Proceedings of the Standing Senate Committee on
Human Rights
Issue 19 - Evidence - May 14, 2007
OTTAWA, Monday, May 14, 2007
The Standing Senate Committee on Human Rights met this day at 4:05 p.m. to consider the Minister of Indian Affairs and Northern Development's response to the recommendations contained in the committee's report: A Hard Bed to Lie in: Matrimonial Real Property on Reserve, tabled in the Senate on November 4, 2003.
Senator A. Raynell Andreychuk (Chairman) in the chair.
[English]
The Chairman: Honourable senators, we have with us today the Native Women's Association of Canada to respond to and update us on their opinion with respect to the issue of matrimonial real property on-reserve.
For the benefit of the record, the Standing Senate Committee on Human Rights produced, in November 2003, a report entitled: A Hard Bed to Lie In: Matrimonial Real Property on Reserve. That was the interim report, and since then there have been updates twice, wherein the standing committee indicated that they wished this matter be proceeded with expeditiously. Ministers have been called to place on the record their plans of action. We have called various groups in the community that are affected. We are now empanelled, as a result of the indication from the Minister of Indian Affairs and Northern Development, with respect to consultations on which he has embarked.
Minister Prentice had appointed Ms. Wendy Grant-John as his ministerial representative. She was given that title to do consultations with respect to matrimonial property on-reserve. Her report has now been presented to the minister, and we are continuing to follow up. We would now like the reactions of the Native Women's Association of Canada.
Before I do so, in respect of the Senate standing committee, which was chaired by the late Senator Maheu at the time, the preface to the report had a quote. I would like to read it for the record.
I believe that one of the basic rights we should be able to enjoy is the right to call a place, a community or a structure ``home.'' Home is a place where we are safe and protected by family and friends. It is our private spot, where we can lock out the cares of the world and enjoy one another. It is also the place where, as a couple, when we plan a family, we know that this is the place where they will be safe, protected and loved. As a couple, you take a structure, and with personal touches from each of you, you make this your private world. You open your private world to family and friends, making them feel welcome when they visit you. However, make no mistake, this place is your private world.
The final paragraph of the preface went on to say:
This would not appear to be the case for on-reserve women, as they hold no interest in the family home. There is no choice as to who has to move. It is the woman and, in most cases, it is the woman and her children. What a choice: be homeless or be in a loveless relationship, maybe an abusive relationship. Is that what Aboriginal women deserve? No, it is not. Is it humane? It is definitely not.
That was the preface to the work. For the benefit of those who have not read the report, the report indicates that this issue must be resolved. It does not go into necessarily the modality to use. It implies that there would be consultation with all those who are affected and that this continuing problem cannot go unresolved. Therefore, the minister embarked on the consultations. The report has been filed. It is a very lengthy and thick report.
I now invite Ms. Sherry Lewis, Executive Director of the Native Women's Association of Canada, to put on the record anything she wishes with respect to the consultations and the ongoing issue of matrimonial real property on- reserve.
Then we will turn to Ms. Debra Hanuse, Director, Law and Legislation, Assembly of First Nations. Accompanying the Native Women's Association Executive Director is Ms. Mary Eberts, Legal Advisor, and Ms. Yvonne Boyer, also Legal Advisor.
Welcome to you all. We will proceed after the two opening statements to questions from senators.
Sherry Lewis, Executive Director, Native Women's Association of Canada: I thank the Senate committee and their members for all of their hard work, especially this follow-up, to ensure this important issue is addressed in the way it was intended.
On behalf of the President and the Board of Directors of the Native Women's Association of Canada, NWAC, and the women across Canada who provided their valuable input on the matrimonial real property, MRP, solutions initiative, I thank you for inviting us here today.
First, I wish to highlight how important it has been for NWAC to be an equal partner in this initiative. We are convinced that the solution to the MRP problems requires more than correcting the legislative gap. MRP issues are the most blatant evidence of the discrimination against all women — Aboriginal and non-Aboriginal — that results from the matrimonial real property laws that apply on-reserve.
The past eight months have been a learning experience for all of us involved in MRP, as the stories we heard are heartbreaking. Aboriginal women on the verge of a marriage breakup, divorce or other circumstances are being forced to leave their matrimonial home on-reserve and are being driven into poverty, despair and danger.
These women are not alone. Children are often involved, and they bear the brunt of this desperate crisis over which they have no control. They are innocent victims of a flawed process. NWAC is trying to change that in a constructive, fully inclusive and detailed manner.
On April 20, the Minister of Indian Affairs and Northern Development, Jim Prentice, released the 500-page MRP report of Indian Affairs and Northern Development Canada, INAC, Ministerial Representative Wendy Grant-John. Following the public release, the minister has provided no comment as to whether or not he supports Ms. Grant-John's report. NWAC, however, was impressed with the work completed by the ministerial representative and supports the conclusions and recommendations she presents in her report.
NWAC supports First Nations' continued inherent right to their lands and territories and their right to establish MRP solutions. The Aboriginal women we consulted with reiterated this. They stated that they are from these communities and that they want to address these issues within their own communities. The women who provided solutions in this process are our daughters, sisters, mothers, grandmothers and granddaughters. They want the intergenerational cycle of abuse and marginalization to end. They want there to be a collective effort to bring the required change in their communities through the creation of a responsive and comprehensive MRP process. Now, more than ever, they want to heal and come together to reclaim their way of being.
The recommendations and conclusions contained in the ministerial representative's report must be read as a whole, which together offer all of the necessary protections for First Nations women and their families. I want to clarify some specific points.
NWAC fully supports the recommendations contained in the ministerial representative's report. NWAC supports the implementation of both legislative and non-legislative solutions to MRP. To be effective, both solutions must be implemented in a complementary way. Non-legislative solutions are required to address the capacity of communities to move forward to resolve MRP as well as to remove issues linked to MRP, such as violence against Aboriginal women.
While I indicated that NWAC has been an equal partner, that is until recently, when INAC made a decision to unilaterally exclude NWAC and the Assembly of First Nations, AFN, as partners. NWAC was invited to attend meetings in April, during which it became clear that INAC is making choices and plans without fully involving their partners. NWAC has attempted to provide advice and feedback, but we are uncertain whether any of our ideas have been taken into consideration. We are clear that any MRP solutions must be consistent with international norms and standards, as noted in the ministerial representative's report.
While NWAC has done the best it could to advance the MRP process to this point, we have now been sidestepped in favour of INAC's agenda. This unilateral movement by INAC is not in the interests of the Aboriginal women who we are here to represent, many of whom took great personal risk to come forward and tell their stories.
We must ensure that whatever legislation is drafted protects the best interests, safety and protection of these Aboriginal women and their children. We need to avoid another flawed piece of legislation, to be cognizant of problems encountered by Bill C-31, and to avoid the mistakes that have historically been made in implementing legislation without proper consultation and partnership with those affected.
It is crucial that non-legislative supports are implemented as well, because legislation alone will not solve the MRP issue. The lives and safety of First Nations women and their families depend on it.
Debra Hanuse, Director, Law and Legislation, Assembly of First Nations: Good afternoon. Thank you for the opportunity to speak before you today and to share our views on the ministerial representative's report and on what solutions are required to resolve this issue.
My name is Debra Hanuse. I am the Acting Director of Law and Legislation rather than legal counsel for AFN. I am here on behalf of the AFN and National Chief Phil Fontaine, who sends his regrets that he could not be here today.
AFN is a national organization that represents 633 First Nations across the country, as well as First Nations citizens, regardless of where they reside, their gender or various other criteria.
You asked us for an update on where things stand, so before commenting on the ministerial representative's report, I will give you a brief thumbnail sketch. Phase 3 of the minister's process consisted of seven days in mid-February. During that period, the parties, despite best efforts, were unable to reach consensus on an option to address matrimonial real property issues on-reserve. In accordance with her mandate, the ministerial representative recommended an option for the government to consider. The minister has made it clear that he intends to table legislation on this issue in the spring.
As Ms. Lewis noted, there were subsequent meetings on April 19 and April 26. At that time, INAC officials advised us that they were in the advanced stages of legislative drafting at that point and that there were few opportunities for reorientation of our process, which we had requested consistently throughout the minister's nationwide process. Nonetheless, INAC officials invited us to participate but essentially told us there would be few opportunities for our input to be factored into any legislative solution that would ultimately be developed.
Our understanding at this point is that the federal government is proceeding with the development of a legislative option that would likely incorporate many of the features of the interim federal legislation that has been recommended by the ministerial representative.
To backtrack for just a moment, on March 9, in anticipation that the minister would have before him recommendations that were not a consensus document, the AFN wanted to ensure that the minister had before him the AFN's views on preferred options and approaches to addressing this issue. At that time, we presented the minister with a document that has been provided to you today for your review. It is a document entitled Reconciling First Nations and Crown Jurisdiction over Matrimonial Real Property on Reserves and Addressing Immediate Needs of First Nations Families. That document sets out in detail how the AFN would like to see this issue resolved. Like everyone else, we feel this is a very important issue that requires resolution.
To bring you fully up to speed, on May 2, after the meetings with INAC officials and after being advised that this piece of legislation was already in the advanced stages of development, the national chief sent a letter to the minister expressing the AFN's ongoing commitment to work collaboratively, but also expressing concerns about the time frame for seeking First Nations input, which would effectively have been a two-week window from the date of those meetings until the point in time when other processes would unfold and it would no longer be possible to engage with AFN and NWAC on those issues. We also advised the minister that the process did not meet the expectations of a meaningful process that would generate an enduring solution for MRP on-reserve.
We are interested in workable and enduring solutions to this issue, not just in partial solutions or solutions that do not address the needs of all of those affected by the legislative uncertainty on this issue.
This essentially brings me to my comments on the ministerial representative's report. In the first part of her recommendation, she recommends recognition of inherent jurisdiction over matrimonial real property on-reserve and First Nation legal traditions. We have had direction from the Supreme Court on this. They have given us an interpretation of section 35 of the Constitution Act. It contains a promise of rights recognition and also requires reconciliation of Crown and First Nations jurisdiction. The recommendation by the ministerial representative is entirely consistent with this direction from the Supreme Court of Canada. It is also something that the AFN has consistently advocated from the outset of this process.
Of course, the AFN strongly endorses the ministerial representative's recommendations regarding recognition of First Nations jurisdiction. However, the Supreme Court of Canada also offered us other important direction on this question. They told us that reconciliation was to be achieved by good-faith negotiations. Therefore, we submit that the process of achieving reconciliation and recognition cannot be achieved through the unilateral imposition of legislation by the federal government on First Nations peoples.
