ARCHIVED - Self-Government Agreements and On-Reserve Matrimonial Interests or Rights
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In 1995, the Government of Canada recognized the inherent right of self-government as an existing right within section 35 of the Constitution Act, 1982. Concurrently with this, it developed an approach to the negotiation of self-government agreements that focuses on reaching practical and workable arrangements on how self-government will be exercised, rather than trying to define the right in abstract terms.
Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government, the policy adopted by the federal government in 1995, includes lawmaking authority over "marriage" and over property rights on reserves as potential subjects for negotiation. "Divorce" is one of several areas identified as an area with impacts beyond Aboriginal communities, and therefore while the federal government would be prepared to negotiate some measure of Aboriginal jurisdiction or authority, primary law-making authority would remain with the federal government, and federal divorce legislation would prevail in the event of a conflict with First Nation divorce legislation.
Self-Government and Matrimonial Interests or Rights
Matrimonial interests or rights on reserves are addressed in self-government agreements where land management was a subject for negotiations. Self-government agreements that address land management must include, in one way or another, the question of which government has jurisdiction to pass laws relating to matrimonial property on the lands of the Aboriginal party.
The proposed act would apply to any First Nation that has negotiated but not enacted legislation with respect to land management, or has not negotiated jurisdiction for land management under a self-government agreement or the First Nations Land Management Act. For example, in Ontario and Alberta, First Nations are currently negotiating self-government agreements to recognize jurisdiction in selected areas such as education, child and family services and governance. As long as these First Nations have not concluded self-government agreements that include land management, and are not First Nations Land Management Act First Nations, the proposed Act would apply to them.
To date [Note 1], self-government agreements addressing Aboriginal jurisdiction over land show three distinct approaches to the treatment of matrimonial interests or rights, namely:
1. Broad Aboriginal Jurisdiction over Matrimonial Property, Real and Personal
The Aboriginal party assumes a broad jurisdiction over matrimonial property, real and personal. Aboriginal jurisdiction may also extend to other areas of provincial family law, determination of support and enforcement issues. An example of this type of agreement is the Sioux Valley Dakota Nation Governance Agreement (this agreement has not yet been ratified by the parties and is not yet in effect). Such agreements have included a requirement that rights and protections that are provided in these areas of family law be either "equivalent" or "comparable" to those available under provincial/territorial law.
2. SharedProvincial/Territorial and Aboriginal Jurisdiction over Matrimonial Property
In some self-government agreements, Aboriginal jurisdiction is recognized only in relation to matrimonial real property, to the exclusion of other forms of matrimonial property, and only in relation to married couples in situations of marital breakdown.
Provincial/territorial jurisdiction over the balance of matrimonial property issues is recognized through the agreement's general provisions respecting the provincial/territorial laws of general application. The Westbank First Nation Self-Government Agreement is an example of this approach.
3. Provincial/Territorial Laws of General Application to apply to Aboriginal Lands
The agreement recognizes Aboriginal jurisdiction over Aboriginal lands but jurisdiction over matrimonial property, real or personal, is not explicitly addressed.
As a result of the provisions of the agreements which address provincial/territorial laws of general application and relationship of laws, provincial/territorial matrimonial property laws of general application will apply, although these may be superseded by subsequent Aboriginal government laws respecting matrimonial rights or interests. The Nisga’a Final Agreement and the eleven Yukon First Nation Self-Government Agreements are examples of this approach.
Self-Government Agreements and the Family Homes on Reserves and Matrimonial Interests or Rights Act
First Nations with reserve lands and a self-government agreement in effect who have jurisdiction over land management and who have acted on that jurisdiction are exempt from the proposed Act because they have negotiated agreements that cannot be unilaterally altered. Regardless of this exemption, self-governing First Nations may ask the Minister to make a declaration that this legislation will apply to them.