ARCHIVED - Consultation Process

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Title

Bill S-2, Family Homes on Reserves or Matrimonial Interests or Rights Act






Brief Explanation of Bill Content

The Family Homes on Reserves and Matrimonial Interests or Rights Act (the Act), seeks to provide basic rights and protections to individuals on reserves regarding the family home and other matrimonial interests or rights, in the event of a relationship breakdown, or upon the death of a spouse or common-law partner. The proposed legislation sets out provisions for the enactment of First Nation laws respecting on-reserve matrimonial real property, as well as provisional federal rules to fill the legislative gap.

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Rationale

The current legislative gap has been an outstanding issue for more than 25 years since the 1986 Supreme Court of Canada's rulings in Paul v. Paul and Derrickson v. Derrickson that provincial matrimonial laws affecting real property do not apply on reserves. Since that ruling, many studies and reports have been done on the issue of matrimonial real property and on the legislative gap that exists on reserves.

There has also been domestic and international pressure on the federal government to urgently remedy the situation. This has included Senate and House of Commons Standing Committee reports urging the government to take immediate action, calls for action by the United Nations Committee to Eliminate Discrimination Against Women, United Nations Committee on Economic, Social and Cultural Rights and the Commission on Human Rights, Special Rapporteur on Human Rights and Fundamental Freedoms of Indigenous People.

In the Speech from the Throne, June 3, 2011, the government made a commitment to introduce legislation to ensure that people living on reserve have the same matrimonial real property rights and protections as other Canadians. The Act was introduced in the Senate on September 28, 2011.

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Consultation Overview

Collaborative national consultations planning started in 2005 and legislation to address the issue of matrimonial real property on reserve has been in development since 2007 and before Parliament since 2008.

On June 20, 2006, the Honourable Jim Prentice, then Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non Status Indians, announced national consultations on the issue of on-reserve matrimonial real property. At the same time, Minister Prentice announced the appointment of Wendy Grant-John as Ministerial Representative on this issue, to facilitate the consultation process and report back with a recommended legislative solution.

The national consultation process was launched on September 29, 2006, by Minister Prentice, with Beverley Jacobs, then President of the Native Women's Association of Canada, and Phil Fontaine, then National Chief of the Assembly of First Nations, who were to work collaboratively with Aboriginal Affairs and Northern Development Canada (AANDC), then known as Indian and Northern Affairs Canada, in carrying out the consultation process.

The consultation process included four phases: planning, consultation, consensus building and engagement. Preliminary planning started in 2005 and to carry out consultations in 2006-2007, the Department provided the Native Women's Association of Canada and the Assembly of First Nations each with $2.7 million in funding.

The national consultations, which began in September 2006, finished on January 31, 2007 , for a total of 103 sessions at 76 locations across Canada. An intensive consensus building phase followed from February 1 to February 23, 2007. Although consensus was not reached between the three parties at the technical working group level at that time, progress was made towards shaping consensus through substantive discussions of many important policy issues and concerns.

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AANDC Consultations

The Department held consultations with, and provided funding to, a diverse range of Aboriginal organizations not represented by the Native Women's Association of Canada or the Assembly of First Nations. Individual Aboriginal organizations arranged consultation sessions with their constituents. Departmental representatives were in attendance to answer questions and clarify issues.

The Department also consulted with officials from all provincial and territorial governments, except Nunavut, where there are no reserves. Sessions included individual face-to-face meetings with officials as well as group teleconferences. Provinces and territories also submitted written submissions to the Department concerning the issue and potential legislative solutions.

Other means of consultation included the Department's website, which provided an email address, toll-free number and mailing address for receiving comments.

Native Women's Association of Canada Sessions

The Native Women's Association of Canada facilitated consultations on and off reserves with Aboriginal women across the country. Departmental representatives were present during these sessions to answer questions and clarify issues. In addition, the Native Women's Association of Canada used a variety of means, such as an online survey and a toll-free line, to gather information and hear the ideas of Aboriginal women about the solutions they believed would be most appropriate and useful in resolving this issue.

Assembly of First Nations Sessions

The Assembly of First Nations facilitated eight regional sessions with First Nation citizens and leadership. Departmental representatives were present to answer questions and clarify issues. Sessions took place in urban centers across the country and were held over two days. The Assembly of First Nations provided its constituents with similar options for giving input on the issue of on-reserve matrimonial real property interests or rights, and the means for resolving the legislative gap as did the Department and the Native Women's Association of Canada.

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Consultation Results

The consultation process provided the opportunity for First Nations and other relevant stakeholders to engage in efforts to determine a solution to the legislative gap.

