ARCHIVED - Gender-Based Analysis

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INTRODUCTION

The issue of on-reserve matrimonial real property interests or rights has often been cited as being a First Nation women’s issue. However, there are implications for men, women, children and families, as the legislative gap in protections on reserves can affect all residents.

A gender-based analysis has been used to assess the potential impacts that this Act may have on First Nation men, women, children and families.

OUTCOMES OF CONSULTATIONS

The Act responds to feedback received from First Nation participants during the national consultation process in 2006, approximately 76 per cent of whom were First Nation women. The high participation rate by First Nation women indicates the importance of this issue to women, children and families.

Throughout the consultation process, participants, especially women, expressed the need to address issues that are often at the centre of gender-based concerns, including family violence, the best interests of children, and accountability of First Nations leadership. This Act is designed to address these gender-based concerns.

IMPACTS RELATED TO THE ACT

This Act provides individuals with matrimonial real property interests or rights on reserves during the relationship, on relationship breakdown, and on the death of a spouse or common-law partner, and balances these individual rights with First Nations’ collective interest in reserve lands. The following section outlines potential gender-based impacts of the proposed Act, both with respect to the provisional federal rules and First Nation laws.

Provisional Federal Rules

Enabling courts to exclude one of the spouses or common-law partners from the family home by way of emergency protection orders under the proposed Act is expected to produce a positive gender-based impact. This protection will allow, for example, victimized spouses or common-law partners in abusive relationships to take exclusive occupation of the family home for a specified period of time, providing victims and their dependents with a safe place to stay, albeit on a temporary basis.

Orders granting one spouse or common-law partner temporary exclusive occupation of the family home will help to ensure that spouses or common-law partners who are primary caregivers will have access to housing for their children and/or dependent adults.

The provisional federal rules may produce some negative gender-based impacts in limited and specific cases. These impacts are unavoidable and are likely justifiable. For example, courts may tend to provide caregiver spouses or common-law partners with exclusive occupation of the family home. According to the 2006 Census, women headed up 74 per cent of the 29,150 lone-parent families on reserves. Because women are more likely to be caregivers of dependent children and/or adults, men may be less likely to retain occupation of the family home on breakdown of a conjugal relationship. As a result, more women than men may be required to financially compensate their spouse or common-law partner for their share of the family home.

First Nation Jurisdiction

The provisions for the enactment of First Nation laws may result in some gender-based impacts. First Nation laws would be subject to the Canadian Charter of Rights and Freedoms (Charter) and Canadian Human Rights Act, as applicable. The possibility exists that a First Nation could adopt a law to address matrimonial real property interests or rights that may not necessarily act in the best interests of individual men or women, or may not involve or fully engage in the development of the law those individuals that are most likely to be affected by it. Under the proposed Act, however, First Nations will be required to undertake a community ratification process, reducing the likelihood that such a law would be adopted.

Views of Council

Where a community's collective interests in lands are engaged, the proposed Act will provide for notification to First Nation councils and allow the council to present its views from a cultural, social and legal perspective in court as they relate to cases that raise gender-based concerns. Some female participants during the national consultation process expressed doubt that their First Nation leadership would take their needs into account in situations concerning matrimonial real property rights or interests. Since as of July 2011, 28 per cent of First Nation Chiefs and Councilors are women, gender-based concerns may be further compounded by the unequal gender-based breakdown in positions of power and influence.

Elimination of the Verification Process

The proposed legislation has been changed to eliminate the verification process that was included in the previous version of the bill, Bill S-4, which required a verification officer to be jointly appointed to certify and observe the conduct of the First Nation’s voting process. The change responds to concerns raised by stakeholders.

This change has no gender impacts on First Nation communities. First Nations are still required to notify on and off reserve eligible voters of the content of their proposed law and the voting procedures. This means women and men off reserve may participate in the community approval process. As of 2010, female First Nation individuals represented 53 per cent of the off-reserve First Nation population.

Both men and women, on and off reserves, may voice their opinions in court if they disagree with the voting process or feel the content of the law is not Charter compliant.

