By Lloyd Dolha
The Native Women’s Association of Canada (NWAC), the Assembly of First Nations (AFN), and the AFN’s Women’s Council (AFNWC) united in their opposition to Bill C-8, the newest version of a federal act regarding division of matrimonial real property (MRP). They say it will do nothing to solve problems associated with the division of matrimonial property on-reserve when an aboriginal couple breaks up. They also say that the federal Tory government has failed to adequately consult and accomodate First Nations views on the matter, resulting in a bill that is “fatally flawed” and cannot be fixed.
Beverly Jacobs, president of the NWAC said the groups met with Aboriginal women who were “directly affected by the lack of legal recourse in matters relating to the division of matrimonial real property.” She emphasized the need “to ensure that the voices of the women we talked to are heard and their solutions are implemented.” Jacobs said that NWAC held meetings with Aboriginal women prior to the introduction of Bill C-47 (last year’s version of the act) and produced a “People’s Report” that included a number of solutions to address the problems associated with the division of matrimonial property. The new bill, they say, ignores all of those recommendations and does not provide the necessary resources to implement non-legislative solutions.
Echoing the concerns of Jacobs, AFNWC chairperson Kathleen McHugh added that Bill C-8 also ignores the recommendations of Wendy Grant John (Minister of Indian Affairs’ representative on MRP), who tabled a report stating that unilaterally-imposed legislation is not the answer. “All Bill C-8 does is force families into provincial courts. This is not a solution,” said McHugh. “For many families it’s unaffordable and it will force families in remote communities to endure long waiting periods before their cases can be heard.” Jacobs added that she’s concerned the bill will put women experiencing family violence at greater risk by forcing them to wait longer for justice without adequate social supports, services, or shelters.
Both the AFN and NWAC say the bill is a one-dimensional approach to a complex problem that does not address the real issues on the division of matrimonial property in First Nations communities. They say the legislation attempts to pit the individual rights of women against the collective rights of First Nations. They called for greater collaborative efforts between the federal government and First Nations to address the root causes of the poor socio-economic conditions that can contribute to marital breakdown among First Nations couples. They want the bill scrapped in favour of a new approach that would include non-legislative measures such as local dispute resolution processes, counselling services, and emergency shelters on-reserve.
Last month, AFN leader Phil Fontaine noted that a motion to “hoist” Bill C-8 did not recieve broad support among opposition parties in the House of Commons. Hoisting Bill C-8 would have taken the contoversial bill off the parilementary agenda. Fontaine said that a motion by the federal Liberals to hoist the bill was defeated beacause opposition parties didn’t take the opportunity to reject the flawed legislation. The Liberals wanted to have the bill delayed for six months to allow federal Tories to properly consult with First Nations on the changes they believe are necessary. The Liberals believe the bill imposes a default law on First Nations communities without ensuring they have adequate resources or the capacity to develop their own matrimonial codes.
The Tory bill also mandates “verification officers” who would play an active role in the development and approval of local matrimonial real estate property regimes—an approach they say is an insulting throwback to the use of Indian agents. INAC minister Chuck Strahl countered, saying the proposed bill (formally known as “the proposed Homes on Reserves and Matrimonial Interests or Rights Act”) provides First Nations with a mechanism to enact their own culturally-relevent martimonial property laws without any involvent by the federal government—the very thing First Nations are seeking.
Strahl said the bill also ensures that in the meantime aboriginal families will be immediately protected while communities develop their own codes. The minister also pointed out that federal Conservatives held more than 100 consultation sessions to give organizations such as NWAC and the AFN ample opportunity to provide input and feedbck into the development of the bill. He said numerous studies about MRP and committees from both the House of Commons and Senate have recommended immediate action be taken. “There’s a lot of misinformation spread about Bill C-8 by those who seek to block this reform, which is long overdue,” said Strahl.
But Fontaine said that given the bill’s serious flaws, it could be subject to legal challenges because the government did not meet its constitional duty to adequately consult First Nations and that the bill itself infringes on First Nations rights. The national chief added that it is unlikely that the strict parameters imposed on First Nations will allow communities to create solutions that reflect their traditional laws and cultures and realities. Some of those realities include geographic remoteness, lack of access to the court system, high-priced lawyers, overcrowding, and lack of emergency shelters. “A number of First Nations have already taken a proactive approach to this issue and have worked with their communities to develop rules and policies related to MRP,” said Fontaine. “Under Bill C-8, the flawed federal approach will be imposed on First Nations, and these existing community-based solutions could be struck down and replaced.”
“This is not democratic,” he said. “It is inconsistent with the values of First Nations and Canadians, and only serves to do more harm to First Nations families.”