Participants were presented with, but not limited to, three options for consideration:

  1. Incorporation of provincial/territorial matrimonial real property laws on reserves through amendments to the Indian Act or stand-alone federal legislation;
  2. Option 1 (above), combined with a legislative mechanism granting authority to First Nations to exercise jurisdiction over matrimonial real property; and
  3. Substantive federal matrimonial real property law combined with the recognition of a First Nation jurisdiction with regard to matrimonial real property.

Although the Department proposed these three options for legislation for consideration, most participants were more concerned with addressing related issues rather than specific mechanisms that could be used to resolve these issues. Suggestions by participants during the consultation sessions included the following:

  1. Include a mechanism by which First Nations can develop and implement their own laws respecting matrimonial real property interests or rights;
  2. Create a balance between the authority of Chiefs and Councils over this issue and First Nation community involvement in related decision making processes;
  3. Reject legislative models involving incorporation of provincial laws relating to matrimonial real property;
  4. Ensure that First Nation organizations are actively involved in the policy making process;
  5. Incorporate First Nation cultural, social and legal traditions into any solution;
  6. Develop a solution to immediately address the legislative gap for this complex issue and build on this by enabling a future review of the legislation; and
  7. Ensure that the best interests of children are placed first and foremost in the development of a solution.

Following the final consensus-building phase of the consultation process, the Ministerial Representative released her report. It provides analysis, conclusions and recommendations to resolve this issue. The report is based primarily on what was heard during consultations and at the consensus building table.

Among other items, the Ministerial Representative recommends in her report a legislative solution that will: a) provide basic protections for individual residents on reserves during and after the breakdown of the conjugal relationship; b) balance individual human rights and the collective rights of First Nation communities; c) include a mechanism for First Nations to exercise their "lawmaking responsibility" in this area, and, d) be backed by a strong implementation framework.

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Engagement on Draft Legislative Proposal

The recommendations made by the Ministerial Representative provided the foundation for the development of a draft legislative proposal which, over the summer and fall of 2007, the federal government shared and discussed with the Native Women's Association of Canada, the Assembly of First Nations, the Ministerial Representative, provinces and territories and the First Nations Land Advisory Board (assists First Nations under the First Nations Land Management Regime). All of the partners involved in this process had opportunities to raise their views and concerns.

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Committee Hearing Schedule

Since the Act was first introduced in 2008 more than 38 hours have been dedicated to debate and study of the bill. More than half of this time occurred during committee study of the bill, with 60 appearances from First Nation organizations, individuals, federal and provincial representatives, among others.

Standing Senate Committee on Human Rights

Bill S-4

Monday, April 26, 2010 (in camera)
Monday, May 3, 2010 (in camera)
Monday, May 10, 2010
Issue No. 2

Monday, May 31, 2010
Issue No. 3

Monday, June 7, 2010
Wednesday, June 9, 2010
Monday, June 14, 2010
Issue No. 4

Bill S-2

Monday, November 21, 2011
Issue No. 4

Monday, November 28, 2011
Issue No. 5

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Conclusion

National consultations on a legislative solution took place across Canada with participation from male and female First Nation members, non-members, status and non-status Indians, urban Aboriginal people, Aboriginal organizations, provinces and territories.

In total, 103 consultation sessions were held at 76 different locations across Canada.

The Assembly of First Nations and the Native Women's Association of Canada  each received $2.7 million to consult with First Nations and record their opinions, which were provided in their respective reports. Representatives from Aboriginal Affairs and Northern Development Canada were present during the sessions facilitated by these organizations.

This government also made $1 million available to organizations, both national and regional, not represented by the Native Women's Association of Canada or the Assembly of First Nations to provide input into the consultations. National organizations included: Congress of Aboriginal Peoples, Indigenous Bar Association, National Association of Friendship Centres and National Aboriginal Circle Against Family Violence. Regional organizations included the following provinces: British Columbia, Alberta, Manitoba, Saskatchewan, Ontario, Quebec, Prince Edward Island, Nova Scotia, New Brunswick and Newfoundland.

Throughout the planning and national consultation phases, a joint Assembly of First Nations / Aboriginal Affairs and Northern Development Canada / Native Women's Association of Canada Working Group, facilitated by Ministerial Representative Wendy Grant-John, convened 19 meetings, during which participant organizations planned the process, updated each other on activities and discussed issues of concern. The Ministerial Representative participated in over 100 meetings to facilitate Working Group discussions, to seek information and to inform First Nations across Canada about the issue of on-reserve matrimonial real property.

All of the partners involved in this sharing process had opportunities to ensure their views and concerns were raised. Their input resulted in significant improvements to the proposed legislation.

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