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Jessica Place THESIS-FINAL DRAFT 20140528 Law, Property and Power: A Critical Legal Geography of Matrimonial Real Property on Reserve by Jessica Place M.A. (NRES), University of Northern British Columbia, 2007 B.A., University of Northern British Columbia, 2005 Thesis Submitted In Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in the Department of Geography Faculty of Environment © Jessica Place 2014 SIMON FRASER UNIVERSITY Summer 2014 Approval Name: Jessica Place Degree: Doctor of Philosophy Title: Law, Property and Power: A Critical Legal Geography of Matrimonial Real Property on Reserve Examining Committee: Chair: Geoff Mann Associate Professor / Graduate Program Chair Nicholas Blomley Senior Supervisor Professor Sarah de Leeuw Supervisor Associate Professor Northern Medical Program University of Northern British Columbia Douglas Harris Supervisor Associate Professor Faculty of Law University of British Columbia Janet Sturgeon Internal Examiner Associate Professor Department of Geography Ezra Rosser External Examiner Professor Department of Law American University Washington College of Law Date Defended/Approved: May 22, 2014 ii Partial Copyright Licence iii Ethics Statement iv Abstract In Canada, spouses living on First Nation reserves do not have access to the same legal recourse and protection as people living off reserve when dealing with their family homes following the dissolution of their relationships. Federal law governing life on First Nation reserves does not address the division of matrimonial real property (MRP) after a marriage breaks up, and provincial/territorial law has limited application on reserve. In response to mounting concerns about this “legislative gap,” the federal government undertook a nation-wide “consultation” process (2006-2007) aimed at identifying a viable legislative solution to deal with MRP on reserve. The outcome of this process was a seemingly straightforward piece of property legislation that would apparently resolve the legislative gap while simultaneously addressing First Nation concerns around jurisdiction, culture/tradition, and consultation. However, despite being championed as a viable legislative solution, the Act was not widely supported. This research is broadly concerned with exploring theories of property to understand various ways in which property is conceptualized. I trace why these different and often competing conceptualizations of property matter in the context of matrimonial real property on reserve. The study is informed by critical legal geography literature and theories of property that argue spatial-legal categories are not fixed, apolitical and neutral. Rather, they are contested, enacted and inextricably linked to relations of power. I analyze discourses around “solving” the legislative gap in order to highlight the ways in which dominant conceptualizations of property serve to bracket matrimonial real property on reserve, and I consider the discursive “work” of property with respect to matrimonial real property on First Nation reserves in Canada. This research expands an understanding of the potential performativity of property with respect matrimonial real property, and explores the applicability of property theory to questions concerning Indigenous people(s) and spaces in colonial contexts. Exploring the legal geographies of property on reserve is relevant to current Canadian political and social life, and this research contributes greater insight into and appreciation of this under-theorized topic. Keywords: matrimonial real property on reserve; critical legal geography; property; colonialism; Indigenous geographies; ownership model v Acknowledgements When I set out to complete a doctoral degree, I harboured the illusion that I could do it entirely on my own. Believe it or not, I aspired to breeze through my studies without ever being a burden or needing anything from anyone. Not surprisingly, I soon discovered that I would have to become accustomed to burdening others. Indeed, as it turned out, I absolutely could NOT have come even close to finishing this thesis without the much- needed support of many wonderful people. I am truly humbled by the incredible contributions others have made to this project, and to me. As I near the end of this endeavour, I take away the gift of knowing that I am not alone, that I am part of a beautiful community of beautiful, generous souls to whom I will be forever grateful and indebted. And though I fear these words will fail to express the immense gratitude I feel, here they are nevertheless. I recently read somewhere that no supervisor is “perfect.” I’m not sure I agree. Without hesitation I’ll claim that Nick Blomley was as close to perfect as a supervisor can be. Nick is an incredibly intelligent and accomplished scholar who continuously challenged me to critically think through my project in ways I never would have managed to do on my own. He