AANO Committee Report

Government Response to the Third Report of the Standing Committee on Aboriginal Affairs and Northern Development

Findings contained in the Fifth Report

Colin Mayes, M.P.
Chair
Standing Committee on Aboriginal Affairs and Northern Development
House of Commons
Ottawa ON  K1A 0A6

Dear Mr. Mayes:

I am pleased to respond, on behalf of the Government of Canada, to the Third Report of the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, which was presented to the House of Commons on June 19, 2006. For the benefit of the new Committee members, much of this Government Response contains background information provided in the Government Response tabled in October 2005, updated to indicate that active engagement with stakeholders has been set in motion by this government since that time.

I would also like to thank the Committee members for endorsing the work that culminated in the earlier report, Walking Arm-In-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property, and for inquiring into the government’s efforts regarding this very important issue. By confirming previous recommendations on this issue, it is clear that the Committee desires an appropriate and enduring solution to this issue as soon as possible. The government supports the underlying goal of the Committee’s report with respect to on reserve matrimonial real property and has indicated that it will strive to resolve this issue with new legislation that provides clear new rules.

This government is committed to supporting Aboriginal women and children by addressing the on-reserve matrimonial real property issue through legislative proposals to be introduced in 2007. To this end, on June 20, 2006, I announced measures intended to protect the rights and to ensure the well-being of women, children and families living on reserve. A key element of these measures is a nation-wide consultation process on the issue of on-reserve matrimonial real property which will begin by fall 2006. Central to this process was the appointment of Wendy Grant-John, former Musqueam Chief, as my Ministerial Representative. She is to work with Indian and Northern Affairs Canada (INAC), the Native Women’s Association of Canada (NWAC) and the Assembly of First Nations (AFN) in developing a plan for a consultation process, to help facilitate the process while ensuring all interested parties are heard, and to present recommendations for action by spring 2007, including a legislative solution for this pressing human rights issue. To ensure the appropriate involvement of NWAC and the AFN, each organization will be provided funding in 2006-2007 to support their roles.

I believe that previous work has laid the foundations which will allow this round of consultations to deal quickly with key issues. Since 2001, INAC has done significant research and has produced a number of publications on the issue of on-reserve matrimonial real property, including a comprehensive discussion paper to better understand the issue from a sociological and legal perspective. To supplement this research, the department held focus group discussions with First Nation women, community members, Chiefs and lawyers. These focus groups recommended that, prior to any consultations, information must be provided to all stakeholders. Based on this recommendation, the department conducted several information sessions across Canada. Audiences have included First Nation communities, Aboriginal women's organizations, Aboriginal leadership and law schools. The department has also developed plain language documents, which have been widely distributed across Canada to raise awareness of the issue. Moreover, the department has developed self-government guidelines to assist federal negotiators in ensuring that the issue of on-reserve matrimonial real property is addressed in self-government negotiations and agreements, and through the Fist Nations Land Management Act adopted on December 5, 1996, has enabled First Nations to create their own matrimonial real property codes. In addition, further documents are being developed for the consultation process. These documents will be posted on a website dedicated to the consultation process on matrimonial real property and will be provided to you as soon as they are finalized.

INAC has finalized the research and analysis phase of the on-reserve matrimonial real property issue and is now looking to build on the excellent work undertaken by Parliamentary Committees, First Nations leaders, academics, and others who have commented on this issue. The government is well prepared to move towards a legislative solution. I would now like to take this opportunity to address each of the three recommendations made in your report.

DETAILED RESPONSES TO THE RECOMMENDATIONS

Recommendation 1

1. That, consulting with the Native Women’s Association of Canada and the Assembly of First Nations to the extent possible, considering the urgency of the situation, the government immediately draft interim stand-alone legislation or amendments to the Indian Act to make provincial/territorial matrimonial property laws apply to real property on reserve lands. This legislation should also:
   • reflect a partnership process among government, the Native Women’s Association of Canada and the Assembly of First Nations;
   • recognize First Nations’ inherent jurisdiction with respect to matrimonial real property;
   • authorize First Nations to enact their own matrimonial property regimes in an enabling rather than a prescriptive manner;
   • set out a time frame for the development by First Nations of their matrimonial real property regimes;
   • contain a sunset clause providing that the legislation will lapse at the end of that time period; and
   • contain a non-derogation clause providing that nothing in the legislation abrogates or derogates from First Nations’ section 35 Aboriginal and treaty rights.
2. That the government commit to providing recognized national and provincial/territorial First Nations organizations with the human and financial resources required to enable them to assist members to develop their own matrimonial real property codes; and
3. That the government provide additional support for First Nations wishing to create matrimonial real property laws by developing a Web site to showcase “best practice” examples of matrimonial real property laws.

