Statement made on 01 November 2011 by Senator Lillian Eva Dyck
Hon. Lillian Eva Dyck:
Honourable senators, I rise today to speak to Bill S-2, An Act respecting family homes situated on First Nations reserves and matrimonial interests or rights in or to structures and lands situated on those reserves. I would like to start off my remarks by stating that I thank the Honourable Senator Jaffer for her excellent speech and that I agree with her in principle.
Division of matrimonial property is an important issue that affects the everyday lives of First Nation Canadians living on reserves, and I agree that the intent of Bill S-2 is good. This is not the first time this chamber has seen the bill, and while it has been changed in some significant ways, there still exists a substantive problem in that there is a distinct possibility that non-First Nation people may claim ownership of reserve land, though under section 91(24) of the Indian Act, reserve lands are supposed to be lands set aside only for Indians. In other words, the collective rights of a First Nation band to its reserve lands may be compromised by Bill S-2.
What really puzzles me is that the solution to this problem is known, and yet it has not been incorporated into the bill before us. The solution is clearly outlined in the 2007 report on Matrimonial Real Property Issues on Reserves submitted by the Ministerial Representative, Wendy Grant-John. However, the report is massive — about three centimetres thick. Perhaps, given the complexity of the MRP issues and the focus on protecting vulnerable women and children on reserves, the way to preserve the collective rights of a band to the inalienability of reserve land was somehow lost in the mix.
First, I would like to speak to the reason why we need this bill. The issue that is really driving the implementation of proposed MRP legislation on reserves is a difference of rights between individual First Nation Canadians on reserves and other Canadians when a marriage or a common law relationship breaks down and matrimonial property must be split up. This inequity is often illustrated by the scenario of a First Nation woman and her children locked out of their home by an abusive partner. She is perceived as being helpless and powerless. Without minimizing her dire situation, it should be pointed out that she does have some options though, depending on her reserve, they may or may not be very good ones.
For instance, she can get financial compensation for matrimonial property so she will not necessarily be without money. She can also utilize her band's MRP codes, which may or may not provide an equitable solution. If she lives on a reserve that has developed MRP codes under self-government agreements or through the First Nations Land Management Act, such bylaws are recognized by the federal government and are presumably fair to her. Finally, since June 2011, when the exemption of the Indian Act from the Canadian Human Rights Act ended, she can file a human rights complaint if she finds that she has been discriminated against.
Honourable senators, the First Nation woman in this scenario does have several options. Nonetheless, apparently in most instances, the options available to a First Nation woman living on reserve are not satisfactory and, more importantly, she does not have the option available to her had she and her family lived off reserve, and that is to have a court order ordering her exclusive occupation of the family home. Bill S-2 fills that gap in her available options. It gives First Nations women and men more choices when their conjugal relationships break down and matrimonial properties are divided. I support the aspects of the bill that attempt to remedy the unequal legal remedies that Indians on reserves have compared to other Canadians.
However, Bill S-2 goes too far by offering an open-ended interest in structures on reserve lands for non-First Nation individuals through the Exclusive Occupation Order provision of clause 20. This provision compromises the collective rights of the First Nation community to their reserve land. Under clause 20 of the bill, the court of jurisdiction can grant exclusive occupation of the home to a spouse or common law partner, whether the partner is an Indian or band member. It would be up to the court to determine the duration of the occupation. From the witnesses who testified during the Senate study of Bill S-4, that time period may be upwards of 10 years. Clause 25 of Bill S-2 makes it clear that exclusive occupation of the family home includes exclusive occupation of the portion of the land that is contiguous to the family home.
Honourable senators, this would set a dangerous precedent of non-Indians having an indefinite interest in Indian land.
Furthermore, the authority is granted to the court rather than to the First Nation itself. In other words, it takes away the right of First Nations to govern their own land, a critical feature of Aboriginal or treaty rights, and this may well constitute an infringement of section 35 rights.
During the Senate's study of Bill S-4, the Canadian Bar Association, the Atlantic Policy Congress of First Nations Chiefs, the Association of Iroquois and Allied Indians and Dr. Pamela Palmater all addressed this serious problem. The Canadian Bar Association stated:
We believe omitting any time limit on duration is a particular concern. It would create a life interest in the home (a beneficial interest, if not a legal interest) for non-Band members and non-First Nations.
The government argues that because there is no change in the legal interest of home and its contiguous land, there is no conflict with the exclusive occupation provisions and section 89 of the Indian Act, enacted for the very purposes of protecting real property on reserve.
Section 89(1) of the Indian Act states:
Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.
