For most Canadian individuals undergoing a breakdown of their conjugal relationship or on the death of a spouse or common-law partner, there is legal protection to ensure that the matrimonial real property assets are distributed equitably. Such is not the case, however, for couples living on reserves governed by the Indian Act. For them, relationship breakdown or the death of a spouse or common-law partner could mean insecurity, financial difficulties or homelessness.
The reason is simple: the Indian Act does not address the issue of matrimonial real property rights and provincial/territorial laws relating to this issue cannot be applied on reserves. The result is a legislative gap that affects everyone living on reserves, particularly women and children.
With the introduction of the Family Homes on Reserves and Matrimonial Interests or Rights Act, the Government of Canada is taking concrete action to address an unacceptable situation and further its ongoing commitment to ensure that people living on reserves have similar rights and protections as other Canadians.
This bill was developed following a comprehensive consultation process which included collaboration with the Native Women’s Association of Canada (NWAC) and the Assembly of First Nations (AFN). The consultation process was overseen by a Ministerial Representative, Wendy Grant-John, who recommended a legislative solution.
After undertaking nationwide consultations and hearing from First Nation members, leaders, regional and national organizations, as well as the provinces and territories, the Ministerial Representative facilitated a consensus-building process. Some shared principles emerged as priorities, and formed the basis of the legislation. These included agreement on the urgent need to remedy this situation, the need to balance individual rights and the collective rights of First Nation communities, and the need for Canada to be able to recognize First Nation laws over matrimonial real property.
Over the summer and early fall of 2007, the federal government shared a draft legislative proposal regarding on-reserve matrimonial real property and sought feedback from the AFN, the NWAC, the Ministerial Representative, the provinces and territories, and the First Nations Lands Advisory Board. All of those involved in the process were given opportunities to share their views and concerns. Their input and feedback resulted in significant improvements to the bill.
As a result, the legislation balances individual and collective rights and includes a substantive federal regime for matrimonial interests and rights as well as a mechanism for courts to apply First Nations’ community-specific matrimonial interests and rights laws.
The current bill builds on the version that died on the Order Paper with dissolution of Parliament in March 2011. The following changes have been made to address some concerns expressed by First Nations and further support them in developing their own laws:
The provisional federal rules will apply 12 months after the Act comes into force to any First Nations who have not enacted their own matrimonial real property laws under this legislation with the exception of First Nations under the First Nations Land Management Act or comprehensive self-government agreements. This will give First Nations the time to develop and approve their own laws before the federal regime will apply.
Once in force, the federal regime will fill the legislative gap on reserves where there are no First Nation laws in place and until First Nations develop their own community-specific laws on matrimonial real property.