Myths and Facts - Family Homes on Reserves and Matrimonial Interests or Rights Act
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Myth 1: There were no consultations prior to introducing this Act.
Fact 1: Consultations took place prior to introducing legislation and consisted of four phases: planning, national consultations, consensus-building and engagement on a draft legislative proposal. The national consultation phase, which was facilitated by a Ministerial Representative, took place in 2006-2007 with the Native Women’s Association of Canada and the Assembly of First Nations. Each organization was provided with $2.7 million in funding to carry out their roles in this process. Additional funds were provided to hear from other organizations as well, for a total of over $8 million.
Myth 2: The recommendations of the Ministerial Representative were not incorporated into the Act.
Fact 2: The Act contains 30 of the 33 recommendations made by the Ministerial Representative relating to the actual content of the Act, including the following:
- Providing basic protections for individual residents on reserves during and after the breakdown of a conjugal relationship;
- Balancing individual rights with the collective rights of First Nation communities regarding their reserve lands;
- Including a means for First Nations to exercise their “lawmaking responsibility” in this area.
Myth 3: There is no recognition of First Nations’ tradition or culture in the Act.
Fact 3: On the contrary, under the Act, First Nation communities may establish laws that are specific to their culture and traditions. A First Nation law would have to be approved by a community ratification process to ensure that the law is in accordance with the community’s interests but is not required to be reviewed or approved by the Minister of Aboriginal Affairs and Northern Development. Traditional practices and values vary among First Nations. For this reason, the provisional federal rules in the legislation provide for First Nations to speak to their collective, cultural and social interests when applications are before the courts. This does not apply in the case of emergency protection and confidentiality orders.
Myth 4: There is no recognition of existing First Nation laws on this issue.
Fact 4: The First Nations Land Management Act (FNLMA) is a federal law enacted in 1999 that provides signatory First Nations with legislative authority to address on-reserve matrimonial interests or rights. The First Nations Land Management Act, as well as the implementation of legislation for individual self-government agreements that deal with land management, enable First Nations to address the legislative gap respecting on-reserve matrimonial real property. This underlines the importance of the Act in providing a mechanism for other First Nations to develop their own laws in this area and have them applied by the courts.
Myth 5: The federal government is telling First Nation communities how to adopt their own laws.
Fact 5: The Act contains provisions for the enactment of community-specific First Nation laws to ensure that voters are aware of and approve the law. Neither the Minister nor the Department will have power over the content of community laws. Instead, the discussion as to whether or not a law is acceptable to the community will take place between First Nation members and First Nation governments.
The ratification process that is required in the Act for community approval of proposed First Nation laws is intended to protect the collective interests of First Nation community members by ensuring that voters are aware of and approve the law.
Myth 6: The Act allows provincial laws to be applied on reserves.
Fact 6: No. The Act does not incorporate provincial and territorial laws relating to matrimonial real property on reserves. The Act only provides that either the provisional federal rules or First Nation laws will apply on reserves.
Myth 7: A non-member or non-Aboriginal person could obtain permanent possession of an on-reserve home.
Fact 7: No. Although non-Aboriginal individuals may be able to occupy an on-reserve home for a temporary period of time, they will never gain permanent possession of that home. As a result of the Indian Act, land cannot be transferred to non-members and this does not change as a result of the legislation. The overall land-holding regime of the Indian Act regarding restrictions on transfers and the entitlement to hold land still apply.
Myth 8: The Act is retroactive.
Fact 8: No. The legislation cannot affect situations in which the relationship breakdown or death occurred before the Act comes into force.
Myth 9: First Nation laws must be approved by the Department.
Fact 9: No. Neither the Minister nor the Department have power regarding the content of community laws. The development and enactment of First Nation laws are between community members and their First Nation government.
Myth 10: The Act erodes a First Nation community’s land base and allows non-members to take control of reserve land.
Fact 10: No. The Act, once in force, will not erode the First Nation community’s land base or cause them to lose control of reserve lands. The provisional federal rules do not allow for non-Indians or non-members to acquire permanent interests in reserve land.
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