As noted by many of the witnesses during the study of Bill S-4, it would seem that section 20 of Bill S-2 creates an exemption to section 89 of the Indian Act without any reconciliation. This grave inconsistency is made even more apparent when one looks at other sections of the Indian Act that deal with occupation of reserve lands by non-Indians.
Section 28(2) of the Indian Act permits non-Indians to occupy reserve land, but the consent of the First Nation is required for any period over one year. Clearly, section 20 of Bill S-2 violates these provisions of the Indian Act.
I suggest that during committee study this issue be examined and that the committee suggest a simple amendment to limit the duration of occupation under the Exclusive Occupation Order to one year, or a requirement to get the consent of the First Nation when a non-First Nation member or spouse or partner is involved.
Honourable senators, a similar recommendation was made by Wendy Grant-John. On page 63 of her report, she recommends temporary exclusive possession of the matrimonial home because they ". . . present few if any difficulties in terms of the scope of potential infringement on collective interests precisely because of their temporary nature."
I will repeat this important aspect: She recommended temporary exclusive possession orders.
Honourable senators, the Constitution of 1982 and the Charter are supposed to protect Aboriginal treaty rights. Bill S-2 is a significant infringement of those rights in two ways. First, it allows non-Indians to obtain a beneficial land interest on reserve land. The Indian Act states that reserve lands are for the use of Indians only.
Second, the band or First Nation owns the reserve collectively, and any change to this fundamental characteristic of First Nation governance ought to be under the control of First Nations through their inherent right to self-government in accordance with the UN Declaration on the Rights of Indigenous Peoples. For these reasons, I believe Bill S-2 infringes upon the Indian Act and the Constitution.
While it may be argued that Bill S-2 is provisional in nature and thus in effect only until a First Nation develops its own MRP laws, for some First Nations that may well be many years. It is likely that many First Nations do not have the expertise or resources to develop their own MRP laws in the near future, so Bill S-2 may be impinging upon their rights for many years. Why should they risk losing their rights to parts of their reserve lands, when the way to prevent this is known and straightforward?
I urge the committee studying Bill S-2 to incorporate the recommendations made by Wendy Grant-John. In her report she noted:
. . . the debate has been framed by an assumption that First Nation people must necessarily choose between their collective rights in the land or to govern themselves on the one hand and the enjoyment of individual human rights to equality and dignity on the other. It is time for a new direction and new policies that do not insist on such a false choice being presented to First Nation people over and over again.
Such a false choice is before us now with this bill. Ms. Grant-John states in her report that she believes ". . . the recommendations made in this report reflect a balance between collective and individual rights that respects both."
How did she achieve that? She recommended the inclusion of two provisions in an MRP bill. One, to recognize the paramountcy of First Nation law and, two, another to clarify the inalienability of reserve lands.
First, on page 61, she recommended that, ". . . provisions relating to the recognition of First Nations' jurisdiction should be set out in Part I before the interim federal rules, in order to emphasize the paramountcy and preference for the operation of First Nations' jurisdiction in this area." She even went so far as to provide a sample of this on page 62 of her report.
Second, to make it absolutely clear that Indian reserve lands continue as lands reserved for Indians, she states: ". . . there should be a 'for greater certainty provision' confirming this," and on page 59 she provides an example using the wording from the First Nations Land Management Act, which states:
Title to First Nation Land
For greater certainty.
a) Collective title to First Nation land is not affected by this act;
b) First Nation land continues to be set apart for the use and benefit of the First Nation for which it was set apart; and.
c) First Nation land continues to be land reserved for the Indians within the meaning of class 24 of section 91 of the Constitution Act, 1867.
This "for greater certainty" clause is a stronger "for greater certainty" clause than is currently in Bill S-2. Specific reference to the collective interests of the First Nation community is necessary to address the potential claims of non-First Nation spouses to ownership of reserve lands after issue of an exclusive possession order in their favour.
Honourable senators, the minister's representative, Wendy Grant-John, clearly provided the solutions to recognizing the rights of First Nations to govern themselves and to the continuation of the inalienability of reserve lands. Incorporating her suggested provisions into Bill S-2 will prove to Canadians that we can protect the rights of individual members of a First Nation and, at the same time, in the same bill, we can protect the collective rights of the First Nation as a whole to self-governance and to their reserve lands.
Honourable senators, I urge you to push for amending Bill S-2 so that it incorporates the suggested amendments and the recommendations made by the ministerial representative on MRP noted above. By including these changes we will achieve the laudable goal of protecting vulnerable First Nation and non-First Nation people on reserve from unfair practices when their conjugal relationship ends; offer equitable settlement of matrimonial properties to the individuals; and, equally important, we will not infringe upon the collective rights of the First Nation community with respect to jurisdiction of their reserve lands that are set aside specifically for their use and not for others.