History of Measures to Address the On-Reserve Matrimonial Real Property Issue
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The following is a comprehensive list of research, activities, policy development and consultations the Government of Canada has undertaken in relation to the on-reserve matrimonial real property issue.
Policies and Legislation
Under the 1995 Federal Aboriginal Self-Government Policy, the federal government began developing guidelines to assist federal negotiators in ensuring that on-reserve matrimonial interests or rights are addressed in self-government negotiations involving reserve land management - thereby ensuring the legislative gap is not overlooked.
In 1999, the First Nations Land Management Act received Royal Assent. Under this law, signatory First Nations enact land codes which permit them to opt out of the lands provisions of the Indian Act. As part of their land codes, First Nations Land Management Act First Nations must enact rules and procedures “in cases of breakdown of marriage, respecting the use, occupation and possession of First Nation land and the division of interests in First Nation land.” These rules and procedures are to be developed within 12 months of ratification of their land codes.
Special Representatives / Advisors
In 2000, Mavis Erickson was appointed by the Honourable Robert Nault, then Minister of Indian Affairs and Northern Development, as a Special Representative to obtain a factual understanding of issues having a negative impact on the protection of First Nation women's rights and to recommend possible legislative and/or policy solutions. In January 2001, Indian and Northern Affairs Canada received the Special Representative's report, which emphasized that the division of on-reserve matrimonial real property was foremost among reported issues. However, no solutions to this issue were proposed at the time.
In 2002, under contract to Indian and Northern Affairs Canada, Wendy Cornet produced a discussion paper analyzing the policy and legal issues concerning this issue.
Focus Groups, Presentations and Information Sessions, 2002-2004
To supplement the research on matrimonial real property, in 2002, Indian and Northern Affairs Canada held two focus group discussions with First Nation women community members, Chiefs and lawyers. Focus group participants stressed that there is a need to address on-reserve matrimonial real property issues, particularly through interim measures; respect self-government and section 35 rights; provide information to all stakeholders, especially on-reserve residents, prior to any consultations; raise community awareness and encourage involvement; provide plain language materials on the current status of law; protect women and children in urgent situations or situations of family violence; consider the interests of children; and consider the effect of marriage or divorce on membership, which further affects residency rights.
Between 2002 and 2004, Indian and Northern Affairs Canada held presentations and information sessions across Canada to raise awareness of the issue. Audiences included First Nation communities, Aboriginal women’s organizations, Aboriginal leadership, and law schools.
Additionally, Indian and Northern Affairs Canada produced and distributed plain language documents concerning on-reserve matrimonial interests or rights.
In February 2003, Indian and Northern Affairs Canada published: "After Marriage Breakdown: Information on the On-Reserve Matrimonial Home".
On September 15, 2003, Indian and Northern Affairs Canada released: "Towards Resolving the Division of On-Reserve Matrimonial Real Property following Relationship Breakdown: A Review of Tribunal, Ombudsman and Alternative Dispute Resolution Mechanisms ".
On September 15, 2003, Indian and Northern Affairs Canada released: "Urban Aboriginal Women in British Columbia and the Impacts of the Matrimonial Real Property Regime ".
In September 2003, Indian and Northern Affairs Canada released: "The Division of Matrimonial Real Property on American Indian Reservations ".
In 2004, Indian and Northern Affairs Canada published: "Information on Spousal Rights to the Family Home on Reserves".
Parliamentary Committees, 2003-2005
In June 2003, the Standing Senate Committee on Human Rights (Senate Committee) was authorized to study legal issues affecting on-reserve matrimonial real property during marriage or common-law relationship breakdown. In November 2003, the Senate Committee tabled an interim report making preliminary recommendations ranging from immediate amendments to the Indian Act to undertaking consultations to find long-term solutions. The Senate Committee resumed its study in February 2004, but the study had not concluded when Parliament dissolved in May 2004.
In December 2004, the Honourable Andy Scott, then Minister of Indian Affairs and Northern Development, wrote to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development (Standing Committee) to ask that they provide advice "as to how the federal Crown can best address the longstanding issue of on-reserve matrimonial real property." The Minister requested in his letter that the Standing Committee engage First Nation leaders as well as Members of Parliament in the development of solutions (including potential legislation) and also to provide Aboriginal women and other stakeholders with further opportunity to express their views.