We submit that a process of negotiation is required before any legislation on this issue can be tabled. We draw your attention to a political accord that was signed by the federal government and the Assembly of First Nations in May of 2005. The purpose and intent of the accord was specifically to commit the parties to work jointly to promote meaningful processes for reconciliation and implementation of the rights in section 35 of the Constitution. In other words, the political accord provides a vehicle that is specifically directed to achieving the reconciliation now demanded by section 35 of the Constitution.
As we have throughout this process, we urge you to urge the minister to address MRP issues on-reserve through the reconciliation process set out in the political accord. In this document, we also speak about how the NWAC organization could be involved in an exercise of this nature and would welcome any questions you might have on that.
That brings me to the interim federal rules that the ministerial representative has recommended. We certainly appreciate all of the considerable effort that the ministerial representative put into finding a solution that would address the interests of all parties who participated in the process, including the federal government, NWAC and First Nations.
However, we have concerns that some of those interim rules might result in an infringement of rights protected under section 35 of the Constitution. With the remedy of interim exclusive possession, there is considerable judicial recognition of First Nations. For example, there has been recognition of Aboriginal title and reserve lands; First Nations jurisdiction over family law matters, including adoption and marriage; and, where title is proof, there is recognition of the right of First Nations to manage lands held by Aboriginal title. As well, there has been some recognition of self-government rights in cases such as the Campbell case in British Columbia. All of these factors support the view that First Nations have Aboriginal title and treaty rights and interests in their reserve lands.
Aboriginal title is a right to exclusive possession. Granting rights of exclusive possession to non-members, in particular, may result in an interference with the Aboriginal title of First Nations in their reserve lands. Therefore, extending this remedy to non-members may result in unjustifiable infringements of the rights under section 35 of the Constitution.
There has been some suggestion that, because this remedy would be of a temporary nature, this would not result in any significant infringement. We submit that this is not accurate. Interim exclusive possession can be for periods of up to 18 years, if the order is with respect to the minor child reaching an age of majority. It is not just a temporary measure; often it can be for extended periods of time.
We would also like to note that few couples on-reserve own their homes. That brings me back to the wonderful quote that you offered us at the beginning where a right to call a place and a community and a structure home is a fundamental right to which everyone should be entitled. We very much wish that for First Nations. The sad reality is that only 30 per cent of all First Nations on-reserve own their homes and 70 per cent of all housing on-reserve is social housing. Even if we were to develop a legislative solution of this nature, it would only apply to a maximum potential number of 30 per cent of all First Nations living on-reserve.
There are still 70 per cent of First Nations families out there who do not own their home. This is because of prohibitions in the Indian Act against mortgaging, seizing and sale of reserve lands. First Nations cannot go to the bank to secure financing to build their own homes, so they are dependent on the federal government or their bands for financing. This has been a significant bar to homeownership which means that, when looking for solutions to MRP issues on-reserve, we will only be able to reach a limited number of First Nations families by introducing measures that do not provide remedies for social housing that is generally rented from bands.
Potentially interfering with the constitutionally protected rights of First Nations in order to extend a 30 per cent solution to First Nations families on-reserve would hardly amount to a justifiable infringement of constitutionally protected rights.
We would now like to turn our attention to compensation orders. The Supreme Court of Canada has already ruled that compensation orders are available to First Nations couples on-reserve. Including remedy, interim federal rules would merely codify existing remedy. This will not provide any new relief to First Nations families.
The picture gets grimmer. Due, again, to the nature of reserve lands and the provisions that prohibit mortgaging, seizure and sale of reserve lands, most couples have challenges in enforcing compensation orders, if they are able to secure them. Because reserve lands cannot be mortgaged, First Nations couples cannot access capital in order to pay each other out and comply with enforcement orders.
Section 89 is one of the key provisions in the Indian Act that prohibits lands from sale or seizure. We do not recommend that there be any tinkering of this provision but, if there is tinkering, it should not occur without significant consultation with First Nations. This provision, similar to many others in the Indian Act, is specifically designed to protect reserve lands from alienation, and to preserve those lands for the exclusive use and benefit of members only. Any interference with those protections will have significant impacts on First Nations and First Nations communities. We would strongly advise against any tinkering with these provisions. This view is shared by the ministerial representative. In her report, she states that there should be no attempt to open section 89 of the Indian Act in any way that would allow any seizure of reserve land for the benefit of non-members.
The ministerial representative goes on to recommend that the preferred approach with regard to section 89 of the act would be to recognize First Nations jurisdiction to deal with this issue, to exercise jurisdiction over encumbering property interests in their land, including rules affecting the exemption of section 69 of the Indian Act. The AFN, for obvious reasons, fully endorses the recommendation by the ministerial representative as there is significant potential to undermine the protections in the Indian Act intended to prevent reserve lands from being alienated or removed from the exclusive use and benefit of members.
We are also mindful of the need for immediate solutions for First Nations people affected by the legislative uncertainty on this issue. With this in mind, we developed the options set out in the document tabled before you today. We refer you to this document. There is no one single solution. We put a great deal of effort into finding as many solutions as we could find to address the immediate needs of families affected by this, because we want to avoid any potential infringements of Aboriginal rights or title.
Therefore, we ask you to review those recommendations set out in this report and ask for your support in recommending to the federal government and to the minister that serious consideration be given to these; particularly in light of the significant potential infringements that might occur if we adopt the interim rules and the challenges that would be involved in enforcing compensation orders. Codifying them gives nothing more meaningful to people in communities than is already presently available.
This brings me to the duty to consult. We know what the Supreme Court of Canada has said on this question in the landmark Haida case. They told us that where the Crown has knowledge, real or constructive, of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it, then the Crown has a duty to consult.
In other words, there is no room for the exercise of discretion once the Crown has knowledge of an existing right and contemplates conduct that might affect those rights. The Crown must consult with First Nations in those circumstances.
The ministerial representative did not make any specific recommendations on the issue of consultation. However, she did obtain legal advice and reported on and appended those opinions as part of her report. It is worth noting that legal counsel retained by the ministerial representative similarly concluded that the Crown has a duty to consult with First Nations in regard to the proposed legislation as a result of their collective interests in reserve lands. It is also worth noting that the legal counsel for the ministerial representative noted that even at its most minimal, the duty to consult requires direct engagement with each First Nation.
Despite the conclusions reached by legal counsel for the ministerial representative and our various submissions to the federal government on this question, we have been advised that the federal government does not plan to engage in consultations with First Nations on any legislation that is currently being developed. We would ask for your assistance in persuading the government to reconsider this decision and comply with the direction provided to us by the Supreme Court of Canada to engage in direct consultations with First Nations on legislation that has significant potential to affect constitutionally protected rights.
There are three more sections of the ministerial representative's report. Briefly, I will provide some comments on those.
First, we would like to comment on the ministerial representative's recommendations with regard to federal options set out in the federal government's consultation document. Two of the three options proposed by the federal government would have provided for the application of provincial laws to reserve lands. We have been advised that that is not an option that is actively under consideration at this point in time. However, until legislation is tabled, anything can happen. Therefore, we would like to ensure that you have our views on this question. Our view is that we support the conclusion reached by the ministerial representative that the application of provincial laws would constitute unjustifiable infringements and pose too many practical problems in terms of harmonization and conflict of laws. The AFN agrees with this conclusion and would strongly recommend against the adoption of any solution that would involve the application of provincial laws.
We would like to turn our attention to recommendations made by the ministerial representative with regard to financial resources required to implement any solution ultimately adopted to address matrimonial real property issues on-reserve. The ministerial representative identified a number of areas that require resources. These included resources for First Nations to develop their own laws and to consult with their citizens. She also noted that resources are required to develop and further develop existing dispute resolution mechanisms and to ensure access to justice for First Nations citizens. The AFN strongly endorses the ministerial representative's recommendations with regard to resource requirements for implementing solutions to matrimonial real property issues on-reserve, and we echo the sentiments expressed by NWAC that we can look to challenges implementing Bill C-31 to know what happens when we do not turn our minds to ensuring that adequate resources are made available for implementing legislation of this nature.
Finally, we would like to comment on some of the non-legislative options recommended by the ministerial representative. These included — and I alluded to them a moment ago — recommendations to provide First Nations with resources to establish dispute resolution bodies. If recognition is part of the overall package, then the way in which First Nations communities will likely resolve these would be through many dispute resolution mechanisms in their own communities.
In order to implement recognition, it would be vital to include, as part of the comprehensive package, provisions for the implementation of dispute resolution processes and mechanisms in First Nation communities.
Another non-legislative solution recommended by the ministerial representative was to conduct an evaluation of existing programs, such as the First Nations Land Management Act and the Regional Lands Administration Program, RLAP, which are programs designed to improve the land registry system, as well as the 53/60 Delegated Authority programs and to address any shortfalls in those programs.
We have an elaboration of some of these in our report. For example, in the First Nation Land Management Act, FNLMA, there are 51 First Nations who want to join those currently developing their laws, their land laws and their matrimonial real property codes through the FNLMA. However, there are not sufficient resources to accommodate those 51, who are essentially in a waiting pool pending their opportunity to get in and actually start doing that work. If there were resources made available to those 51 First Nations in the waiting group, then there would be a total of about 109 or 110 First Nations across Canada who, through the FNMLA, would be developing their own MRP codes and their own land laws. There is an existing solution that would not interfere with the constitutionally protected rights of anyone, and it provides a vehicle through which — but for the lack of resources — this could be addressed by a large number of First Nations across the country.
We would like to draw your attention to the non-legislative options we have proposed in our document tabled with you today. In addition to endorsing the non-legislative options recommended by the ministerial representative, we would also ask you to recommend to the federal government that serious consideration be given to the non-legislative options that we have set out in our document.
Next steps: Where do we go from here? Section 25 of the Constitution Act provides some direction that there be no abrogation or derogation of section 35 rights when seeking to achieve appropriate balance between the protections afforded to individuals in section 15 of the Charter and protections afforded to collective rights in section 35 of the Constitution Act of 1982.
Our concern is that the importance of protecting collective rights has somehow been lost in the debate, and we wish to remind you that it is important to factor these collective rights into the equation.
We would also wish to note — just to summarize and provide you with an overview — that the adoption of interim federal rules would only offer a partial solution, as non-members and custom lands would likely be excluded from any legislative solution to matrimonial real property issues on-reserve. The interim federal rules would not offer any remedies to the majority of First Nations on-reserve who do not own their home. As indicated earlier, 70 per cent of First Nations do not own their home, and that is also set up in this document.
On process consideration, the reconciliation now demanded by section 35 of the Constitution requires good-faith negotiations. We would submit that the federal government cannot proceed unilaterally with the development of any legislation that provides for recognition of First Nations jurisdiction over matrimonial real property issues on-reserve.
We would respectfully submit that considerably more work is required to ensure compliance with sections 15, 25 and 35 of the Constitution Act.