was also unfailingly kind and down-to-earth, always available, committed, insightful and responsive. Nick exemplifies all that is good in academia – collegiality, integrity, community, and intelligence – and he has set a brilliant example for me to aspire to. I am deeply grateful and feel very lucky to have been so expertly guided through this PhD. I am also very thankful to have worked with two fantastic committee members, Doug Harris and Sarah de Leeuw. Early on, Sarah encouraged me to undertake a PhD, gave me the idea for this research, and introduced me to Nick. Both Doug and Sarah have put so much into my project, and I do not for a second take that for granted. They were attentive, engaged, and wonderfully personable. What I appreciated most was how superbly they pushed me with feedback that was timely, thoughtful, and “right on.” In many respects, they breathed life into my project when it was faltering. It was an absolute pleasure to have worked with two such intelligent, grounded, and inspiring committee members. It was also an incredible honour to have Ezra Rosser, whom I vi greatly admire, for an external examiner. Many thanks to Janet Sturgeon, the internal examiner, as well. Ezra and Janet were both challenging and encouraging, and I was absolutely delighted to have the opportunity to discuss my work with these two excellent academics. This project was generously funded by Social Sciences and Humanities Research Council (SSHRC), and other scholarships and fellowships provided by Simon Fraser University. The administrative staff of the Department of Geography and, in particular, Marion Walter, deserves a big thank you for always being so helpful and approachable. With the majority of my studies taking place at a distance, the excellent support I received from Marion made a remarkable difference to my experience. Brian Egan, Sarah Hunt, Josh Labove, Will Damon, Lisa Freeman, Akin Akinwumi, Mark Kear, and Britta Ricker were a brilliant group of colleagues who inspired me, counselled me, and encouraged me at times when I needed it most. During the early stages of my research I was in contact with Jacinta Ruru and a number of very helpful people at NWAC, AFN and INAC. I am very grateful to each of these extremely busy individuals for the time and effort they put into communicating with me about the issue of MRP on reserve. Thank you! A special thank you to my employer, Martha MacLeod, an exceptional researcher, teacher and mentor, from whom I’ve learned so much. From granting me time off when I needed it, to firmly encouraging me to stick with my studies when I wanted to quit, Martha has supported my education and my career since the day we met, and I have been profoundly moved by her generosity. Neil Hanlon has also been a marvellous mentor to me as I’ve navigated this academic path. He has always taken the time to check in, and to offer encouragement and advice. In many respects, it was Neil who got me started in academia in the first place. I have relied on so many dear friends and colleagues. Jen, Jill and Adam, Tricia and Scott, Emily and Pat, Liz and Ian, Jocelyn and Marc, Ruth-Ann, Tracy, Sarah S., Rachael, Davina, Erin, Linda, Leana, Joanna, Nadine, Larine, and Shannon…thank you! It’s impossible to overstate how important my friendships are to me, and how much vii strength and determination I derive through my relationships with these incredible women and men. I am so grateful to my family for their incredible support. My sister, Hilary, generously donated many Sundays to “hang out” with my son while I worked, and put in countless hours commiserating with me and giving me the personal support and encouragement I needed so much. My Aunt Carolyn and Uncle Norm, and my cousins, Gabrielle, Noah and Emma, were also instrumental in helping me. When exiled to my office on weekends, it made all the difference knowing my little one was having a wonderful time among family. I also relied on my family for encouragement and moral support. A big hug and thank you to my mother- and father-in-law, Len and Marnie, my brothers Geordie and Wil, my sister-in-law Kristi, my Aunt Betty, my cousins Andrew and Jodie, Carmen and Christian, and Celia and Dave, my godfather Chris Peter and Margot Mandy, and dear family friends Ginny and Warren Gaffney. A very special thanks is due to my mother, Judy, who played a major role in financially and emotionally supporting me through my PhD. She was hugely involved in looking after my son, especially near the end when I needed to work “every waking second.” At various points, she has fed me, paid my tuition, and donated Air Miles so that I could attend conferences. I am so deeply grateful for all that my mom has done for me, and for making it okay to need and accept help. If I become half the woman – half the mother – she is, I’d be proud. I love you, Mom! To my husband, Shawn, I owe the greatest debt of gratitude.
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