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Approaches to addressing the legislative gap respecting on-reserve matrimonial real property interests or rights have been under consideration for some time. Aboriginal Affairs and Northern Development Canada (AANDC), then Indian and Northern Affairs Canada conducted research, provided presentations and information sessions over the last several years and has reported to various parliamentary, domestic and international committees on the issue. The following is a comprehensive list of research, activities and policies the Department has undertaken over the years in relation to this issue prior to the introduction of proposed legislation.
Under the Federal Aboriginal Self-Government Policy, the federal government began developing guidelines to assist federal negotiators in ensuring that on-reserve matrimonial real property 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 was enacted. 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 develop laws to address on-reserve matrimonial real property interests or rights within 12 months of ratification of their land codes. As of July 2012, 20 First Nations operating under the First Nations Land Management Act have enacted their matrimonial real property laws.
Of Canada's approximately 600 First Nations, however, only a handful have measures to address matrimonial real property in place through these initiatives, and most on-reserve residents remain without adequate rights and protections.
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, the Department 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 the Department, Wendy Cornet produced a discussion paper analyzing the policy and legal issues concerning this issue.
Between 2002 and 2004, the Department held focus groups, 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, the Department produced and distributed plain language documents concerning on-reserve matrimonial real property interests or rights.
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, including recommendations, on June 8, 2005.
Preliminary consultations were held by the Department 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.
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.
In June 2006, the Honourable Jim Prentice, then Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians, announced a series of measures to protect the rights and well-being of Aboriginal women and children on reserves, including consultations on this issue in collaboration with the Native Women’s Association of Canada and the Assembly of First Nations.
Minister Prentice appointed Wendy Grant-John as Ministerial Representative for On-reserve Matrimonial Real Property. Ms. Grant-John was tasked to work with the Department, the Native Women’s Association of Canada, the Assembly of First Nations, and additional stakeholders throughout the process. Further details on the extensive national consultation process are provided in Issue Paper No. 2 – Consultation Process.