Lower Ratification Threshold

Initially the proposed legislation required the adoption of First Nation laws by a double majority reflecting approval of the laws by more than 25 per cent of eligible voters. This means that a majority of the persons eligible to vote must cast votes and of those voting, a majority must vote in favour of the law.

In response to First Nations, First Nation organizations and stakeholders concerns, the ratification threshold for the adoption of First Nation laws was lowered to a single majority and set participation in the vote by at least 25 per cent of the eligible voters. This requires that at least 25 per cent of the eligible voters participate in the vote and a majority of those voting must vote in favour.

The higher threshold was criticized as being unattainable and challenging, if not impossible, for many First Nations to obtain, thereby making it harder for First Nations to enact their own community-specific laws. The lower threshold supports First Nation law-making. There is no anticipated gender impact as a result of this change.

Transition Period

Based on what was heard from First Nations, First Nation organizations and stakeholders, the proposed legislation now includes a 12-month transition period before the federal provisional rules come into force. The proposed legislation would come into force in two phases: 1) as soon as the bill comes into force First Nations will have the power to enact their own laws and 2) twelve months after that date the provisional federal rules will come into force.

Having a transition period between the first and second phases means that there will be a delay in the rights and protections provided by the federal provisional rules. In communities where First Nation community-specific matrimonial real property laws are not enacted, the status quo would continue during the 12-month transition period.

During this time in situations involving domestic violence, a spouse or common-law partner could not apply for an emergency protection order for exclusive occupation of the family home. Aboriginal women are three times more likely to be victims of spousal violence than non-Aboriginal women. With this in mind, the transition period will continue to negatively impact First Nation women and children on reserves due to this delay, because it maintains the status quo by not providing immediate protections.

Also, during this transition period a surviving spouse or common-law partner who does not hold an interest or right in the family home would not be able to automatically occupy the family home for a minimum of 180 days following the death of their partner or spouse. Further, they would not have the legal right to apply to the court for exclusive occupation of the family home for a specified time. During the transition period, this will continue to have a negative impact on both male and female survivors who do not have an interest or right in the family home.

In both examples, spouses or common-law partners and their dependents may need to leave the community. Their departure from the community impacts the future contributions they and their children may have made in the community. Women and children forced to leave their communities often face a reality of poverty, homelessness and a disconnect from their support networks.

The 2006 Assembly of First Nations Regional Dialogue Sessions report noted: "When First Nations couples separate, the lack of alternative and affordable housing often further breaks families apart as one spouse and some or all of their children are forced to leave their community to seek available housing. This in turn contributes to the further breakdown of First Nations communities." (page 9)

Emergency Protection Orders

Under the provisional federal rules, in situations of family violence, a spouse can apply to the court for an emergency protection order to stay in the family home, at the exclusion of the other spouse. The length of the emergency protection order is for a period of up to 90 days, and it is only possible to seek a single extension of such an order. The first hearing of an emergency protection order application is done ex parte meaning that it is a proceeding that only involves the person seeking protection and does not involve representation of, or notification to, the other spouse or common-law partner.

In certain circumstances the duration of an emergency protection order may be extended by a judge for a length of time to be determined at their discretion.

Once the first 90 days have elapsed, the spouse can apply for a renewal of the order. The bill initially included a 90-day time limit for the extension but the bill was amended to allow a judge to extend the order for a length of time to be determined at their discretion.

The initial 90-day limit was a measure to balance individual and collective rights, and to mirror emergency protection order provisions in provincial and territorial laws. There is no anticipated gender impact as a result of this amendment.

CONCLUSION

The elimination of the verification process would have no expected gender impacts.

There is a positive gender impact for the lower voting threshold to a single majority with a set 25 per cent voting participation. This would result in more First Nations being able to ratify their community-specific laws.

The long-standing issue of on-reserve matrimonial real property rights or interests requires balancing of individual and collective interests. The transition period provides First Nations with time to consider and implement their own laws that meet their cultural and community requirements prior to the application of the interim federal rules.

This legislative gap has resulted in individuals and families being forced to leave their community and the transition period may result in more people leaving their community if there is a lack of immediate protection.

However, once matrimonial real property laws come into force, whether through First Nation laws or the federal rules, the lack of on-reserve matrimonial real property rights and protections will be addressed.

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