We strongly encourage you to recommend to the federal government that they return to the table with the AFN and NWAC to complete the joint development of solutions to matrimonial real property on-reserve in a manner that is consistent with the direction provided by the Supreme Court of Canada. We also encourage you to recommend that the government allocate sufficient time for completing this work as it is more important to get it right and ensure meaningful solutions are provided to people at the end of the day. What good is building a palace if the people you build it for cannot open the door and get in? Access to justice and meaningful solutions would provide relief to the majority of people in First Nations communities rather than the small percentage who own their homes.
As the Supreme Court of Canada has directed, it is vitally important that the Crown engage in direct consultations with First Nations on any options that are developed.
We would, in closing, ask for your assistance in ensuring that the individual rights of our members are protected, that our collective rights are not sacrificed in the interests of political expediency and that any remedies that are ultimately adopted to address MRP issues on-reserve offer real and meaningful solutions to our people. That concludes our submissions.
The Chairman: Thank you for both of those submissions.
Ms. Hanuse, you said more work is required. I remember that statement some 30 years ago when I worked in family court. More time was always needed to work on these solutions while individuals were very much in distress — children and women who kept coming before my court.
On the one hand, it is a very complex problem; it should wait for further work. On the other hand, it is within the ambit of the First Nations people to determine the rules. You want to have further consultation with the minister before any laws are in place. However, the work has been done within the leadership of the First Nations, and more work is required. How much more time, on this issue, do you believe First Nations leaders need? All the issues have been identified. If I accept your submission that it should be the leadership within the reserves that will determine some appropriate matrimonial property respecting the reserve, how much more time do you need?
Ms. Hanuse: First Nations have absolutely no interest in delaying the resolution of this issue. It is not just a matter of First Nations leaders finding a solution. We, in partnership, have to find solutions together to provide a framework, so that there will be certainty for all parties involved; there is a need for harmonization of rules, et cetera.
How much more time is required? We had seven days to build consensus during the consensus-building process.
The Chairman: That is not my question. I put aside the consultations. From your point of view, seven days was not sufficient. Not addressing any initiative, assuming the minister was to do nothing, you are saying it is the responsibility of the leadership within First Nations reserves to resolve this outstanding issue that has been there for decades. You have correctly identified the issues — I want to read it further as I read it very quickly.
How much more time do you need to consult within your own reserves to come up with your solution? That is the consultation I am talking about. I understand the other. I am frustrated, because I hear that 70 per cent of the housing is social and only 30 per cent of First Nations people own their homes — that is the same kind of rebuttal they heard with the Homesteads Act back in the 1920s. However, I do not go back that far. Many people did not own land; they were renting properties. The same kind of rebuttal was heard: Let us not put in the Homesteads Act to protect them because look at all the people left out, and yet we moved on it; women had to have some protections. It is not just one protection they may need; there may be a whole array of answers, not just matrimonial property. Some do not live on- reserve, some live elsewhere. It will be a long-term process. However, to get at this one issue, how much more time do you need? Incidentally, I am not being tough on you, because we sat here for quite some time with minister after minister asking them how much more time they needed to consult. They put a process in place, and we will take into account whether they should spend more time consulting.
I want to know, if the federal government did nothing and the moral and legal obligation you say lies with the leadership, how much more time will it take before there is a solution to the matrimonial property issue — not other related issues. To be fair, some people have come up with a solution.
Ms. Hanuse: Before answering your question, I would like to offer a bit of context. In the discussions that occurred through the minister's nationwide process, there was not any significant disagreement with the notion of First Nations assuming jurisdiction in this area. It was recognized that that process of developing regulations within First Nations communities that would involve all members of First Nations communities, both men and women, may take some time to unfold. There was also recognition that something needed to be done in the interim to provide immediate relief, which is why we proposed many non-legislative solutions in the document that we tabled.
Unlike the women who were impacted by the Homesteads Act, they did not have collective rights that also needed to be factored in. That was a long time before 1982 when collective rights were constitutionally protected. We are not only talking about individual rights but also collective rights. If section 35 of the Constitution is to have any meaning then it cannot be ignored in the equation or the solutions that we are seeking.
It is a slightly different context. How much time is required? Community processes — when they have developed their own legislation — can take anywhere upwards of two years to develop regulations that they are comfortable with and that provide enduring and workable solutions to their communities. However, in our document, there are many interim solutions that could be put into place. For example, if First Nations people cannot access capital to ensure a fair division of matrimonial property when they break up, the spousal compensation loan fund provides a practical solution. There could be some legislation enacted around that. That could provide immediate relief to couples. It would be loans, which would not result in a burden to the taxpayer, as they would be fully repayable to the Crown. First Nations couples could then access capital and be able to pay out the other spouse. That would provide a fair, immediate and just resolution to many matrimonial real property issues on-reserve.
We are not saying delay and provide no immediate relief. We are saying, because of all the different rights involved, the need to achieve an appropriate balance between sections 15 and 35 rights and the strong direction provided to us by section 25 of the Charter that states that there would be no abrogation or derogation of rights that we have responsibilities collectively. Those responsibilities mean we cannot barrel ahead with the unilateral solution to this issue that does not properly factor in all of these various interests. All we are saying is go back to the drawing board — and we can have anyone attest to the hard work and commitment that we all demonstrated throughout this process to find solutions — seven days was not enough. However, with 14 days or 21 days, who knows what miracles we can pull off in finding a global solution. We and NWAC are committed and willing to go back to the table to find a solution that is workable and enduring and that meets all of our interests and needs.
The Chairman: Ms. Eberts, would you like to comment on how much more time is required?
Mary Eberts, Legal Advisor, Native Women's Association of Canada: I will comment on a couple of things. It is important to mention that we do not know whether the legislation, which the federal government is preparing without consulting us, will apply to the 70 per cent of people who are not land owners. Theoretically, it is possible for such legislation to apply to leasehold interests, but we do not know for sure because we have been excluded from the table. Similarly, we do not know whether the federal legislation will apply to custom allotments. Discussion at the consensus- building table went both ways, with the federal position remaining unclear. It is so unfortunate that we have been excluded from the table because these questions are now to be determined solely by the federal government without the input of the people who truly know the situation on the ground from reserve to reserve.
As far as the timing is concerned, I will make two points: On the first point, precedent was set in the First Nations Land Management Act when it imposed a one-year time limit on First Nations for preparing their land codes, and very few of them were able to comply with that limit. Before the ministerial representative's report, experience showed that it could take up to three years for the First Nation to develop its code. When we talk about matrimonial property law in the off-reserve context, we should remember that we already have a legal system and a land registry in place. We are changing only the setting of some dials, but the system is in place. When we talk about property on-reserve, the land registry system run by INAC is imperfect, full of historical anomalies, and many communities are outside of it to begin with, making it difficult to develop codes in that kind of circumstance.
In her report, the ministerial representative proposed that there be interim federal legislation to look after the concerns of women. Ms. Lewis told the committee that the NWAC supports the recommendations of the ministerial representative. We also support the recommendation in her report that the Government of Canada seems to be leaving in the dust, and that is that there be a capacity building for First Nations to develop their own property codes and their own alternative dispute resolution mechanisms. If federal legislation is meant to be an interim solution but no resources are given to First Nations communities to help them in the substantial task of developing these codes, then the interim solution will become the permanent solution, and no one wants that.
On the second point, the Royal Commission on Aboriginal Peoples recommended that the government recognize First Nations jurisdiction in the family area. The commission also made a strong recommendation that women be fully involved in the preparation of legislation at the First Nations level. We believe that is mandated by section 28 of the Charter, which applies to section 25 of the Charter — the section that protects historical rights — just as section 35(4) applies to section 35(1). The capacity building is not only critical for First Nations but also for organizations such as the Native Women's Association of Canada and its locals to involve women fully in the development of these codes.
We agree that the process will take a great deal of time. Meanwhile, we are in favour of the ministerial representative's recommendation that there be a consensus-built federal legislation, which we are not getting at this time.
The Chairman: I would invite the witnesses to supplement their responses with further presentations to the committee in writing should there be areas for elaboration.
Senator Fraser: I apologize profusely for my late arrival. There was nothing I could do about it and it was not my wish to be late.
As the Chairman said, this has been on the agenda for 30-35 years or longer. Certainly, it has been about 30 years since I had my first call from Mary Two-Axe Early, and here we are again. When it is on the agenda, everyone is inspired with good will, but we simply do not get any further than that.
I have two statements that I would like you to comment on. First, as is often observed, the perfect is the enemy of the good. If we wait for the perfect solution to the matrimonial property regime, committees will be meeting in this room 100 years from now saying, ``Wait, more consultation is needed; it is not perfect yet.''
Second, on the federal legislation currently in preparation by the minister, I have no idea what is planned, because I am not in his circle of confidence. It occurred to me that whatever he proposes might have the benefit of obliging people to have not only good will but also an impetus to act and oblige First Nations by making this a first priority to prompt positive outcomes. Could you react to both of those statements?
Ms. Eberts: The Native Women's Association of Canada is no stranger to that long hiatus of which you spoke. We have been trying for decades to get this issue on the public agenda, and it was only after we sued the federal government that there seemed to be any interest in policy development on their part.
We believe that the solution recommended by the ministerial representative is sensible if both pieces of it are put in place. The first piece is the interim federal legislation, and it is a big assumption that it will be adequate. Assuming it is adequate, the necessary second piece is the capacity building. If there is no capacity building, instead of having a community level process for developing the property codes, we will have one or two or more First Nations challenging the legislation in the courts. The Sawridge Band has had Bill C-31 in court since it passed in 1995. I am representing NWAC in that trial, and it is still going on.
Without the capacity building at the local level, the interim solution will not serve the purpose that you have identified, which is to get things rolling at the community level. I believe that is what the ministerial representative's report wanted, the two-pronged approach.
Ms. Hanuse: I have a few comments to offer on the points raised. We are not looking for a perfect solution. We are looking for a workable and enduring one, one that does not just reach a small subset of First Nations, but addresses the needs of all First Nations people who require remedies from the courts or from some source to address their interests.
On the question of this issue having been around for a number of years, yes, it has been around for a number of years. However, it is only very recently that First Nations have been provided with the resources to participate in the debate. We are very grateful to the minister for his courage in setting up a process of this nature, giving it resources and providing us with an opportunity to go out and engage in direct dialogue with our citizens to obtain their views. It has not been done before in the history of Canada in addressing an issue of this nature. The minister has to be commended for that, but he has not given us enough time to do the work.
We have put considerable effort into finding solutions. We were very close to getting there. We are not asking for 20 more years, by any means. We are asking for enough time to get back to the table and ensure there is a proper balancing of interests. We have important collective interests that have not been fully factored into this debate. Give us a window to get back in there, to find solutions that are workable and that will not find us back in court because someone is not happy with the outcome. We are not looking for delays. We are looking for real and meaningful solutions.
