University of Calgary PRISM: University of Calgary's Digital Repository Graduate Studies The Vault: Electronic Theses and Dissertations 2019-09-16 Assessing Matrimonial Real Property Law on First Nation Reserves: Domestic Violence, Access to Justice, and Indigenous Women Darling, Elysa Darling, E. (2019). Assessing Matrimonial Real Property Law on First Nation Reserves: Domestic Violence, Access to Justice, and Indigenous Women (Unpublished master's thesis). University of Calgary, Calgary, AB. http://hdl.handle.net/1880/111047 master thesis University of Calgary graduate students retain copyright ownership and moral rights for their thesis. You may use this material in any way that is permitted by the Copyright Act or through licensing that has been assigned to the document. For uses that are not allowable under copyright legislation or licensing, you are required to seek permission. Downloaded from PRISM: https://prism.ucalgary.ca UNIVERSITY OF CALGARY Assessing Matrimonial Real Property Law on First Nation Reserves: Domestic Violence, Access to Justice, and Indigenous Women by Elysa Darling A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS GRADUATE PROGRAM IN LAW CALGARY, ALBERTA SEPTEMBER, 2019 © Elysa Darling 2019 Abstract This thesis offers a doctrinal analysis and assessment of the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) and the case law and legislative history that led to its enactment. FHRMIRA operates on First Nation reserves with respect to matrimonial real property and includes provisions dealing with the division of property upon relationship breakdown or death of a spouse and protections from domestic violence, like emergency protection and exclusive occupation orders. This thesis assesses the utility of FHRMIRA with respect to the protection it provides to Indigenous women experiencing domestic violence, as well as their access to justice in this context. In addition, it examines the challenges First Nations experience enacting their own matrimonial real property laws, whether under FHRMIRA or other legal frameworks. It also includes a review of First Nations matrimonial real property laws enacted pursuant to FHRMIRA and the extent to which they protect against domestic violence. Lastly, the thesis discusses qualitative interviews undertaken in a collaborative case study with the Ermineskin Cree Nation to understand how one First Nation governs in this area. The thesis argues that in order to ensure that Indigenous women have access to justice and protection against domestic violence, a holistic, Nation-specific approach must be taken to enacting matrimonial real property laws on reserve, and these legal regimes should be determined by the First Nation itself, in order to mitigate the jurisdictional confusion and implementation challenges arising from the FHRMIRA. ii Preface This thesis is original, unpublished, independent work by the author, Elysa Darling. The research reported in Chapter 4 was covered by Ethics Certificate Numbers REB18-1544, REB18-1544_MOD2, REB18-1544_MOD3, and REB18-1544_MOD4, issued by the University of Calgary Conjoint Faculties Research Ethics Board for the project “Matrimonial Real Property Law and Its Relation to Intimate Partner Violence on Reserve” on November 19, 2018, December 18, 2018, January 16, 2019, February 28, 2019, and March 12, 2019. iii Acknowledgments I am grateful to the Social Sciences and Humanities Research Council for its financial support through a research stipend for my LLM program, the Faculty of Law for a 2-year Graduate Scholarship, the Queen Elizabeth II Graduate Scholarship, the Alberta Graduate Student Scholarship and the Persons Scholarship. Without this support I would not have been able to do this work. It has been an incredible experience to be a small part of the SSHRC research team on Domestic Violence and Access to Justice within and across Multiple Legal Systems. It is a privilege to work with such a thoughtful, intelligent group of women. Special thanks to Janet Mosher for her feedback on an earlier presentation of this research project. My heartfelt thanks to my supervisor Jennifer Koshan. Without your support and confidence in my abilities, I may never have taken the leap and gone back to school. Two years working with you rebuilt me, reminded me of what I really care about, and set me down a path I am sure will change the course of my career. You are one of the best mentors I have, and your thoughtfulness in dissecting the law and its implications for women never fails to inspire me. Many others at the Faculty of Law have generously provided guidance, resources and encouragement including David Wright, Rob Hamilton, Jassmine Girgis, Sharon Mascher, Lyndsay Campbell, and Jonnette Watson-Hamilton. A special thanks to Justice Alice Woolley for her friendship and support always, but especially during these last two years. I was fortunate to meet and interview many people through this research, and I thank all interviewees for their generous contributions to this project. This work would not be what it is iv without the involvement and support of the Ermineskin Cree Nation. Words fall short in expressing my gratitude for every citizen and employee I worked with. Thank you to Chief Makinaw and Council for your considerate contributions and support of this method. My sincerest gratitude to the Elders that patiently sat with me, instilling me with much knowledge. Thank you to the employees who made time in their busy schedules to answer my questions. To the women of Ermineskin Cree who participated in this project, I will always remember your strength and determination. Hai hai to my Cree translators, Rose Makinaw and Marvin Littlechild, for providing such a valuable service to me and the Nation. To all at the Ermineskin Cree Nation: your thoughtful contributions, tenacity, and determination to better your Nation and the lives of your fellow citizens inspired me to continue with this project everyday. I wish to particularly acknowledge the meaningful contributions of Danika Lightning and Josh Littlechild, who worked side by side with me on this research. The dedication you showed to this project amidst family obligations, your own roles and responsibilities at the Nation, and numerous other crises that pop up for you daily, renewed my focus and motivation when I needed it most. Working with you both has forever changed me. Hai hai for all that you do. This work would not have been possible without the support of my friends and family. Thank you to all my friends who were a great support to me throughout this project, but especially to Kathleen Reid, Claire Himsl Matheson, and Amanda Manasterski for always remembering my research topic and never asking me if I planned on doing a PhD. My utmost appreciation and gratitude to Drew Lafond for his mentorship and guidance throughout this research project, his feedback on earlier conceptualizations of this work, and his relentless positivity with everything I do. v I am deeply grateful to my parents who raised me with a love for lifelong learning and support me in all aspects of my life. I thank my brother, Kyle, whose love and resilience inspires me to do better everyday. Thank you to my hounds, Rudy and Ellie, for all their companionship during long writing days at my desk. Lastly, I thank my partner Alex. When I proposed taking two years off to undertake this LLM he did not hesitate for a moment in giving me his full-fledged support. Thank you for your love and patience always. You make me a better person. vi Table of Contents Abstract .......................................................................................................................................... ii Preface ........................................................................................................................................... iii Acknowledgments ........................................................................................................................ iv Table of Contents ........................................................................................................................ vii Chapter One: Introduction .......................................................................................................... 1 Situating Matrimonial Real Property on Reserve ....................................................................... 3 “Indians, and Lands reserved for the Indians” ...................................................................... 3 Sex Discrimination in the Indian Act ...................................................................................... 4 Absence of Domestic Violence Provisions .............................................................................. 5 Focus of Study and Research Objectives .................................................................................... 7 Theoretical Lens and Research Methodologies .......................................................................... 7 Theoretical Lens...................................................................................................................... 7 Research Methodologies ....................................................................................................... 15 Case Study Approach and Feminist Interview Methodology ................................................ 16 Collaborative Research Approach .......................................................................................