The federal government’s latest attempt to bring western family law principles to native reserves is once again attracting controversy.
While off-reserve aboriginals and provincial legislatures support the legislation, on-reserve representatives have expressed overwhelming opposition. Aboriginal law practitioners watching the debate, meanwhile, are just hoping their clients will end up with some rights they can rely on.
The family homes on reserves and matrimonial interests or rights act is the federal government’s fourth attempt to address the vacuum that exists in matrimonial property laws in aboriginal communities.
The standing committee on the status of women has just referred the bill back to Parliament without amendment despite hearing a litany of concerns about the process and the lack of consultation and non-legislative measures and support.
Nobody disagrees that legislation is necessary, but critics view this particular version as offensive and misguided. Toronto lawyer Ernie Tannis explains the current legal situation.
“It is commonly accepted by government and native leadership that there is a huge gap in relation to family law rights and responsibilities. It stems from the leading cases of Derrickson [v. Derrickson] and Paul [v. Paul] of the Supreme Court which found that because of the constitutional division of power, the family law of the provinces does not apply in native territories.
Consequently, there are no matrimonial rights that apply on marriage breakup. It all has to be negotiated. The parties can’t deal with possession of property or enforcement or collection because it is Crown land.”
While policymakers and aboriginal advocates have been aware of the problem for more than 20 years, those actually affected by the situation may not be aware of it. “To the clients themselves, it can be quite shocking at the end to realize they have no rights,” says Tannis.
In fact, the standing committee has heard many heartbreaking stories of women who contributed financially to building homes on reserves but upon marital breakdown found themselves homeless because of the unique land-tenure system and band-member rights.
First Nations communities have complex land codes that include custom allotment, certificates of possession, and a variety of other mechanisms that mean when there’s a marital breakdown, many spouses have no rights at all.
Communities can create their own membership codes that may involve blood quantum so that a woman who’s not a member of the community or has partial status won’t be able to have land. If the government changes the rules, the communities suffer a so-called checkerboard effect as non-native spouses end up owning tribal land.
In many homes, there are large extended families that include grandparents who may either be elderly and infirm or quite young and helping to raise the children.
Deciding who remains in the house on marital breakdown becomes a complex issue exacerbated by chronic housing shortages and a lack of women’s shelters and homes for the elderly.
The new legislation provides that until communities create their own laws, the federal legislation will apply by default. There are 615 groups empowered to enact their own laws.
To pass rules that comply with the legislation, there has to be a vote within the community involving a majority. There’s a 12-month transition period before the default laws kick in.
One of the constant refrains from native chiefs who appeared before the committee, many of whom are lawyers, was that the federal government’s approach was legally incorrect. Tannis explains: “There are a number of levels to the legislation that deal with all the issues we’re familiar with and take account of traditional approaches.
Then there’s the Marianas Trench of sovereignty and native people’s refusal to be recolonized. There is the dispute on the surface issue and then there is the underlying conflict of their right to govern themselves which manifests itself in every issue.”
British Columbia regional chief Jody Wilson-Raybould, representing the Assembly of First Nations, said: “The federal government is walking a legal tightrope by making laws in areas many people, including legal scholars and our leadership, assume are a part of our nations’ inherent right of self-government and protected under Canada’s Constitution.”
She also cited the requirement for free, prior, and informed consent as articulated in s. 19 of the United Nations Declaration on the Rights of Indigenous Peoples.
The act of bestowing legislative authority on the First Nations and granting jurisdiction to provincial courts for enforcement is an affront to their right to self-determination, critics argue.
If they don’t develop their own code, the proposed legislation establishes federal laws imposed on them. One speaker compared the situation to the creation of municipal governments subject to federal power while another compared the delegated authority to “someone trying to steer our canoe.”
The Native Women’s Association called this arrangement a new form of colonization. It called for the government to invoke the recommendations of Wendy Grant-Smith, the minister’s special adviser in 2007 who prepared a special report on the matter that received wide support from First Nations.
Her key recommendation was for a concurrent jurisdiction model in which First Nation’s authority over matrimonial real property, including dispute resolution, would be paramount in any conflicts with federal or provincial law.
The association also asked for implementation of recommendations put forward by the aboriginal law section of the Canadian Bar Association after a comprehensive review in 2010.
These calls reflected the complaint that despite the 103 consultations across 76 communities and $8 million spent in studies, the government hadn’t listened to the advice it received.
There was also great dissatisfaction with the fact the bill was before the committee on the status of women when it clearly affects the rights of men, same-sex marriages, and families.
Some groups, such as the Iroquois, have a matrilineal society in which women have traditionally owned the land, the house, and the children. Men were husband visitors rather than landowners.
A motion to refer the bill to the standing committee on aboriginal affairs and northern development was unsuccessful.
David Langtry, the acting chief commissioner of the Canadian Human Rights Commission who spent 15 years as a family law practitioner, questioned whether First Nations have the financial and human resources to develop their own legislation and effective dispute resolution systems.
He raised the possibility of a 36-month transition period, but a motion to amend the bill in this respect was unsuccessful. On the question of resources, he said the commission had learned that there were limited supports for other on-reserve issues associated with matrimonial and real property such as counselling and legal assistance.
In fact, the bill doesn’t provide any practical support for communities to develop their own laws apart from funding a centre for excellence that will research best practices.
Critics have suggested the $5 million allocated over five years is inadequate for serving the hundreds of communities that would need assistance.
Both on-reserve and off-reserve representatives called on the government to allocate resources to assist communities to meet this new responsibility.
Critics have also pointed out that access to justice is very poor, particularly in the remote community circuit courts. There’s often a large backlog, little access to legal aid, and limited transportation to the courts.
Enforcing the new laws is another challenge given the chronic problems with policing and court accessibility.
The position of the committee was that it was time for action to close the legal loophole. As the Conservatives appear determined to pass the legislation this time around, aboriginal communities are bracing themselves to address it as best they can.
The AFN has developed a template matrimonial real property law. The Iroquois caucus has also drafted a law that’s under discussion. The human rights commission has been helping communities develop an alternative dispute mechanism that may be able to deal with some of the issues.
As a result, communities will now be looking for lawyers with the expertise to take on the complex challenge of drafting rules that harmonize the various laws in force within the 12-month period.