Senator Poy: This question is mainly for Ms. Hanuse. You mentioned the 30 per cent of people who own their homes on reserve land and the 70 per cent who do not. In the case of a separation or divorce, can those who own the homes sell them? Do they also own the land on which the homes are built?
Ms. Hanuse: It is a bit of a mess. It is not quite as clear cut as you might think. You have to think about land on a reserve separately. There is the land, and there is the home or improvement on the land. Seventy per cent of people do not own the home. Fifty per cent of land on-reserve is custom allotment and 50 per cent is certificate of possession, CP. You might have any combination of somebody owning the land on which the house sits but not owning the home; or they might have an interest that is not recognized in the Indian Lands Registry as a custom allotment and might have an ownership interest in the family home on the reserve. There is any number of possible variations that could unfold.
Senator Poy: In that case, how does one divide property in a separation? I am trying to work it out in my mind. If one does not own it, one cannot sell it.
You just mentioned that if First Nations people could go to the bank to borrow money, they could borrow it to pay off the spouse. Why would the bank loan someone money unless he or she has an excellent job or equity? How do they get these loans?
Ms. Hanuse: That is exactly why there is a need for a spousal compensation loan fund. First Nations cannot go to the bank on the strength of any real property they own on the reserve. Ministerial guarantees, CMHC or band funds to build the home is where they have to go.
If a First Nations couple on-reserve separates or divorces, and they want to sell their home in order to pay off their spouse's interest, they will have to go to the bank or to their band. There are chronic housing shortages on-reserve. It is not likely their band will have extra money to assist couples in dealing with matrimonial real property issues on- reserve, which is a very practical barrier to enforcement of compensation orders.
Senator Poy: What is your suggestion? Is it that the government should step in in a case such as this? I do not know the solution.
Ms. Hanuse: The solution on an interim basis would be to establish a compensation fund and have that fund in place for as long as it takes for First Nations to get their own rules in place. Once First Nations have their own rules in place, there would be solutions there with respect to enforcement of compensation orders.
On an interim basis — let us say two to three years, if that is what it takes to develop laws — that compensation fund could be available for that period of time. A fixed amount of capital can be thrown into that on an as-required basis. It would not be allocated to each First Nation. It would be based on if there is a matrimonial property interest in a First Nations community or if there is a couple that needs to access this fund in order to deal with matrimonial real property issues.
Of course, if a couple has no ownership in the home, there is nothing to divide, in which case, First Nations housing policies could adequately deal with that on an interim basis.
Senator Poy: How much support do you get from the men on-reserve proportionately? Would the men support the solution?
Ms. Hanuse: We do not have the ability to quantify support in that way. I believe we would be in a similar position to you. That has been part of the challenge throughout all of this; there has been no quantification of what we have been talking about in magnitude. We draw broad, general conclusions in all of the various reports on this issue without looking on the ground to get an idea of the magnitude of this problem.
This issue does not affect just First Nations women; it affects First Nations men as well. Many First Nations men have had to leave their communities due to housing shortages and an inability to address matrimonial real property issues on-reserve. It is about strengthening First Nations families. Regardless of which parent must leave the community, or whether children must leave their community and be removed from opportunities to learn their culture and language, we need to resolve it.
I do not want to jump on the head of a pin to argue about whether this is or is not a gender-based issue. This issue affects men; there are a huge number of men that have as much interest in resolving this as First Nations women.
Senator Nancy Ruth: These are questions for NWAC. At the beginning of your speech, you talked about the international standards that were to be used as a test that you wanted, whatever was to come. Tell me about those.
Second, the AFN has asked for non-legislative solutions. If this was done with no capacity building, could you accept it in the interim? If not, why not?
Ms. Eberts: I will deal with the international issues first. Some time ago, there was a decision from the UN Human Rights Committee involving one of your members, Senator Lovelace Nicholas, invoking the UN International Covenant on Civil and Political Rights, which said it was improper to deny a person in her circumstances — she had lost her status because of marrying out and wished to come back — the right to come back to the reserve because she had, under that convention, a right to associate with her community. That was the basis upon which that decision was made; and that remains an important and viable right that is asserted even today.
Another convention that is relevant here is the Convention for the Elimination of All Forms of Discrimination against Women, and also the Convention on the Rights of the Child. There is a host of conventions that will apply. The virtue of measuring the legislation and whatever First Nations do against the international standards is that First Nations, as self-governing or sovereign entities, would have to respond to international conventions, whether or not they would respond to the Charter. NWAC also says that the Charter would apply to their activities. The rights of the child, the rights to community and culture, and the rights of women to equality are three very important guarantees of international law.
As far as the non-legislative measures are concerned, we believe that an interim legislative solution is an important underpinning for non-legislative measures. For example, one of the non-legislative measures that the AFN put forward in its document is the right of a couple to have a separation agreement or a marital contract. Unless there is a legal underpinning for that contract, it means nothing.
In provincial family law, there is a special framework for that, and it provides its enforceability within that legal context. Therefore, we consider that even some of the non-legislative options that the AFN has put forward would be better served with some sort of minimal interim legislative underpinning.
There are some non-legislative options that are purely non-legislative. The Native Women's Association of Canada has developed an array of these; short, medium and long term. They include, for example, capacity building for women to access their rights, capacity building for women to take part in the development of codes and a very important measure of access to justice. There is no civil legal aid in most places that would reach the situation of an Aboriginal woman. In any event, on many remote reserves, there are not enough lawyers. There might be one lawyer in a nearby town, and that lawyer may represent the husband or may not do family law. These are crucial issues.
It is also important that there be adequate services for women and children who have been the targets of intrafamilial violence. During the consultations, women repeatedly drew to our attention the peril they face in many of these situations. With no shelters, inadequate police response and other complicating factors, women seriously need protections against violence in order to make these rights work.
Senator Jaffer: I will follow up on what the chair was saying about timelines. We are in a difficult position. Our original report came out in November 2003. We are trying to stress upon the minister that he needs to act fast. I greatly respect your assertion that there needs to be a process in place. However, we must do more than just go after the minister. We need to move on this issue, which has touched this committee for a long time.
I am puzzled about something, and perhaps you can clarify it for me. You have talked about reconciliation and about alternative dispute resolutions, ADR. I know what ADR is, but why do you use the two separate terms?
Ms. Hanuse: Thank you for that question. Reconciliation is very much legal terminology, and therefore has a very specific definition. In our document, there is a reference to how the Supreme Court of Canada describes it. It is an entirely different legal process. It is more of a legal-constitutional process involving First Nations and the Crown, whereas alternative dispute resolution is a process that involves individuals in a community who come together and seek assistance from a mediator or other person to help them in resolving a dispute. It is very much personal versus the larger political-legal-constitutional process.
Senator Jaffer: I understood that. My challenge is that I understand that reconciliation is more a community issue of collective right to resolve. Am I right?
Ms. Hanuse: No. It is a process between the federal Crown and First Nations. It is very legalistic, involving prior existence of First Nations with Crown sovereignty, et cetera.
Senator Jaffer: Am I correct that you said that the minister had provided resources and that there is consultation proceeding?
Ms. Hanuse: The minister made resources available to the AFN and NWAC. With those resources, we were able to do our own research, which we had not previously had the opportunity to do on a scale of this level, and then to bring those options to our community members. It is very costly to gather people in all the regions of this country to seek the input of First Nations. That was a first-ever opportunity, and it greatly informed the debate. Up until that time, First Nations had not actively been engaged.
Yes, this issue has taken a number of years to resolve. There have been various efforts by First Nations throughout the period to address this in their own communities. One First Nation developed their own bylaw a number of years ago and submitted it to the minister, but it is clearly outside of section 81 of the Indian Act's bylaw-making powers.
There are other examples of First Nations dealing with this in their communities. While we were talking with people, they told us about how they currently deal with this in their own communities through elders and councils, and how many families become involved in assisting couples on-reserve. There are ways that this is being dealt with by First Nations and First Nations communities. We have not been sitting on our hands over the past 20 years. This is an important issue.
While it necessary to deal with the immediate needs of First Nations people, I do not believe we are being heard. There are collective rights and individual rights, and neither of those rights is any greater than the other. They need to be given equal consideration. The drafters of the Constitution went one step further. They said there should be no abrogation or derogation of collective rights and in enforcing the rights guaranteed in section 15 of the Constitution.
We are not asking for special treatment. We are asking for compliance with the rule of law and the Constitution of Canada, which says that both of these are equally important and require equal consideration.
Senator Dyck: You were talking about individual versus collective rights. One of my concerns is individual women who may have felt they were not treated fairly with regard to the division of property upon the breakdown of a marriage and may be dealing with band councils or band chiefs that do not have the women's best interests at heart.
Do you feel that, during the consultation process, individual women, who may have been adversely affected, have had their voices heard in a way such that the solutions proposed have taken their concerns into account rather than the more global legal and political concerns? Have their voices been incorporated into the mechanism proposed as a solution? Do you feel these women have been able to speak without fear of repercussions at the local level? Or will decisions made continue to adversely impact them? It takes guts to come forward. In the NWAC presentation, you said they took a personal risk to tell their stories.
Ms. Lewis: In the process implemented by the Native Women's Association of Canada, we used a community-based approach where we went to communities and talked to individual women. We asked community organizations to help us identify women who were directly impacted by matrimonial property. We heard many stories about women who were scheduled to go and did not appear for a variety of reasons. Some had experienced abuse. Others had been pressured a great deal not to participate. A number of them expressed concerns and fears about participating. As a result of that, we used multiple ways that women could participate. We had the open consultations or the invited consultations, and we also had Internet access and telephone interviews. We used a variety of ways to allow women to participate and take into consideration their very real safety concerns.
In fact, the Native Women's Association of Canada itself became a target during this time as well. We have had to have police investigate threatening emails to our president. In December, we had someone shoot out one of the windows on the president's side. The police investigated that situation as well. There were safety concerns not only for the women experiencing this but also for our organization and staff members.
Ms. Hanuse: First Nations are mindful of the need for checks and balances. In that regard, First Nations are proposing that the rules developed be community-based rules, not leadership-based rules where band councils come in and dictate to their members what kind of rules will be put in place to address matrimonial real property issues. It needs to be community-based, where everyone in the community will have an opportunity to come forward and input their views.
There will always be extreme examples of oppression in any given society at any given moment in time. I do not believe that justifies demonizing all First Nations men as evil men who are trying to prevent women from having their voices heard, or painting everyone with that broad brush. There are responsible people out there interested in finding solutions, and there are extreme individuals against whom will we always require checks and balances. We ask you to keep that in mind when we are looking for solutions.
