Suspicions raised as bill takes odd route to become law

It wasn’t received well the first time. It didn’t go through the second time and died on the Order paper the third time.  The Conservatives are still facing opposition on the Matrimonial Rights and Interest Act, or Bill S-2 as it’s currently known.

The bill was debated in the House of Commons on Nov. 1. During the debate, Opposition MPs Jean Crowder (NDP) and Carolyn Bennett (Liberal) and Green Party MP Elizabeth May had many questions for the Conservative Member of Parliament responsible for the Status of Women, Rona Ambrose.

Crowder was supplied with a lot of ammunition. The Royal Commission on Aboriginal Peoples (RCAP), for example, had in 1996 made recommendations for the division of property after a marital breakdown. Those recommendations were never implemented.

Bennet had court cases and knowledge of jurisdictional issues. Provincial legislation conflicted with Indian Act legislation and the bill contradicted the United Nations Declaration on the Rights of Indigenous Peoples due to the lack of free, informed and prior consent.

Crowder also pointed out that the proposed legislation didn’t start in the House of Commons, as is usually done when introducing a bill. It instead originated in the Senate.

“Others in the House have noted that the bill was introduced in the Senate and is now referred to the Status of Women committee,” said Crowder. “Although this is a very competent committee with very capable members, there are questions arising. First of all, about why the bill was introduced in the Senate rather than the House of Commons, where one would think it legitimately should have been introduced.”

Crowder said the NDP will not support the bill.

Pam Palmater, chair of Indigenous Governance at Ryerson University, also takes issue with where the bill originated from. In a telephone interview, she said, “You have this really heavy, paternalistic legislative agenda which is actually moving far backwards in time, in terms of federal control, and what they’re doing is removing the sober second thought concept from the Senate, so they’re putting all the bills in Senate, having them pass as a majority when the Senate is supposed to function as a sober second thought for government action.”

Palmater suggested the government was only doing that for the majority of First Nation-type bills, not for any others. She said the bill, if implemented, would introduce non-Native interest on First Nations land. That same issue was discussed during the debate on the bill.

Crowder said, “… the larger context of this is about land regimes on reserves. They are not private property… they should look at the larger context around Aboriginal rights and title.”

When the issue was brought up during the debate, it was dismissed. The Parliamentary Secretary for the Status of Women, Susan Truppe said, “… the bill clearly states that it doesn’t affect the title to reserve lands or change the collective status of reserve lands and it does not allow non-members to make claims of ownership to reserve lands. The provisional federal rules will not lead to non-Indians or non-members acquiring permanent interest in reserve land because exclusive occupation orders and emergency protection orders are temporary.”

Palmater, who is also a lawyer, has studied the bill and written papers about it. Her analysis is that the bill will indeed introduce non-Native interest on reserve lands. In her warning about the bill, she said, “What’s worse about this bill is, in the case of an emergency protection order, if you have a non-Native wife and a Native husband, under this new legislation, they can accuse the Native husband of violence without ever being charged or convicted, take him out of the house, give an emergency protection order for the non-Native wife and then extend those orders up to an entire life interest. As for the emergency protection order, there’s no notice to the First Nation for that.”

MPs also questioned why the bill will go through hearings in the future through the Standing Committee on the Status of Women instead of the Standing Committee on Aboriginal Affairs. At issue was the lack of knowledge of First Nation land rights on reserve in the Status of Women Committee.

There’s even more bad news about the bill. Bennett pointed out the bill lacks financial resources for the purposes of implementation.

“This afternoon we will see the same thing on the water act, that “thou shalt have clean drinking water” and there are no resources to make sure it happens, Bennett said. “This is exactly the same thing. In the objective of the bill on matrimonial real property, there are just not the resources to actually give women real choices with their families for them to remain safe in situations of violence.”

Native Women’s Association of Canada Executive Director Michéle Audette also wondered about resources that go beyond the financial. In a telephone interview, she said, “In all the violent situations we have or are facing in our communities, what are the protections going to be for our women? And who’s going to reinforce that? First Nations probably don’t have the capacity financially or humanly to give those services.”

As it stands, the bill has yet to go through second reading and there is no time frame for completion of that stage, nor is it known when Bill S-2 will be referred to a parliamentary committee for review.