement an effective solution will necessarily require the input of all parties. I am pleased to report that a collaborative process was introduced by the minister earlier this year.
As we are speaking, these consultations with all stakeholders are taking place across the country. These sessions examine and analyze potential legislative solutions to MRP. The sessions were designed and are led by officials from Indian and Northern Affairs Canada, side by side with representatives of the Assembly of First Nations and the Native Women's Association of Canada. I have every confidence that this cooperative approach will lead to a lasting solution, a solution to a problem that we can all agree has remained unresolved for far too long.
Earlier this year, we were fortunate enough to retain a talented individual, Wendy Grant John, as ministerial representative on these consultations. Ms. Grant John is a former chief, a successful entrepreneur and a skilled negotiator. She has agreed to work with all parties to seek consensus on a solution to the issue of MRP. Should such a consensus not emerge, Ms. Grant John will recommend an appropriate course of action.
This government's actions on MRP are consistent with the strategy it has devised to address the full range of problems that face aboriginal people in our country. The strategy is based on taking immediate action on quality of life issues such as drinking water, supporting women, children and families in education, promoting economic development, job training, skills and entrepreneurship and revamping the legislative framework to address the archaic and tangled legislation and funding agreements that define the vast majority of relations between government and first nations, which clearly are not working. We are also speeding up the process for conducting treaty land entitlements, additions to reserves, comprehensive and specific claims.
The government will work collaboratively with aboriginal groups and the provinces and territories to design and implement better legislative frameworks and to accelerate negotiations and achieve fair settlements. Our commitment is evident in a number of areas where action is already under way, such as MRP and our plan on first nations water. In addition, in our first budget we invested more than $3.7 billion over two years in support of aboriginal peoples and northerners, more than any previous budget.
I am convinced that we are ushering in a new era of prosperity and social justice for aboriginal peoples. We are committed to working closely with aboriginal groups to design and implement appropriate solutions. To succeed we will consult and collaborate and not take unilateral action.
Bill C-289 calls for the government to act on its own without the consent of these stakeholders. I encourage my colleagues to support the government's collaborative approach to MRP and join with me in voting against this bill.
Hon. Larry Bagnell (Yukon, Lib.):
Mr. Speaker, I am pleased to speak to this bill. I congratulate the member for Portage—Lisgar for bringing it forward and the members who spoke to it, especially the member for Churchill.
It is good that we are debating this bill because, as all members have said, it concerns a very serious problem that needs to be dealt with. The government is working on it. The people at Indians Affairs and Northern Development have been working very hard for years on this very complex problem. Its complexity makes it a bit perplexing that this bill is before us. With such a complex issue one could not possibly deal with it seriously and fairly in a one page bill.
There are a number of aboriginal groups in Canada and the bill talks only of some very specific concerns on reserve. There are a number of aboriginal people in regions of Canada, for instance, virtually all of them in my riding, where there are no reserves. How would they be dealt with under this law?
To understand the depth of the problem, this is a great struggle between two rights which are guaranteed in the Constitution. We have spent the last three or four years debating the tension between the two rights, the rights of religious freedom and the rights of equality. Once again we have an almost intractable problem. There is a tension between aboriginal rights in section 35 and individual equality rights in section 15. That is why the issue is so difficult.
In Canada over the years we have been building very sensitive relationships with first nations people. We understand that they have inhabited this country for thousands of years. They have systems and laws that work quite effectively. We should respect those laws and rights. They may clash with the visions of society and the types of rights that we see. There is a tremendous tension and it requires consultation which the government just said it is undergoing, which is excellent. There needs to be a detailed consultation to come up with a plan that will deal with all the complexities, some of which I have mentioned.
To think that every complex problem has a simple solution is wrong. We have to go through all the different variations. We have to take into consideration the various aboriginal rights, treaties, land claim agreements and self-government agreements, which is the process that the government has under way.
I find it a little strange that a bill would be brought forward by a government member on an issue that has already been decided on twice by the Supreme Court and is basically unconstitutional. One cannot override aboriginal rights, rights dealing with family law on reserve, as outlined in the Indian Act, by a province or territory. I am surprised that when the government started the consultation the party opposite did not pick another bill to move up on the order of precedence so it could bring forward one of its other priorities. I am curious as to how the bill passed the legislative counsel in the House of Commons and how a bill that would not fit under the Constitution was allowed to go forward.
It is good that all parties are thinking about this issue, are directing their attention to it and are willing to cooperate in the process. One can imagine the pain that all women at some point in history have undergone by not having equal rights and the right of equality of possessions in matrimonial affairs. It can cause great problems. They often are left with children, which can cause great levels of poverty and an even more stressful situation because of the responsibilities that a woman has to deal with alone after a breakup.
It is certainly valid that we dedicate our resources to this issue. The last government was working on it intensely, and I am delighted that the present government is as well. I hope that when members of the House come up with recommendations, they will make sure that it is a high priority and that we deal with it quickly in order to come to some resolution of a problem which for so many years we have all agreed has to be dealt with.
I just want to close by mentioning what the parliamentary secretary said about the government's enthusiasm for moving on with things. I certainly hope its enthusiasm improves the treaty process--