Senator Dyck: It is a problem for the individual man or woman; therefore, it goes back to the issue of time. These people are suffering now and have been suffering for some time. Of course they would want a solution sooner rather than later. Do you believe there is any way to find solutions more quickly? Is there anything in the political process that can move that forward rather than delay it?
Ms. Eberts: In many ways, the dichotomy between individual rights and welfare, on the one hand, and community rights and welfare, on the other hand, may be a construct we should look at carefully. When a community loses its women or its children because they do not have housing following a separation, that community is weakened. It is in the interests of the whole community that the women be able to stay there and raise their children there and contribute to the keeping of the culture and the continuation of the culture. These women have much to contribute to decision making at the local level. When they are lost, the whole community is worse off.
The women who came to the NWAC consultations were very strongly in favour of community rights, but they want community rights for the communities that they still inhabit; that is critical. One issue that underlay the whole problem with Bill C-31 was the legislative desire to let the communities develop the membership codes. The communities who developed the membership codes were the communities from which large numbers of women had already been exiled. When we look at the community's interests, we have to define ``community'' broadly enough to include the women who want to be there and want to contribute.
The case law is just beginning to emerge under section 35 of the Constitution Act where courts are starting to say that the rights of the Aboriginal nations under section 35(1) of the Constitution, if they have not already developed so as to include women, should develop so as to include women because of section 35(4) of the Constitution. The same dynamic is present with respect to sections 25 and 28 of the Constitution.
The rights are not static. The rights are allowed to evolve. Allowing those rights in those communities to evolve to include the women who would otherwise be driven out is very important from NWAC's point of view. Women want the welfare of the community, but they want it from a position of being in it rather than being excluded from it.
Ms. Hanuse: It all depends on our ultimate goal. A large part of MRP is about — and family law deals with MRP — helping couples, upon marital breakdown, divide up the contributions of each spouse to their marriage. If that is the purpose we are seeking, that is an entirely different purpose than if we are concerned about women and men who may have been forced out of their community by legislative uncertainty around matrimonial real property. If our goal is to deal with shelter needs of First Nations women and children, that determines the kind of solutions that would make sense in order to address that immediate need. If shelter is the immediate need, then a spousal compensation loan fund is an immediate solution that can address that need because women can then secure alternative accommodation. It depends on our ultimate goal and what we are striving to achieve here.
Ms. Lewis: I am not legally trained, so it has been a real challenge for me as an individual to understand the ins and outs of all of this. I come from a shelter background, dealing with the women off-reserve who have had to flee many First Nations communities as a result of the lack of protections. I did not get it, for a long time. Do other Canadians not have collective rights? Do they not have individual rights? What is the big deal here? Many of our legally trained individuals said, of course that is what is happening. I asked them why then is it so hard for this to occur on First Nations communities. I was told very clearly that Canada does not have expertise in the reconciliation of collective and individual rights, that that happens on a regular basis at the international level, where member states of the UN come together to talk about their collective rights and how they promote the individual rights of their members. There are many examples of how we can reconcile both. I am hoping we can look at some of these learning lessons in other countries where women continue to struggle and that we can look at sound examples of getting our legal beagles together in discussing these collective and individual rights.
Senator Nancy Ruth: The AFN had female chiefs come forward and presented a report. Was that an attempt on the AFN's part to be concerned about violence against women?
Ms. Hanuse: Of course we are concerned about violence against women.
Senator Nancy Ruth: I was talking about that particular act: bringing the female chiefs forward to comment.
Ms. Hanuse: The First Nations female chiefs wanted to come forward and have their voices heard. They felt this issue was inappropriately being characterized as just a women's issue only and wanted to ensure that the collective rights were part of the debate as well.
Page 9 of the report shows that there are only statistics available on divorced and separated people, not on common- law spouses. For those who are living off-reserve, statistics are available from Statistics Canada for 1996 and 2001. That is a large part of what has been missing from the equation; what is the magnitude of the problem with which we are dealing?
The 2001 statistics show that approximately 9.3 per cent of all of the citizens living off-reserve was made up of First Nations women who were separated or divorced — which is one way of quantifying the magnitude of this problem — and 4.8 per cent of those living off-reserve, who were separated or divorced, were men.
Of all First Nations citizens living off-reserve, the accumulative total of people who were separated or divorced was 14.1 per cent. This suggests that if they have to leave their home because they cannot get accommodation there, then there was 14.1 per cent of people in 2001 that were there potentially because of an MRP issue.
Senator Fraser: We do not know what proportion had to leave the reserve.
Ms. Hanuse: No, but the maximum potential was 14.1 per cent of people. The remaining 85 per cent of people, who are living off-reserve, are presumably there not because of an MRP issue but for some other issue — chronic housing shortages, employment, education, for example.
Ms. Lewis: It is important to note, as well, that many women in our discussions, simply said, ``Can I not have the same rights as every other Canadian woman? What is wrong with that?''
The Chairman: I want to thank all of the presenters. This time we have had a more focused discussion, which is extremely helpful in our continuing concern about the matrimonial real property on-reserve. The issue was identified for us by Aboriginal women who have been struggling with it. Following a generic discussion, the minister moved to a consultation with the community, which has responded by and large positively with suggestions of how to go forward.
In turn, to all the participants, you have heard from the senators here that there is some impatience to get on with it. That is not directed at any one organization or group; it is to remind all of you that this is an issue that should be a top priority for all of us. With that, thank you for coming and making your presentations.
Our next witness is Ms. Wendy Grant-John, the ministerial representative appointed by Minister Prentice. She is here to discuss her report entitled Report of the Ministerial Representative Matrimonial Real Property Issues on Reserves.
I have not read the entire report, but it is very weighty. The emphasis was correctly put on the plight of the people we are trying to address and the communities that must resolve it, along with the minister. We thank you for the work you have done. We received feedback that you dealt with this issue earnestly and kept to the time frames in an incredible way, knowing how these things work, reaching out to as many communities as you did in an inclusive way. I want to commend you for the report and ask you to comment on it and the way forward, if I may call it so.
Welcome, Ms. Wendy Grant-John. Perhaps you could introduce Ms. Cornet.
Wendy Grant-John, Former Ministerial Representative to the Minister of Indian Affairs and Northern Development, as an individual: I have Wendy Cornet with me. She originally worked under contract with the Department of Indian Affairs and Northern Development in the women's issues as they developed the initial request to have the consultation process. She came with a great deal of experience, so I was very fortunate to have her — I stole her away. I read a report she had made while I was travelling across the country to meet the minister, and was impressed with the thoroughness and the way she presented. I asked to have her on my team, and they kindly agreed. She traveled with me to as many places as she could across the country. We worked together diligently for the last four weeks when there was no consensus to do the draft final report.
I appreciate your comments with respect to the report and what you have heard, but I could not have done it without the team that INAC supplied to me in order to carry out my mandate. I do thank Ms. Cornet and the team that was with me.
I am pleased to speak about my report on the subject of matrimonial real property on-reserve. My report was submitted to the Minister of Indian Affairs and Northern Development in March of this year. I also appreciate the persistent interest of this committee and respect your commitment to finding an appropriate solution.
Before discussing the substance of my report, I will say a few words about the process leading to it.
In June of last year, I was appointed ministerial representative by Minister Prentice to assist and facilitate discussions between Indian Affairs and Northern Development Canada, the Assembly of First Nations and the Native Women's Association of Canada, on the subject of matrimonial real property on-reserve. Each of the organizations named designed their own process for discussion and dialogue. Some of these organizations described their discussion process as consultation, and one, the Assembly of First Nations, did not — for reasons I have stated in my report, and they have stated in theirs as well.
Following the conclusion of six months of discussion and consultation from September 2006 to February 2007, a process then began between the three parties, facilitated by myself, to seek consensus on a viable legislative option as well as non-legislative options. Discussions were productive and constructive, but there was no consensus on a legislative option by the time of the scheduled conclusion of the process.
My mandate required, in the absence of consensus by the predetermined date for the conclusion of consensus- seeking discussions, that I recommend to the minister a viable legislative option — as well as other relevant recommendations, such as necessary program supports and implementation requirements.
My recommendations to the minister on a legislative framework may be summarized as follows: There should be no incorporation of provincial or territorial laws through federal legislation. The diversity and uniqueness of real property interests on-reserve relative to property interests in off-reserve jurisdictions do not make this a practical option. Further, not only did First Nations and First Nations organizations universally oppose the option but also two independent legal opinions I commissioned concluded that this option was not a suitable way to accommodate the unique legal and social situations on-reserve. As well, there were a number of provinces that had been consulted that said that they felt it was not practical, and they were not able to apply it at this point in time.
First Nations inherent jurisdiction over matrimonial real property should be immediately recognized in federal legislation; and recognition of this jurisdiction should include jurisdiction to establish dispute resolution mechanisms.
Until each First Nation has its own matrimonial real property law in place, federal legislation is needed to provide interim protection, such as orders for exclusive possession and compensation orders.
Federal legislative activity should be kept to the minimum required to meet immediate human rights concerns. This means policy decisions with respect to remedies, such as partition and sale, should be left to be determined by First Nations.
Under federal legislation, there should be flexibility for courts, upon receiving input from First Nations on their traditions, law, practices and policies, to craft other remedies suitable to the First Nations concerned. Likewise, any changes to the operation of section 89 of the Indian Act with respect to the enforcement of court orders by a non-band member, non-Indian spouse should be left to the determination of the First Nations governments.
There is a need for a broader policy agenda to ensure implementation of First Nations' inherent self-government rights because of many of the important policy linkages, such as wills and estates, land regime and access to justice issues.
There is a need for a legislative framework to promote the harmonization and reconciliation of section 35 of the Constitution self-government powers of First Nations with those of federal and provincial governments — such as the federal law-indigenous law harmonization act that is suggested by John Borrows in my report.
Federal and First Nations legislation should address the needs and rights of couples living in homes located on various types of reserve lands, including custom allotments, and should address common-law relationships as well as married couples and couples married by First Nation custom.
Orders for compensation based on the value of the structure of the home alone, separate from the reserve land itself, should be an option for the First Nations who did not subscribe to the Indian Act certificate of possession system.
I will share a few thoughts about the perception of the matrimonial real property issue in First Nations communities. My view is informed by the consultation process as a whole and many conversations with First Nations leaders and community members across the country. First, there is a real commitment in First Nations communities and among First Nations leaders to do something about matrimonial real property issues and to meet the particular needs of women and children. The fact that First Nations may see the path to achieving that in a different way from the federal government at times does not mean there is opposition to the final goal of protection of spousal rights to matrimonial real property. First Nations leaders not only want to address matrimonial real property, they want to do it properly.
