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Critics warn First Nations Matrimonial Property Rights bill 'deeply flawed'

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  • Don Bain
    Critics warn First Nations Matrimonial Property Rights bill deeply flawed Opposition MPs say the government bill doesn t take into account the resources
    Message 1 of 1 , May 13, 2013
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      Critics warn First Nations Matrimonial Property Rights bill 'deeply flawed'
      Opposition MPs say the government bill doesn't take into account the resources necessary to support Bill S-2's implementation.
      Photograph by Daniel Rodriguez, The Hill Times
      First Nations Matrimonial Property Bill: Bill S-2 is the fourth attempt in three Parliaments since 2008 to give First Nations on reserves the same rights as other Canadians when it comes to property after a marriage or conjugal relationship breaks down or when a spouse dies.

      By BEA VONGDOUANGCHANH<http://www.hilltimes.com/author/Bea%20Vongdouangchanh> |
      Published: Monday, 05/13/2013 12:00 am EDT


      The federal government's fourth bill to address matrimonial property rights on First Nations reserves will likely pass by the end of this month, but critics say it's "deeply flawed" and doesn't take into account the resources necessary to support Bill S-2's implementation.

      "Without all the other pieces like housing and mediation, this is not an answer to violence against women. We have to do more and the government needs to have listened. They haven't listened before, and they haven't listened in this committee and they're just ramming it through with really serious repercussions if they would only talk to First Nations women," said Liberal MP and aboriginal affairs critic Carolyn Bennett (St. Paul's, Ont.), who is currently sitting on the House Status of Women Committee that is studying Bill S-2, First Nations Matrimonial Real Property Rights Bill.

      Bill S-2 is the fourth attempt in three Parliaments since 2008 to give First Nations on reserves the same rights as other Canadians when it comes to property after a marriage or conjugal relationship breaks down or when a spouse dies. It was introduced in the Senate in November 2011 and passed a month later. It came to the House of Commons on Dec. 8, 2011, and was called for debate for the first time almost a year later in November 2012 when MPs debated it at second reading twice that month. It did not get called again for debate until April 17, this year, when Government House Leader Peter Van Loan (York-Simcoe, Ont.) moved a time allocation motion on it, which passed.

      Instead of being sent to the House Aboriginal Affairs Committee, it was sent to the Status of Women Committee where Ms. Bennett said it doesn't have the expertise to study the bill. The Status of Women Committee later passed a motion that clause-by-clause review should not begin any later than May 9 and that if the committee has not completed that study by May 21 at 1 p.m., it would move to vote on all necessary questions to report the bill back to the House.

      "The amendments were supposed to be in yesterday [May 7], the Native Women's Association of Canada is not even testifying until today [May 8], and tomorrow [May 9] they're going to ram through clause-by-clause. This has been a travesty," Ms. Bennett said. "That's why I moved that it get moved back to the Aboriginal Affairs Committee. It's Minister [Bernard] Valcourt's bill, it's about legislation which the Status of Women Committee doesn't do. It's about aboriginal rights which Status of Women Committee has no experience with. This is just awful. They say they've consulted, but they have not listened."

      When he appeared before the committee to discuss the bill, Aboriginal Affairs Minister Valcourt (Madawaska-Restigouche, N.B.) said the government spent two years consulting people at more than 100 meetings. He said the bill is about equal rights and protecting aboriginal women because "the breakdown of a relationship or the death of a spouse or common-law partner can mean insecurity, financial difficulties, or homelessness."

      "Bill S-2 responds to calls for action not only from aboriginal women, but also from international organizations and Parliamentary committees," he told the committee. "The bill-which I heard in the House-is neither paternalistic nor dictating to First Nations. However, I submit that not passing it would be."

      Bill S-2 would make changes to the Indian Act that would allow First Nations to develop their own laws around matrimonial property rights, or failing that, be subjected to provincial laws that govern other Canadians. It would also allow a court to execute an "emergency order" for one spouse to stay in the home in the case of violence without the other spouse there for 90 days.

      "As a result, all men, women and children living on reserves will have equal rights related to the occupancy, transfer or sale of the family home that were not previously guaranteed to first nation members living on reserves," Mr. Valcourt said.

      Assembly of First Nations British Columbia Regional Chief Jody Wilson-Raybould said that bill should not be characterized as dealing with aboriginal women's issues and that it should not be studied at the Status of Women Committee.

      "This is because these matters are not simply women's issues," she said. "Pushing forward this legislation in absence of a more comprehensive approach to community safety and governance could arguably increase the risk to women and children in First Nation communities that do not have their own MRP regimes. At the very least, given the provincial courts will have increased responsibility to deal with matters under Bill S-2, Canada must undertake to ensure that the provincial courts understand their new role, budget and plan accordingly."

      NDP MP Jean Crowder (Nanaimo-Cowichan, B.C.), her party's aboriginal affairs critic, said while most people agree that matrimonial real property needs to be addressed on reserves, this is not the way to do it, especially since the committee did not have time to do due diligence in its study.

      "The Conservatives have signaled unequivocally that they're going to pass it. They have the majority and it will pass. We know that that bill is deeply flawed, in terms of there's not legal aid, there's no education and training for the provincial courts to deal with the complex land codes on reserve. There's no additional dollars for enforcement of the emergency protection orders. There's no recognition that in many of the houses there could be multiple generations of families. What's going to happen? Is everybody going to have to move out of the house? I don't know," Ms. Crowder said. "It's a very complex matter."

      Ms. Crowder said currently the bill gives a transitional provision of one year, but there should be a three-year minimum to allow First Nations to decide if they will create new matrimonial property laws and if so, to implement them properly.

      "I've gone over the bill, clause by clause, essentially what it's doing is you have your own codes in place or you have to deal with provincial codes. No other remedies in between. No alternate dispute resolution," she said.

      "I don't expect it to pass, but I'm going to bring an amendment to change the transition period to 36 months, but also to call for non-legislative measures. If you dealt with those two things, there's a possibility that at least a longer transition period will allow First Nations time to develop their own matrimonial codes," Ms. Crowder said.

      Ron Swain, national vice-chief of the Congress of Aboriginal Peoples, said that his organization supports the bill, but there needs to resources available to support First Nations.

      "The Congress of Aboriginal Peoples strongly supports matrimonial real property on reserve. We recognize that by implementing this legislation, many communities will be burdened with an increase in responsibility. For this reason, it is important that communities be provided with the necessary tools and financial resources to assist them in implementing this important legislation," he said.

      "This is an instrumental bill. It is important that we don't impose legislation on aboriginal peoples and their communities, but rather help aboriginal peoples by establishing a reciprocal relationship in working together and supporting aboriginal communities to ensure they are able to integrate equality while maintaining their cultural values and traditions," he said.

      In an op-ed on the bill, Conservative MP Joy Smith (Kildonan-St. Paul, Man.) said the bill is "critical" for future generations of aboriginal children. "We are working hard to advance equality for women and to remove the barriers to women's participation in society and eliminate violence against women. This includes aboriginal women," she said. "Despite opposition to this important legislation, our Conservative Government will continue to stand up for the rights of victims, Aboriginal women and youth. We will ensure all women have equal rights and protections in Canada."


      The Hill Times

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