by Lloyd Dolha
The Harper government has introduced legislation to protect the matrimonial property rights of aboriginal women.
In bringing in the bill on March 4th, Indian Affairs Minster Chuck Strahl, said the legislation will deal with the division of matrimonial property in marital break-ups and will offer the same protection to women and children on reserve as are available off reserve.
“Our government is taking concrete, practical action to fill an intolerable, inexcusable legislative gap that has existed for far to long,” said Strahl. “It’s the 21st century, and yet we continue to hear stories of aboriginal women suffering because this legislative change has not been made – a change which was made for other Canadians decades ago.”
The Indian Act is silent on the issue and provincial and territorial laws cannot be applied to reserves, meaning there is no legal provision for the equitable distribution of property following the collapse of a marriage.
The legislation will also allow First Nations communities to develop their own community-specific laws to deal with matrimonial property.
The department of Indian Affairs said the bill was drafted after wide consultations dating back to September 2006.
Strahl acknowledged that some aboriginal communities might have concerns about an invasion of their jurisdiction, but said that he conducted extensive consultations to produce a balance piece of legislation. Drafts of the legislative proposal were also shared with the Native Women’s Association of Canada (NWAC) and the Assembly of First Nations.
But the Native Women’s Association of Canada said those consultations were a sham and the federal government has acted unilaterally in trying to resolve the issue of a lack of matrimonial real property laws that apply on reserve. The association said that despite engaging in discussion process with national aboriginal organizations, the federal government’s legislation – known as The Family Homes on Reserve and Matrimonial Interests or Rights Act – does not have the support of NWAC.
In a press statement, NWAC said the Minister Strahl was well aware that NWAC did not support the legislative draft proposed after a lengthy meeting in December in which the association outlined the critical importance of systemic solutions, the promotion of indigenous legal systems and the need for non-legislative solutions. NWAC argues that non-legislative solutions are necessary to make the rights in the legislation real for communities.
“As a result,” notes NWAC president Beverly Jacobs, “we have not experienced our relationship with the federal Department of Indian Affairs as being one of partnership or even consultation, but rather it feels like another experience of colonialism, or at best piecemeal, individually based solutions that will not result in real equality for the women we represent.”
Matrimonial property refers to the house or land that a couple lives on while they are married or in a common-law relationship. In 1986, The Supreme Court of Canada ruled that provincial and territorial laws regarding matrimonial real property do not apply to reserve land. The gap in the law has had serious consequences, because when a marriage or relationship ends, there is no law that aboriginal couples who live on reserve can use to help then resolve a dispute.
NWAC says that this gap means that women who are experiencing violence, or who have become widowed, may lose their homes on reserve. As a result, the law harms aboriginal women and children more often than aboriginal men.
During 2006, the association held extensive meetings across the country with aboriginal women, who were directly impacted by the lack of matrimonial property laws that apply on reserve. NWAC said that from those meetings, it was clear that the issues of violence, poverty housing crises and the power of chiefs and councils were intimately woven into the stories the women shared.
NWAC argues that an integrated approach that looks beyond the idea of legislation as a solution is required. In their report Matrimonial Real Property: A People’s Report, the association stresses the connections between the lack of matrimonial real property laws and the intergenerational impacts of colonization, violence against aboriginal women, and a limited access to justice.
“I promised aboriginal women who participated in providing solutions to this issue that their voices would be heard,” said Jacobs. “I worked hard to get their messages to government, but those messages fell on deaf ears.”
“I now fear that there is going to be more harm done than good. There is nothing in the legislation that addresses the systemic issues of violence many women face that lead to the dissolution of marriages nor is there any money available for implementation. In the end, we end up with a more worthless piece of paper.”