I suggest in my report that, as the federal initiative to develop legislation gets more detailed, more potential points of conflict would arise. It is my view and recommendation that the government and parliamentarians must continue to listen and accommodate First Nations views and perspectives as the legislation process unfolds. There is a real need for the government to listen to First Nations, not just on the broad policy strokes, but also on the details of any proposed legislative initiative, rather than simply going ahead and doing what they believe is best, whether or not First Nations think what is proposed is best for them. In addition, decisions of the Supreme Court of Canada have outlined what needs to be done to achieve the reconciliation promised by section 35 of the Constitution.
In my view, the management of consultation issues and the Crown's constitutional obligations urgently require a federal policy on the subject. The practical implications of the Crown's consultation obligations in developing legislation was addressed by the Supreme Court of Canada in the Adams case that has been quoted many times since:
In light of the Crown's unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing Aboriginal rights in a substantial number of applications in the absence of some explicit guidance. If a statute confers an administrative discretion which may carry significant consequences for the exercise of an Aboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion which seek to accommodate the existence of Aboriginal rights. In the absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directives to fulfil their fiduciary duties, and the statute will be found to represent an infringement of aboriginal rights under the Sparrow test.
I also wish to mention the need for the federal government to treat section 35 of the Constitution compliance with the same degree of seriousness and commitment as compliance with the Canadian Charter of Rights and Freedoms in the development of legislation — and I would like to underscore that.
The government must give the same due to section 35 of the Constitution as it does when it develops legislation such as the Charter of Rights and Freedoms, and they take every piece through the justice system.
This could mean the establishment of a formal process to ensure that prior to a bill being introduced to Parliament that the Department of Justice Canada certifies that an analysis has been carried out to ensure members of Parliament and Canadians that it respects the requirements of section 35 of the Constitution Act, 1982.
I do not understand why it has not been done before. I do not understand why it is something that is lesser than other sections of the Constitution that must go through that process. It baffles me.
My report demonstrates again how complex this issue is, and explains why this is so. First, matrimonial real property on-reserve is situated in a legal and social situation that does not have a parallel off-reserve. In this regard, it should be noted that the experts on this social and legal context are in the First Nations community and not the Indian Affairs and Northern Development Canada or the Department of Justice Canada. Second, matrimonial real property is linked to many other subjects that off-reserve, provincial and territorial governments have jurisdiction over, and which on-reserve, First Nations still seek recognition of their authority.
There is a need for a policy agenda to address the broader powers included in the inherent right of self-government in order to ensure a comprehensive legal regime for matrimonial real property rights equivalent in scope of protection and in coherency to off-reserve regimes.
As I travelled across this country, going to as many of the sessions as I could and trying to have sessions with individuals with different backgrounds, politics or parts of organizations or structures, without exception, whether it was NWAC, AFN or any of the other meetings, people said, ``We need to return to an area of government that reflects our traditional forms of government.'' In those traditional forms of government, women held an equal place. We need to understand that the marginalization of women and, in turn, their children, comes about not because our governments wanted that to happen, but, in fact, because of the Indian Act. In the research — which you will see in my report — right from the beginning in 1872, chiefs were making presentations to legislators at that time to ensure that their women not be marginalized and that the women could stay in the community if they so chose.
In 1946 and 1947, when they changed the Indian Act, presentations were made again by male leaders of organizations saying, ``Do not marginalize our women; we need them to be here.''
We look at Bill C-31 and what has happened there, and people have talked about that. I was chief in my community when Bill C-31 was implemented. There are a number of issues, not the least of which is the resourcing. That is an important part of it. There is a bigger part that we seem to gloss over, and it is the implementation of the membership codes by the Indian Act, based on the department's interpretation of the Corbiere case and Bill C-3. The women are still not getting protection for their children and grandchildren the way the men are, not because the communities want it. I know in my community, we have time and again submitted our lists based on what we say they are, and the department says that under what it is interpreting, they are not entitled to be registered.
I bring it up as an example, because if we go through this process of legislation being introduced without any future involvement again — I support what the group said ahead of me — there needs to be the involvement of the organizations who understand the issues to be a part of that legislative drafting, or we will be in the same place that we were with Bill C-31. We will still not be protecting the interests of the women, children or men. I have a son that left a relationship with nothing but the clothes on his back. We are still not protecting the underlying fundamental issue, which is to ensure that what the communities are asking for gets interpreted in that legislation.
That is why we have mistrust and people saying they do not know if they want to be part of the consultation. The mistrust has been there since 1872 on this issue alone.
When we look at a success story, we look at the First Nations Land Management Act, FNLMA. The FNLMA had the chiefs and the communities involved from the beginning. Now we have communities lining up to become involved in the FNLMA. Do you know what the FNLMA requires? It requires, before putting MRP legislation in place, that there are consultations with their communities.
If the government requires the FNLMA bands to have consultation with their communities on what their MRP code will look like, why would it not naturally be that the government supply the communities, resources and capacity building to do that under this legislation? They require it on one, but they do not require it on another. It does not make sense to me. We do not know what is happening because none of us has been at the table since the report was submitted.
I wanted to make those points because there is a real opportunity for this to be a success, but with respect to the constraint of the timelines — I acknowledge the 30 years and all of the comments that remain — I hear the group here saying that if we are to complete this in its wholesome manner and ensure that the situation with Bill C-31 does not happen again, you need to involve and engage this group in the drafting of the legislation.
When we first started this, there was a comment to the effect that they would be involved. There were two sessions held at INAC with the representative of the organization saying, ``Yes, you will be involved in the drafting of the legislation right up to the door when they go into cabinet.'' That has not happened. If that does not happen, we will have strong opposition, and rightfully so, because of the history I just outlined here.
I look forward to all of your questions.
The Chairman: Thank you for putting your report into context.
Senator Fraser: I, too, am dazzled at the thought that you could produce this report in such short order and on deadline.
If the government today said that you are right and that they will start the consultation tomorrow morning, how long will it take?
Ms. Grant-John: Maybe you misunderstood what I was saying, which was that you need to involve the communities in the legislation itself. What happened with the FNLMA is they developed their legislation, and the community had an opportunity to go through it. The legislation can come forward, and I believe they give them two years with the FNLMA to pass it.
Senator Fraser: I do understand that.
Ms. Grant-John: I am saying if it worked there, and if there is a concern that the legislation does not get put forward right away, put the legislation forward and give them the same as is required under the FNLMA.
Senator Fraser: I am being a bit of a devil's advocate here. I know some bands and First Nations have done well, but comparatively few. Given it has not been possible to achieve a broad consensus on this matter and that any legislation is not legislation for one First Nation, it is national legislation, even if it builds in all kinds of options — and although I would not say ``escape hatches,'' you know what I am saying — realistically, can we expect to achieve consensus on a draft bill any time soon? How long will it take?
Ms. Grant-John: I made one suggestion in my report, and I know it is a long report.
Senator Fraser: I did try to read it.
Ms. Grant-John: My part of it is 86 pages. The rest of it is attachments from organizations. I made the suggestion that the INAC has a structure right now, and they can connect First Nations communities quickly. Therefore, if they did it that way, it is something that could be done — if somebody gets pushed — in less than a year. There is that option. When I am talking about the FNLMA, I was talking about the individual community.
Senator Fraser: I understand that process. Obviously, everybody would like to get from here to there. The question is how to do that without it being another three generations.
Ms. Grant-John: The criticism of the organizations is something that really should be taken into account when we look at timing, because the ability for us to sit down and have consensus was a short period of time. People were saying we will get into the drafting of the legislation.
I do not want to speak on behalf of the organizations; however, there would be good faith shown at least if the organizations were able to be a part of the drafting. It would alleviate the pressures they are feeling about not understanding what will happen. It might then calm the waters and if the capacity-building money was there for them to build, then this issue of interim federal measures would not be such a pressure for everyone. Therefore, the interim federal measures could go ahead if there was a commitment — and I am not speaking on their behalf at all — at least then the mistrust and the pressure could be relieved, in my opinion. I believe that is what Ms. Eberts was talking about, that you need to get that happening. The capacity for the communities to do their codes would send a strong message, so that it is not something that will get left there for another 30 years with the interim federal measures being the law.
The Chairman: The more I hear the more confused I am getting.
Are you advocating that the leadership of the various organizations come together with department officials to craft the legislation? That is one consultation. That is consultation with organizations. Then would you put in the federal interim measures by way of law, which would then be a framework type of legislation that would allow the communities to sign on; is that what we are talking about?
Ms. Grant-John: I am sorry if I am confusing you. I am saying live up to the commitment of having the organizations work with INAC and Justice Canada right now in drafting the legislation. They have not been able to do that. They have been given three and a half days, which is nothing. I know they are drafting 12 hours a day. Allow that to take place.
Two things could happen at that point. One is that the legislation takes a few months to go through a process in Parliament. That legislation could be taken to, as I say in my report, the different regional offices where they could share information with the communities out there. There will be amendments coming through anyway. I made that suggestion in the report.
The other thing is having the capacity building money identified right away so people know they will get the resources to develop their own code. I recommend they acknowledge the inherent jurisdiction before anything else. If that is done, the resources naturally go with it.
Thus, acknowledge the inherent jurisdiction; acknowledge the resources that are going with it to help develop their codes; give respect to this group that has been waiting to sit down and be a part of crafting that legislation; take that legislation and, while it is being discussed here, give the same respect to the communities by having it out in the regions through INAC; make the contact in that way and that information could be fed back.
The Chairman: I believe I understand the process. I wanted you to state the steps to go through for our benefit.
To get to Parliament and to get to the communities, if there is no consensus on the drafting amongst the organizations and INAC, what happens in your scenario?
Ms. Grant-John: I believe we need to have something in place in the interim while the First Nations develop their own codes. In the end, they would have to make a decision to move forward if there was no consensus again.
The Chairman: I want to be clear. Are you suggesting that if the group came together for the drafting and they could not come to a consensus on that model, the government should proceed anyway if they do that in what you think is a reasonable amount of time?
Ms. Grant-John: Yes.
Senator Fraser: Can you provide us with a brief description of what you think should be in the federal interim legislation? I confess, I did look at your report on this, but I found myself confused. This is a function of my ignorance; however, if you could help, that would be nice.
Ms. Grant-John: I will get the chart, so you can go to the chart as well. It appears on page 67.
The Chairman: The chart you are referring to is on page 67, entitled Matrimonial Real Property on Reserves Concurrent Jurisdiction Model (Federal and First Nation).
Ms. Grant-John: As Ms. Lewis also said to you earlier, I am not a lawyer. I have a basic understanding of this, but Ms. Cornet will give you the legal and fundamental underpinnings of these.
