Legislation important, but needs massaging

It is hoped that Aboriginal women and children will no longer have to abandon their homes and communities due to relationship breakdowns on-reserve once new legislation comes into effect, perhaps as soon as the fall of 2010.

The legislation known as Bill S-4, Family Homes on Reserves and Matrimonial Interests or Rights Act was drafted as a result of both a nationwide consultation led by Wendy Grant-John and the 2003 Report by the Senate Standing Committee entitled “A Hard Bed to Lie In,” which was drafted following a year-long investigation into the problems associated with the lack of Aboriginal matrimonial property laws in Canada.

Once enacted, the Bill will apply in the event of marital breakdown or the death of a spouse in circumstances where at least one of the spouses is a First Nation member or “an Indian as defined under s.6 of the Indian Act”, and is living on-reserve.

Under current Canadian laws, on-reserve matrimonial property rights are not addressed. This is because the Constitution Act, 1867 determined which legal matters could be dealt with by the provinces and territories, and which could be dealt with by the federal government.
Under section 91(13) of the Act, the provinces and territories were granted the right to govern matters related to “property and civil rights.” These property and civil rights include matrimonial real (homes) and personal property (personal effects, including furniture).

Real property on-reserve, however, is exempted from Provincial jurisdiction by way of s. 91(24) of the Act which gives the federal government jurisdiction over “Indians and lands reserved for Indians.” The federal government has asserted this jurisdiction through the “Indian Act” which does not deal with matrimonial property on reserve.

While the new Bill is generally considered to represent a positive step forward, members of the Canadian Bar Association’s National Aboriginal Law and National Family Law sections have raised concerns regarding various aspects of the law. These concerns and subsequent recommendations for amendments were presented to the Senate Committee on Human Rights on May 31. Members of the public can view the report that was submitted by going to the CBA Web site.

The CBA report addresses a range of concerns with the proposed legislation, including the need to have clearer definitions of terms being used in order to ensure consistency and clarity. The report recommended the granting of federal funding to support the introduction of the new legislation. This funding has been requested to address a number of stated concerns, including the lack of resources that exist in remote communities where travel is required in order to obtain legal support. Another use for the proposed funding would be for legal aid for family matters.

The report addressed the need for the legislation to address circumstances where the spouse seeking to reside in the matrimonial home following marital breakdown is a non-band member and/or a non-Aboriginal person. It was recommended that an amendment be included in the proposed legislation that would require the courts to consider instituting time limits on orders for occupation in those situations in order to ensure that existing Aboriginal rights in relation to the home or land are minimally impaired. The concern is that the non-Aboriginal spouse in the event of death or family breakdown might have young children. If she is granted an exclusive order for occupation without time limits being imposed, it is conceivable that she might occupy the house for fifty or more years. The band in question might have a long waiting list for housing, but they could not use that house for the sake of band members.

According to lawyer Chris Devlin, executive member of the CBA’s National Aboriginal Law section, “judges need to have direction in the legislation regarding the doctrine of minimal impairment. The judge needs guidance to know how long to make these orders.”
Devlin summarized his views on the law.

“I’d like to see the legislation passed. I think it is necessary. It is a matter of human rights. I also think there is a need for a balance between the rights of the individual and the collective rights [of the First Nations Bands].”

Asked about the current status of the legislation, Devlin explained that the Senate committee will now make any changes it deems necessary. Once completed, the Bill will be sent to the Senate and, if approved, it will be submitted to the House of Commons. Should the Bill be passed in the House of Commons, it will then be granted Royal Ascent by the Governor General, at which point it becomes an enforceable law.

The 2003 Senate Standing Committee Report, “A Tough Bed to Lie In” and the CBA Report are both available online.