The Standing Committee heard evidence from a number of stakeholders, including the Assembly of First Nations, the Native Women’s Association of Canada, First Nations under the First Nations Land Management Act and self-government agreements, Chiefs, academics and legal experts. The Standing Committee presented its report Walking Arm-in-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property, including recommendations, on June 8, 2005.
The Senate and Standing Committees recommended that Indian and Northern Affairs Canada work with and provide funding to the Native Women’s Association of Canada and the Assembly of First Nations to: consult with Aboriginal people and provincial/territorial governments to find a legislative solution to the issue; draft federal legislation to address on-reserve matrimonial real property in the short-term; and develop substantive federal legislation for First Nations which have not created their own laws within the timeframe set out in the interim legislation.
Preliminary consultations were held by Indian and Northern Affairs Canada in July 2005, and included both the Native Women’s Association of Canada and the Assembly of First Nations. These discussions focussed on the recommendations made by the Senate and Standing Committees, and on determining next steps to move the issue toward a legislative solution.
During these consultations, both organizations indicated their interest in working with the federal government. The Native Women’s Association of Canada supported the development of a legislative solution, but stressed the need for consultations to be undertaken before legislation was developed. The Assembly of First Nations situated the legislative gap as an issue that should be resolved in the larger context of recognizing the inherent jurisdiction of First Nation governments over family law, reserve land management and the administration of justice and human rights.
The federal government agreed that further consultations with First Nation organizations and communities were needed to determine an enduring legislative framework to address the legislative gap. In its response to the report of the Standing Committee entitled Walking Arm-in-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property, the Minister indicated that Indian and Northern Affairs Canada would continue to engage and inform stakeholders by conducting information sessions.
Information Sessions, 2006
Prior to the announcement of a national consultation process in June 2006, two additional information sessions were held, including a meeting with the Assembly of Manitoba Chiefs Women’s Council in January 2006 and a meeting with the Advisory Council of Treaty Six Women in Edmonton in March 2006.
Parliamentary Committee, 2006
In June 2006, the Standing Committee on the Status of Women presented a report in the House of Commons recommending that national consultations be undertaken in collaboration with the Assembly of First Nations and the Native Women’s Association of Canada. The September 2006 Government Response outlined the Department of Indian Affairs and Northern Development’s plans, as described below.
Nation-wide Consultations, 2006-2007
Following recommendations made by the Senate and Standing Committees, 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, as well as the appointment of a Ministerial Representative, Wendy Grant-John, to facilitate the process.
The planning phase of the consultation process took place from June 20, 2006 to September 28, 2006. During this time, the Assembly of First Nations, the Native Women’s Association of Canada, Indian and Northern Affairs Canada and the Ministerial Representative undertook joint discussions and individual planning activities to prepare for a national consultation process. The Assembly of First Nations and the Native Women’s Association of Canada were each provided with $2.7 million to participate in the consultation process. The Assembly of First Nations attended planning phase meetings as observers until they received a full mandate to participate in July, 2006.
The government then held comprehensive nation-wide consultations, which were launched on September 29, 2006, by former Minister Prentice, with Beverley Jacobs, then President of the Native Women's Association of Canada, Phil Fontaine, then National Chief of the Assembly of First Nations, and the Ministerial Representative.
Consultations took place across Canada, with participation from male and female First Nation members, non-members, Status and Non-Status Indians and urban Aboriginal people. In total, 91 consultation sessions were held with Aboriginal groups, providing a total of 138 consultation days at 64 different locations across Canada. In addition, 12 consultation sessions were held with provincial and territorial governments, bringing the total number of consultation sessions to 103.
The Native Women’s Association of Canada facilitated approximately 30 sessions, primarily off reserves and with Aboriginal women and groups. In addition, they conducted confidential surveys, personal interviews and accepted written submissions.
Through facilitation of 9 regional sessions, the Assembly of First Nations invited participation from each of its 633 constituent First Nations.
Indian and Northern Affairs Canada held 52 sessions with First Nation groups outside of the Assembly of First Nations and Native Women’s Association of Canada sessions. The department also received written input through its website and by mail.