Wendy Cornet, as an individual: On page 67 of Ms. Grant-John's report is a chart summarizing the basic elements of her recommendation. It has two parts. One part provides these interim federal rules until and unless First Nations jurisdiction was recognized and the first part of the legislation would explicitly recognize First Nations jurisdiction over matrimonial real property. In that sense, it is concurrent. Obviously, there is federal jurisdiction over the matter and the legislation would make explicit there is also First Nations jurisdiction.
Senator Fraser: Do you think all of these items should be actually in interim legislation?
Ms. Grant-John: Yes.
Senator Fraser: Let me get practical here. With respect to marriage contracts, will you spell out what should be in marriage contracts or simply say they should exist? I am from Quebec; I like marriage contracts, but they are a complex field. Volumes of legislation can be done just on that.
Ms. Cornet: The body of the report makes it clear that it would operate in the same way that provincial laws now operate. They provide for their legal enforcement.
Senator Fraser: Would it simply say, if a marriage contract exists, that is it would not impose them?
Ms. Cornet: Yes.
Senator Fraser: These are questions people in Quebec take very seriously.
Ms. Cornet: There is nothing preventing couples now from entering domestic contracts on-reserve, as Ms. Hanuse pointed out. However, the statute is missing, whether it is First Nations or federal, to provide for their legal enforcement.
Senator Fraser: Fundamentally then, exclusion orders would be a matter of enforcement but prohibition against the sale of the matrimonial home without consent of the spouse during the marriage would be new. Am I right? Would that be an actual new position?
Ms. Cornet: They would all be new in an on-reserve context, with the one exception of Derrickson-type compensation orders, which are available really as a combination of common law and statute law where provincial law provides. The rest would be new in one aspect or another.
Senator Fraser: I will work on wrapping my mind around it. The earlier panel talked, among other things, about a compensation fund. The AFN, in particular, talked about a compensation fund while we wait for new regimes to be established so that spouses who are the victims of marital breakdown would receive some kind of compensation.
I am assuming, although I did not ask, that this would mean that the departing spouse received half the value of the matrimonial home if the other spouse owned the home.
Have you done any work on this? In particular, have you any idea what kind of money might be involved? What would this actually give to spouses? What, in the aggregate, might it cost the federal government over the course of a year?
Ms. Grant-John: There is a community that does that now — whose name escapes me — which we have used as an example. They have a loan fund that they supply to community members when the marriage breaks down.
I spoke with that community. In fact, their loan fund is at its limit right now. If that were taken into consideration, the government would have to sit down with communities that have already used a compensation fund and figure it out. The problem with the fund right now is that people cannot put enough back into the fund to keep it operating. A major resource allocation would have to be looked at in order for the fund to be operational.
Senator Fraser: We are talking about significant amounts of money. It is not just $15,000 here or $8,000 there; we are talking serious money.
Ms. Grant-John: There is such a wide variety and array of ownerships. When Ms. Hanuse was talking about the social housing units, which my research said represented 60 per cent of the community, there are in fact different levels of ownership in that social housing as well. In my community, people are paying rent into social housing until they get a certificate of possession and pay out the mortgage. It is a form of ownership. It is not just all social housing and it cannot be touched as far as any compensation order.
That is why it is so important for communities to be involved in the courts. One of my recommendations is to have a friend of the court as these interim federal rules are being implemented to ensure an understanding of how the community is operating, whether it is custom allotment, certificate of possession, band-owned homes or some other form. There are 15 different kinds of social housing.
Until we get to the point where communities have their own code, a friend of the court should be involved. First Nations in the Yukon are using a friend of the court while they develop their own justice systems, and it is working very well. They understand the different types of ownership and are able to make a decision in collaboration with the First Nations community, which brings us to the issue of collective right.
Housing and land allocation is set up dependent upon collective ownership under the Indian Act. If you have that friend of the court go in, that person can represent the community, and you still have the individual asserting his or her rights as an individual. I agree there must be a balance between the two.
I have lived in a collective society all my life, and all the teachings I have had say that the individual never overrides the collective but in fact protects it, and the collective never does anything to harm the individual right. That is how we grew up. That is our understanding of individual and collective rights.
That representation needs to be brought back into the governing bodies. We need the time to do that. I know you do not want to hear about a time line, but there should be a review within three years of where this is at. If it is reviewed, and if checks and balances are put in, I think it can work.
Senator Jaffer: I am having difficulty with the interim compensation concept. I assume the money comes from the federal government for now. Is that right?
Ms. Grant-John: Not right now, no.
Ms. Cornet: No. It could come from the individuals. There will be situations where there will be an opportunity to sell a home in order to realize a compensation order. The recommendation has been made that, due to various difficulties, such as getting loans from banks and the different ways of owning and occupying houses on-reserve, to ensure compensation orders are realized, it might be pragmatic to have something such as a compensation loan fund. That fund would be a supplementary way of helping to ensure enforcement, but it would not necessarily be the only means of achieving a compensation order.
Senator Jaffer: Would this loan be until this matter has been resolved?
Ms. Cornet: No. Once the interim federal rules are enacted, the loans would be in place until they were displaced by a First Nations law. While that federal law is in operation, spouses would be able to make an application for a compensation order, get the court order and then seek to enforce it, in the same way people do off-reserve.
Ms. Grant-John's recommendations spoke to the issue of dispute resolution. Although we say that on-reserve couples could seek to enforce the compensation order in the same way as off-reserve couples do, as other witnesses have pointed out, First Nations people do not always have the same degree of geographic access to courts. Therefore, Ms. Grant-John has made this recommendation about dispute resolution mechanisms that are local.
A compensation order, generally speaking, would operate in the same way on-reserve as it does off-reserve. It would be a court order that an individual citizen would be expected to respect.
Senator Jaffer: I am having difficulty. I am probably treading where I should not, but I will push a bit.
The challenge and the reason we are all here is because the homes are not under individual names. Is that right?
Ms. Cornet: I do not agree with the statistics that were put out by the Assembly of First Nations. Ms. Hanuse suggested 70 per cent social housing. In my community, however, we find that those people are actually paying for their houses. They are not social housing units in the sense that the government pays for them. They have some type of agreement with the community.
In addition, there are communities where social housing is completely subsidized by the band, so there is no claim or any kind of ownership. There are so many different examples as to have one's mind spinning. Then we get into land ownership and our heads spin more, which is why we come back to the idea that the best solution comes from the community, because they know how they have put their government, land and housing in place.
If the interim legislation goes through, there must be a review after three years to see where it is at. Otherwise, it will be more of a problem in the communities than it is now.
Senator Jaffer: You are known as a wise person in our province. You certainly are, and you certainly have my mind spinning. The chart lists prohibition against the sale of the matrimonial home, interim federal rules and then you have a column heading in regard to First Nations jurisdiction as still paramount. Can you interpret that for me?
Ms. Grant-John: I said at the beginning that First Nations jurisdiction must be acknowledged as paramount. That should be the focus of anything that gets put forward. The interim federal rules are concurrent with the First Nations jurisdiction until the First Nations jurisdiction has it codified. Do I have that right?
Ms. Cornet: It is a model similar to those you see in many self-government agreements, where First Nations jurisdiction is recognized in many areas, but it may not be exercised yet.
In certain areas such as family law, it is often a common provision of self-government agreements that a provincial law, for example, will continue to apply to that First Nations community until a newly recognized inherent power is actually exercised and displaces that provincial law.
In terms of the chart, if you think of three general fact situations, the first remedy there, prohibition against the sale of the matrimonial home, is a protection that affects people while they are married, regardless of whether they are in the process of separation or contemplating separation. Despite the diversity and the uniqueness of the way that land and houses are held on-reserve, the structure of a house, or the house and perhaps the right to occupy the land underneath it, are sold. Money changes hands. Often, the underlying equity issue here is who gets to share in that financial benefit. Where and if a matrimonial home does have a financial value to it, and only if a financial value is being attached to it in a community, then does one individual get to walk away with that benefit or does it get shared? That is a basic question.
It is not easy to do on an interim basis, given the diversity and the complexity, but this recommendation Ms. Grant- John has proposed is a start.
The Chairman: When a marriage breaks down, it is emotional; it can be violent and traumatic, and it is always uncertain. All the practical questions are asked when they are in the lawyer's office: What happens now? Will I be destitute? Can I stay in my home? Will I have a roof over my head? What will happen to my children? Can they continue going to school?
Are you putting in interim federal rules because in the broader society the rules were not clear or there was not a reconciliation of them? If we put in interim federal rules, then those people most vulnerable would at least have a guide as to what will happen to them. However, the discretion will still stay with the First Nations. If those rules do not fit their customs, their community, their practices and wishes, they then go to the First Nations jurisdiction to put in what they want. From that point on, anyone who lives on that reserve will know those are the rules because they will have contributed to them or they would have been known. It is to get certainty at the most vulnerable point in time when a family is in crisis and a marriage or relationship is breaking down.
Ms. Grant-John: You are absolutely right. It is a key point that, in doing that, the paramountcy of the First Nations governance is the aspect that should be hooked at all times. I underscore that again because I do not want walk away from this and in 10 years have people come to me and say, ``You know issue you worked on? It is worse than Bill C-31 because the government did not give us capacity dollars. We are not able to invest in the MRP. Everything that you said was to be interim is forever engrained in our community now and it is your fault.'' That is what will happen.
The Chairman: I appreciate the condition that you put on it. However, I am trying to understand the interim federal rules, which is what Senator Jaffer addressed. They are modeled on what you knew to the best of your ability, talking to all the communities. There might be some consensus federal rules based on all the past practices, but they would allow the individual jurisdictions to customize them and make those rules their own. That would be the next step, the First Nations jurisdiction.
Ms. Grant-John: Yes.
The Chairman: It puts something in place that is workable. They can then say, ``We do not like that part. We want more here and less of that. This reflects our community.'' They would then move to the step of the First Nations jurisdiction.
Ms. Grant-John: I think I am lost now.
The Chairman: If we accept what you are saying, namely that the government would propose legislation, given proper consultations, they would be under the interim federal rules on page 67 to allow enough time for the individual First Nations to develop their First Nations jurisdiction rules, correct?
Ms. Grant-John: Right.
The Chairman: Even the interim federal rules would have already taken into account, one would hope, the distinctness of a First Nation.
Ms. Grant-John: The interim federal rules?
The Chairman: Yes.
Ms. Grant-John: I do not know. All I have right now is this.
The Chairman: I know. However, what was your intention with the interim federal rules?
Ms. Grant-John: My intention was to have the acknowledgment of the concurrent jurisdiction so that the individual communities could develop it without any kind of restriction other than the ones we have talked about. Once we recognize section 35 of the Constitution is gender neutral, then all the others must fall in place if we are doing self- government. To me, the First Nations jurisdiction over this is part of self-government.