The government appreciates the excellent work that has occurred in relation to this issue and is desirous of a legislative solution for this issue that respects Canadian Charter of Rights and Freedoms and human rights considerations. Moreover, the government is grateful that the Walking Arm-In-Arm report has provided a useful legislative framework that will inform the consultation process.

The government does not believe, however, that the issue should be remedied by hastily adopting interim legislation. First Nations communities and individuals, as well as provinces and territories, would have concerns regarding enforcement of court orders on reserves and utilization of provincial courts. Enforcing interim legislation which may ot be supported at the community level and which may not have the buy-in of provinces and territories could prove to be very difficult. Furthermore, interim legislation does not appear to be a course of action supported by key Aboriginal organizations.

The Native Women’s Association of Canada currently supports the development of a permanent legislative solution to address the on-reserve matrimonial real property issue but stresses the need for consultations to be undertaken before legislation is developed. Furthermore, it is not clear that the application of provincial and territorial law is the only course of action to deal with the issue. The Assembly of First Nations does not currently support the application of provincial/territorial family laws on reserves and situates on-reserve matrimonial real property as an issue that should be resolved in the larger context of recognizing the inherent jurisdiction of First Nation governments over family law, reserve land management, the administration of justice and human rights. Although both organizations acknowledged the urgency to address this issue, both indicated that before any legislative action is considered by Canada, thorough and broad community-based consultations must be undertaken.

Therefore, in the interest of good governance, effective implementation and in light of the recommendations made by the Assembly of First Nations and the Native Women's Association of Canada, the government will pursue a permanent and enduring legislative solution.

With respect to recommendations b) and c), the government is committed to working collaboratively with the AFN, NWAC, and others to settle this issue in a manner that is sustainable and supported by those most affected by it. It will deal with these implementation considerations as the legislation is developed.

Recommendation 2

That, in broad consultation with First Nations organizations and communities, the government collaborate with those organizations and communities to develop substantive federal legislation on matrimonial real property for those First Nations that have not created their own laws on the subject matter within the time frame set out in the interim legislation. This legislation should cease to apply to First Nations that subsequently develop their own matrimonial real property regimes.

For reasons outlined above, the government agrees that further consultations with First Nation organizations and communities are needed to put in place an enduring legislative framework to address the issue of on-reserve matrimonial real property. In this regard, INAC will continue the ongoing collaborative process with the AFN and NWAC to move the on-reserve matrimonial real property issue towards a legislative solution. INAC will also engage and inform those stakeholders not affiliated with either organization, as well as provinces/territories concerning on-reserve matrimonial real property to ensure that their concerns and perspectives are taken into consideration in the legislation that will be brought forward in 2007.

Recommendation 3

That, in broad consultation with First Nations organizations and communities, the government undertake immediate review of the section 67 of the Canadian Human Rights Act with a view to amending that legislation

• to protect on-reserve First Nations individuals from discrimination under the Indian Act and
• to insert an interpretive clause requiring a balance between individual and community interests.

The government will not be addressing Section 67 of the Canadian Human Rights Act during the on-reserve matrimonial real property consultation process. The government will be dealing with the review of Section 67 of the Canadian Human Rights Act on a separate basis in the coming months.

Resolving the issue of on-reserve matrimonial real property is an area of focus for our government. Personally, I am committed to ensuring that Aboriginal women who live on reserves have access to rights and remedies concerning the division of matrimonial real property that are currently available to other Canadians.

I look forward to working with the Standing Committee as it considers a government Bill on the issue.

Sincerely,

The Honourable Jim Prentice, PC, QC, M.P.

c.c.: Mr. Roger Préfontaine