Bill S-2: Family Homes on Reserves & Matrimonial Interests or Rights Act

Technical Update – January 27, 2012

Background

In 2006, the Minister of Indian and Northern Affairs (INAC) appointed Wendy Grant-John as Ministerial Representative to examine Matrimonial Real Property (MRP) on reserves. The AFN and Native Women’s Association of Canada (NWAC) also engaged in dialogue and provided recommendations and reports to INAC on ways to move forward and address MRP issues.

A timeline of 9 months was set by Canada to plan for, seek input and develop consensus with regards to MRP on reserves, including legislative options. In order to facilitate discussion and the development of options the AFN coordinated and co-hosted 8 Regional Dialogue sessions over a period of two months.

Through AFN-facilitated dialogue, three broad principles emerged as the key to addressing matrimonial rights and interests on reserves:  Recognition of First Nation jurisdiction  Access to justice, dispute resolution & remedies  Addressing underlying issues, such as access to housing and economic security

However, independent of First Nation involvement and the comprehensive recommendations of the Ministerial Representative, the government drafted legislation, which was first introduced in March 2008 and has been tabled on four occasions.

The Current Bill

On September 28, 2011 the Government re-introduced legislation on MRP in the Senate: Bill S-2 – Family Homes on Reserves & Matrimonial Interests or Rights Act.

There have been changes to this Bill from previous versions. raised objections to many aspects of the Bill including with regard to the “verification officer and office” with a

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mandate to oversee and approve First Nation MRP laws; the fact of no transition period as well as the high threshold required to enact First Nation laws in this regard. Changes have been made to address these concerns though the removal of the offensive “verification officer” and

“verification office”, the requirement of only a simple majority of First Nation citizens to enact a law as well as the introduction of a 12 month transition period between passage of the Bill and its application to First Nations.

However, the overriding and principle concerns of First Nations were with regard to respect for First Nation jurisdiction and authority in this matter as well as capacity requirements to actually improve access to justice for peoples affected. These serious concerns remain.

Bill S-2 empowers Provincial Courts to preside over disputes related to the division of matrimonial real property on reserves. This is contrary to First Nation inherent authority over their lands, as well as the division of federal and provincial powers outlined in section 91.24 of the Constitution Act, 1867.

In addition, First Nation communities are often in areas with limited access to courts or lawyers. Reliance on provincial courts will place additional financial burden on First Nation citizens in a marriage breakup, where they are accessible at all. In effect, the Bill creates an additional barrier to justice for First Nation citizens and will not provide effective remedies for individuals seeking redress.

The Bill would apply until a First Nation ratifies its law governing matrimonial real property though a vote of at least 25% of eligible members. First Nations with pre-existing processes must newly ratify these and provide notice of such to the Minister of Aboriginal Affairs and the Provincial Attorney General. First Nation adoption of laws based on consensus or other traditional processes will not be accepted. This is not in accordance with First Nations Treaty and inherent rights, and directly contravenes of section 35 of the Constitution Act, 1982 which recognizes and affirms existing Aboriginal and Treaty rights.

The Senate Standing Committee on Human Rights held limited hearings on