I do not connect them the same way you do. I understand this must be in place right now, and it is a reflection of the government systems we have today.
This is just me talking right now. If I go over to the First Nations law, it would in no way — in some communities — be connected to this model. They may have an entirely different way of putting together their MRP that does not have this wording here but would give the same protections based on their traditional government systems.
The Chairman: I believe we are on the same wavelength here. I assume the First Nations are not ready to put in their rules, because they have not put them in place; they have not had their consultations or defined their rules. Are you telling me all of them have? I thought they had not. If so, they would be more reliant on the interim federal structures and would move over then to the First Nations additions.
In other words, the interim federal rules are sort of the embryo, the small rules, and then they build on those? Or are you saying they are concurrent?
Ms. Grant-John: They run concurrent right now until the community takes over their own. The community does not, in my opinion, have to be tied to what it says over here. As long as there are the protections under human rights and all the rest of it, they can come up with something entirely different.
I listened to the Yukon people when they talked about setting their justice system up. They are doing a clan structure that would not talk about exclusion orders or prohibition against sale because under their clan system it is not part of how they govern themselves.
This, to me, could entirely disappear, but we would still have the protections under the jurisdiction of the First Nations and probably have them even more so. In my community traditionally, the woman held the house, and there would be no questions from anyone. We would not have to put all these rules in, because as soon as it was over, the man was gone. It was that simple. We got confused when you guys came in and started to put all this other stuff in.
We are talking about returning to our forms of government. If we are able to do that, you will see unique forms of government that are so respectful of women that you will want to join my community. I kid you not. However, we must have that ability to do it.
Once we develop the model here, it may not look anything like this, but the protections will be even stronger. I guarantee my grandchild's future on that. Did that answer your question?
The Chairman: At this late hour, I will reflect on it. My whole point is — I do not disagree with what you are saying — I just do not know what the trigger is in the legislation. Let us say tomorrow, we introduce legislation according to your model. I am sitting in a First Nations reserve and I want to know what my starting point is.
If the federal government has put in legislation, where am I at? Am I at the interim level automatically, or am I into the First Nations jurisdiction? Maybe I am the only one having this struggle.
Senator Nancy Ruth: If you do not have access to justice, it does not matter.
Ms. Cornet: Other than acknowledging there is First Nations jurisdiction and they are free to assert it at some point in the future when they wish or if they have already asserted it and law is working, the federal rules would operate as matter of federal law, spouses on-reserve would rely on the remedies there and not on the ones that are not there. Only if a given First Nation asserted jurisdiction would those federal rules fall away.
The Chairman: That is my point. We introduce legislation; the interim rules would apply unless the First Nations moved. That is the point I am trying to make.
Ms. Cornet: That is right.
Ms. Grant-John: There is the key; I figured out what you were saying. The trigger is the capacity for the communities to develop their codes, as the panel said earlier. Once they have their codes in place, then this interim model is gone. The trigger is getting the money to them so they can develop their codes. The same as is required of the FNLMA.
The Chairman: I was looking for the legal trigger by the legislation. The legal trigger is if they do not have First Nations jurisdiction in place, they start with the interim rules and move. They cannot move and develop their own code if they do not get the support systems. I fully appreciate that.
Ms. Cornet: The assumption is that legal drafters would write the appropriate transitional provisions to make clear when a given community is shifting from the application of the interim rules under federal law to their own law. We need something that would indicate clearly to everybody which regime they are operating under. The report does not get to that level of detail of legal drafting.
The Chairman: Philosophically, that is where you are at: Put in the interim rules, ensure there is the financial wherewithal to allow the community to carry on the dialogue to develop their rules and then they could trigger when they are ready to fully implement their own jurisdiction according to their own customs. That is what I was trying to get at.
Senator Nancy Ruth: Twice I have heard Minister Prentice say — this is not a quote, this is my interpretation — if you could not get it together then his ministry would. In neither case have I ever heard him say whether or not the AFN, NWAC, you and whoever else would be included or excluded, it just has not been said in my hearing. I am curious what kind of analysis you have as to why the department has not chosen to include the groups in this draft legislation.
Also, you have talked about significant monies and resources for capacity building. What does that mean?
Senator Dyck: How much money?
Ms. Grant-John: With respect to draft legislation, I do not have an answer for you. When I submitted my report, I did not hear from anybody. As a matter of fact, I phoned last week to ask what is happening. I had no clue.
I had been told at the beginning of this process that if there was no consensus, I would be given the finest drafters around. That disappeared, I did not get called. We had two meetings where it was very clear from the assistant deputy minister that he would be doing things differently, and he would involve AFN and NWAC in the drafting. They were to be a part of that until the draft legislation went to the door.
I phoned and found out that they had put such time restrictions on it that they would end up with three half days, and they felt it was inadequate and that they would be put in a terrible position.
I had pieced together a few facts. I found out they were drafting 12 hours a day. I thought there was a premise that the groups — and they were very clear about this — needed to be involved in it, and there was a commitment from INAC to do that. Then it disappeared. I have no answer for you as to why. I do not know.
With respect to significant capacity, I did not put it in the report. However, I did spend some time talking with Chief Robert Louie, who is with the FNLMA bands, about what it costs to put an MRP code in place. He said approximately $80,000. It is that high because there is a requirement under the legislation for them to have as many community consultations as possible, and that is what drives it, as much as the actual drafting.
It would be beneficial if you had someone such as Robert Louie, who has been working on this, to sit down and work with the department. There needs to be much work done, as a matter of fact, in lands and trust right now, because one of the issues is the registration of lands and their capacity, at this point, to fund those different programs.
The department is under pressure here. They have a fiduciary obligation to look after the best interests of the land. The Indian Act was put in place to ensure that the collective interests of the land were held; that is why we have INAC. It is that simple. That is how it started. When we look at the lands department right now, it does not come anywhere near that.
During our investigation we found out the number of different ways of registering land, and they do not know it themselves. They started to register custom allotments and stopped; it is a real mess. The department needs to do some significant work there.
It is probably an opportune time right now with the rejigging that needs to be done — with programs such as RLAP and 53/60 Delegated Authority and FNLMA — to consider what that would be if they were doing lands and trusts for resourcing the MRP codes. We have all of these communities already that have done them. We have a real example of what the cost would be. He averaged a cost of about $80,000 a community to do it. Keep in mind Westbank has a huge community with many developments and rich lands; they are right in Kelowna, and it is all certificate of possession land. Robert Louie's estimate is probably at the high end.
However, if we have a template of what needs to be done, the costs would come down again. We need to spend time looking at this; I could not spend enough time with Robert Louie to get down to the actual cost.
Senator Nancy Ruth: To get to the draft legislation in the three half days that may come your way, is there enough capacity within NWAC and AFN to do due diligence, given that they only have those three half days?
Ms. Grant-John: Let me qualify that by saying that I understand that the three half days are not acceptable to at least one organization.
Senator Nancy Ruth: Does that mean they will not do it.
Ms. Grant-John: I believe Ms. Hanuse said that here. I believe they will not engage; it is just three half days. That is very disrespectful.
As far as NWAC and their capacity, I do not know. I know they have the people able to do it, but whether or not they have the resources is another issue.
Senator Fraser: In my naïveté, I assumed — but I now realize I was wrong — that there was an assumption in your report that the ultimate First Nations laws on matrimonial property would necessarily have to cover, although in varying ways, the elements listed in the interim federal rules, prohibition against sale of matrimonial home, et cetera.
I assumed that however individual First Nations chose to tackle these matters, they would, at least, have to tackle them in their codes. Then I took from what you said, this is not necessarily the case; this was not necessarily part of what you were envisaging. At which point, your footnote on the subsequent passage on protection for human rights becomes significantly more important. You actually recommend that the current section 67 exemption under the Canadian Human Rights Act not apply. What support is there in the community for that?
Ms. Grant-John: I did not hear much discussion about section 67 of the Canadian Human Rights Act. Section 67 came about before the Constitution protected rights equally for men and women. That is what happened. People know that the protection for men and women equally is in section 35 of the Constitution now. I assume that is a given. I have a real respect for the women who suffered adversely because of this. I also have a real compassion for our communities who have been struggling to bring back their traditional governments in order to welcome them back in the manner that they want. This is the reason I said what I did on this issue.
I believe firmly that, once these governments are put in place, we will see all of these aspects become a part of their law without it being described particularly in that form. These aspects will still be there, but stronger and with different wording and format.
I will be very blunt and maybe even rude. You come here with the baggage of the legal and political structure in which you have grown up. You have a difficult time understanding what we are talking about when we talk about our ``governments'' and how we operate; I respect that. However, it is time for us to start moving away from it. The research, from the academic perspective, shows it can be done if we want to get rid of judging what we are doing by your vision of what we should be doing.
Senator Fraser: Let me clarify an earlier comment. If they were pressed to do it, the vast majority of First Nations would produce good codes, well-tailored to their unique circumstances.
However, we, in this room, have some obligation to consider the issues when that goes wrong. It is not unique to First Nations to say that sometimes governments go off the rails and adopt — often with community support — bad legislation. It happens. It happens in every human society I have observed. I do not believe that it would never happen in any of the 600 First Nations. That is why I made the point about the human rights protection, not because we have to condescend to First Nations.
Ms. Grant-John: Section 35(4) of the Constitution does that now. No one can get around it. The rights issue under section 35(4) is front and centre for us continually. We are a matrilineal society, although there is a difference in some of the Prairie communities. However, section 35(4) would ensure all of these rights. I do acknowledge section 67 of the Canadian Human Rights Act. I did it because I wanted people to know we had not just set it aside. That is my personal feeling on it.
The Chairman: Thank you for staying longer and contributing to this dialogue. The point is not understanding First Nations, rather, as Senator Fraser has said, we want to be sure that we transition from what is happening now legitimately to the First Nations and not create another problem. We should both be working from our respective responsibilities and sides for a better solution. Therefore, transition is important. We do not want it to be compounding the problem. It is not saying that the First Nations are not important nor the interim rules, but it is important to understand the interim rules. We know what we have now, what we do not like about it and who is disadvantaged. Fine principles have to be translated. The devil is in the detail, we often say around tables here. We want to be sure that the principles you have enunciated are understood sufficiently, the process and how they will be translated into real workable solutions.
You have been very helpful in bringing that forward not only with your report but also with your presence here today. There is a real commitment to get to solutions that are more appropriate than those we have today for First Nations, Canadians and also those disadvantaged in any society. That is the weakest link, the individual who finds him or herself in a marital situation that is not working. It is of concern to us, having just finished a huge study on the Convention on the Rights of the Child. Children and their families must be factored into society. We assure you that we are not giving up. We will continue to scrutinize all governments on this matter.
The committee adjourned.