AFN Women’s Council calls for gender-based analysis of Matrimonial Property bill

by Lloyd Dolha

The Assembly of First Nations’ Women’s Council has announced plans to apply a Gender Balanced Analysis (GBA) to the proposed Matrimonial Real Property bill (Bill C-47), in hopes that the analysis will help Parliament better understand how to fix the bill to gain the support of First Nations women.

“We are not convinced that the bill as it stands is going to help First Nations women access to justice,” said Deputy Grand Chief Roseanne Archibald. “Let’s be clear, First Nations women and families have waited too long already for equitable and workable solutions and this bill is at best a half-way measure.”

She added that if the government had applied a culturally relevant GBA to the bill, they might have drafted more helpful legislation that better reflects the consultations held with First Nations women.

“After all the consultations, and presentations and drafting of reports, the government didn’t listen to our women. Yes they asked for our opinion, but the bill does not reflect what we told them,” said Grand Chief Archibald. “What they’ve drafted is a very much made-in-Ottawa bill.”

The AFN Women’s Council sees for major problems with the bill as it stands.

These are:

• The bill will ultimately force First Nations women to seek remedies in provincial courts. This is neither timely or financially viable for many First Nations women in remote communities.

• During consultations First Nations women asked that Matrimonial Real Property right be developed in from their own cultural values and traditions, not under provincial or federal rules that they had no part in crafting.

• Rather than recognizing First Nations authority, the bill constrains how First Nations rules are to be made in a complicated process yet offers no support for First Nations doing the work. In the end, the bill will impose a complex, bureaucratic system, with no support or consideration for implementation.

• For Matrimonial Real Property rights to be meaningful, women told the council the government must ensure there is adequate, safe and accessible housing.

The AFN’s Women’s Council developed the culturally relevant GBA that was endorsed by the Chiefs’ in Assembly in May 2007. Applying the analysis to the MRP bill is part of the work leading up to the next National Aboriginal Women’s Summit scheduled for July 29-31 in Yellowknife,

At present, when there is a breakdown of a marriage or common-law relationship on reserve, there is no legal provision for an equitable division of the matrimonial real property, that is the family home and the land it sits on. The Indian Act, which governs most aspects of reserve life is silent on the issue.

In the Native Women’s Association of Canada’s (NWAC) discussion paper on Culturally Relevant Gender Based Analysis (CRGBA), NWAC argues that a CRGBA approach can be used as a tool for use in policy development and evaluation by decision-makers.

The CRGBA approach takes a macro-view of the history of the development of Canadian society in its negative impact on aboriginal women, highlighting current realities faced by aboriginal women, such as greater risk of domestic violence, residential school intergenerational impacts and institutional racism that results in aboriginal women’s overall marginalization today, as well as strategies and solutions to combat those impacts.

Such an approach is “intended to ensure programs and services are developed in a balanced fashion, reflecting the unique needs of those population most affected,” such as aboriginal women.

In Quebec, in a March 19th open letter to the Senate and Canadian political parties, Quebec Native Women (QNW) (or FAQNW) president Ellen Gabriel echoed the AFN Women’s Council concerns over domestic and the related issues surrounding inadequate housing.

Gabriel also called on the federal government to conduct more proper consultation with the QNW on the proposed act because the “QNW also believes that the solution to the Matrimonial Real Property issue in Quebec must take into consideration the fact that Quebec is a province that applies the civil code as well as common law” and, as such, “would not meet the interests of First Nations in Quebec.”

Gabriel further questioned the ability of some Quebec First Nation band councils to implement the new legislation. “…we question the capability of band councils to deal with all the new complaints these new legislations will generate.”

But the proposed legislation, now before the House, has two goals: to make sure matrimonial real property rights are available to on-reserve residents and to provide a mechanism for First Nations to develop their own community-specific laws.

And in fact, Ottawa has made it clear that the proposed act is designed as an interim measure to fill the legislative gap until First Nations pass their own rules.

As it stands, the act provides basic protections to on-reserve couples during a relationship, in the event of a split and on the death of a spouse.

For example, the draft law allows for a court to ban a spouse from the family home in situations of family violence – a too common situation on-reserve.

The Native Women’s Association of Canada (NWAC) also opposes the proposed legislation, calling for “the promotion of indigenous legal systems.”

Nevertheless, the AFN Women’s Council wants the application of the culturally relevant gender-based analysis of the bill.

In an interview, Archibald said reserves should be left alone to come up with their own measures for the division of assets.

“Each community would figure out how they’d deal with conflict resolution, making sure that there’s a law that’s equitable for everybody.”