Throughout the planning and consultation phases, a joint Assembly of First Nations / Indian and Northern Affairs Canada / Native Women’s Association of Canada Working Group, facilitated by the Ministerial Representative, convened 19 meetings, during which participant organizations planned the process, updated each other on activities, and discussed issues of concern arising from consultations. In addition to facilitating each working group meeting, the Ministerial Representative attended over 80 meetings across Canada to raise awareness, seek expert information and discuss the on-reserve matrimonial real property issue and consultation process with First Nations.
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:
- Incorporation of provincial/territorial matrimonial real property laws on reserves through amendments to the Indian Act or stand-alone federal legislation;
- Option 1 (above), combined with recognition of a First Nation jurisdiction with regard to matrimonial real property; and
- Substantive federal matrimonial real property law combined with the recognition of a First Nation jurisdiction with regard to matrimonial real property.
Most participants were more concerned about addressing related issues rather than specific mechanisms that could be used to resolve the legislative gap. Suggestions by participants during the consultation sessions included the following:
- Include a mechanism by which First Nations can develop and implement their own laws respecting matrimonial real property interests or rights;
- Create a balance between the authority of Chiefs and Councils over this issue and First Nation community involvement in related decision making processes;
- Reject legislative models involving incorporation of provincial laws relating to matrimonial real property;
- Ensure that First Nation organizations are actively involved in the policy-making process;
- Incorporate First Nation cultural, social and legal traditions into any solution;
- 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,
- Ensure that the best interests of children are placed first and foremost in the development of any solution.
Consultations were followed by an intensive consensus-building phase from February 1, 2007 to February 21, 2007, with nine full days of meetings with participation from the Assembly of First Nations, the Native Women’s Association of Canada, the Ministerial Representative and Indian and Northern Affairs Canada. While achieving consensus on a legislative model proved to be a challenge, some shared principles emerged as priorities. These included:
- The urgent need to remedy this situation;
- The need to balance individual and collective rights of First Nation communities;
- The need for First Nations to develop their own laws to address this issue;
- Legislative models involving incorporation of provincial/territorial matrimonial real property laws on reserves are not acceptable; and,
- The principles of non-alienation of reserve land and the preservation of First Nations’ collective interests in their lands must be protected.
Based primarily on what she heard during the consultation and consensus-building phases, the Ministerial Representative released her report on March 9, 2007. Among other items, the Ministerial Representative recommended a legislative solution that would: provide basic protections for individual residents on reserves during and after the breakdown of the conjugal relationship; balance individual human rights and the collective rights of First Nation communities; include a mechanism for First Nations to exercise law-making responsibility in this area; and, be backed by a strong implementation framework. The Minister tabled the report in the House of Commons on April 20, 2007 and it was tabled in the Senate on April 26, 2007.
Engagement on Draft Legislative Proposal, 2007
The Ministerial Representative’s recommendations provided the basis 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/ territories and the First Nation Lands Advisory Board.
In total, 13 engagement meetings were held with provincial/territorial governments, and 14 meetings were held with Aboriginal groups (i.e., the Native Women’s Association of Canada, the Assembly of First Nations, the Lands Advisory Board, and the Ministerial Representative).
All of the partners involved in this engagement process had opportunities to share their views and concerns about the legislative proposal. Several technical changes were made as a result of engagement with provincial/territorial governments, and a number of significant changes were made to the draft bill as a result of engagement with Aboriginal organizations.
Introduction of On-Reserve Matrimonial Real Property Legislation
On March 4, 2008, the proposed Family Homes on Reserves and Matrimonial Interests or Rights Act was first introduced in the House of Commons as Bill C-47. As a result of the dissolution of Parliament on September 7, 2008, Bill C-47 died on the Order Paper and was subsequently reintroduced as Bill C-8 in February 2009, but it too died on the Order Paper when Parliament was prorogued.
On March 31, 2010, the Government of Canada introduced Bill S-4, the proposed Family Homes on Reserves and Matrimonial Interests or Rights Act in identical form in the Senate. In the spring of 2010, during review of Bill S-4 by the Standing Senate Committee on Human Rights, the Committee heard from more than 30 witnesses, and in response adopted 12 amendments, which further strengthened the legislation. The bill received first reading in the House of Commons on September 22, 2010, but died on the Order Paper when Parliament was dissolved on March 26, 2011.
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