AANO Committee Report

Mrs. Nancy Karetak-Lindell, MP
Chair of the Standing Committee on Aboriginal Affairs and Northern Development
House of Commons
OTTAWA ON K1A 0A6

Dear Mrs. Karetak-Lindell:

I am pleased to respond, on behalf of the Government of Canada, to the report of the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, Walking Arm-in-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property, which was presented to the House of Commons on June 8, 2005.

I would like to thank you and the committee members for taking the time to conduct an examination of on-reserve matrimonial real property. The government appreciates the diligent work of the committee that led to its recommendations and contributed greatly in advancing this issue by confirming the need for a legislative solution.

Since 2001, Indian and Northern Affairs Canada has done significant research and has produced a number of publications on the issue of 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. Finally, the department has recently developed self-government guidelines to assist federal negotiators in ensuring that the issue of matrimonial real property is addressed in self-government negotiations and agreements.

Indian and Northern Affairs Canada 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 accomplished by your committee to move the issue towards a legislative solution.

I would like to take this opportunity to address each of the three recommendations made in your report.

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 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.
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.

I commend your committee for taking the time to develop a detailed legislative framework to address the issue of matrimonial real property. This insightful recommendation will be useful in the development of a legislative solution to address this issue.

Based on the research and outreach activities undertaken by Indian and Northern Affairs Canada, and the recommendations made by your committee and the Standing Senate Committee on Human Rights, the government recognizes that a legislative solution is clearly needed to fill the legal gap that currently exists in regard to on-reserve matrimonial real property.

The government does not believe, however, that the issue should be remedied by immediately adopting interim legislation, without further engagement of First Nation communities and individuals, as well as provinces and territories. Enforcing interim legislation which may not be supported at the community level and which may not have the buy-in of provinces and territories would prove to be very difficult. The issue requires an enduring legislative solution, one which can best address the matrimonial real property rights of on-reserve residents while also meeting the needs of First Nation communities.

More specifically, although the immediate application of provincial/territorial family laws on reserves may seem to be the most expedient solution at first glance, there are significant implications to such legislative action which would need to be further assessed. For instance, provinces and territories will likely have concerns, which could include the enforcement of court orders on reserves, increased demand for legal aid and utilization of provincial courts. Provinces and territories would therefore need to be consulted before such legislation could be adopted. Further, the application of provincial/territorial family laws on reserves may not be supported by First Nation organizations, communities and individuals. In this regard, the Assembly of First Nations has already indicated to Indian and Northern Affairs Canada that it does not support this legislative solution to address the issue of matrimonial real property.

As well, in light of the new political climate stemming from the Canada-Aboriginal Peoples Roundtable process and the recently signed Political Accords, further consultations with First Nation peoples and organizations are needed prior to taking any legislative action. As stated by the Prime Minister in his opening address at the Canada-Aboriginal Peoples Roundtable: "No longer will we in Ottawa develop policies first and discuss them with you later. This principle of collaboration will be the cornerstone of our new partnership." The Roundtable culminated in the signing of Political Accords where the Government of Canada and the national Aboriginal organizations committed to this principle of collaboration. The primary goal of the Accords is to lay the foundation for strengthened partnerships between the government and the national Aboriginal organizations on key policy issues.

In keeping with the spirit of the Accords and further to your recommendation to engage the Native Women's Association of Canada and the Assembly of First Nations on the issue of matrimonial real property, preliminary consultations were held by Indian and Northern Affairs Canada in July 2005 with both organizations to discuss the recommendations made by your committee and the Standing Senate Committee on Human Rights, and to determine next steps to move the matrimonial real property issue towards a legislative solution. In these preliminary consultations, both organizations indicated their interest in working with the federal government. The Native Women's Association of Canada currently supports the development of a legislative solution to address the matrimonial real property issue but stresses the need for consultations to be undertaken before legislation is developed. The Assembly of First Nations situates 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.

I am very pleased that your committee was able to hear from a number of key witnesses on the issue of on-reserve matrimonial real property, as these testimonies have made a valuable contribution in our understanding of the issue and in moving the issue towards a legislative solution. Your committee did not have the opportunity, however, to hear from provinces/territories nor to widely engage First Nation groups and individuals at the community level on the issue of matrimonial real property. An enduring legislative solution to this issue will require further engagement of First Nations to ensure the development of a solution that is best supported by and best meets the needs of First Nation peoples.

In addition, the matrimonial real property issue significantly affects the collective interests of the community in the management of reserve lands. Although an Aboriginal right under section 35 of the Constitution Act, 1982 concerning the matrimonial real property issue has not yet been established by a court, First Nations have claimed, in testimony to various bodies, that an Aboriginal right to manage reserve lands and a self-government right to create their own laws with respect to family and division of reserve lands exist. The Supreme Court of Canada held in the Haida (2004) decision that governments have a legal duty to consult with Aboriginal groups where they have knowledge of the potential existence of an Aboriginal right and are contemplating conduct that might have an adverse effect on such a right. Canada now has a legal duty to consider the possible adverse impact of government actions on potential and established section 35 rights before the action is taken. In the context of matrimonial real property, it is uncertain whether there exists a legal duty to consult.

However, in the interest of good governance and public policy and in light of the Political Accords and the recommendations made by the Assembly of First Nations and the Native Women's Association of Canada, legislation should not be immediately adopted without further engaging provinces/territories and First Nation communities, individuals and organizations.

Finally, recommendations b) and c) above will need to be considered once a legislative solution is determined to address the issue of on-reserve matrimonial real property.

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 determine an enduring legislative framework to address the issue of matrimonial real property. In this regard, Indian and Northern Affairs Canada will continue the ongoing collaborative process with the Native Women's Association of Canada and the Assembly of First Nations to move the matrimonial real property issue towards a legislative solution. The department will also continue to engage and inform stakeholders by conducting information sessions on matrimonial real property.

RECOMMENDATION 3

That, in broad consultation with First Nations organizations and communities, the government undertake immediate review of 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.

This recommendation of your committee was discussed during the preliminary consultations held with the Native Women's Association of Canada and the Assembly of First Nations. The Native Women's Association of Canada asserted that the impact of repealing section 67 goes beyond the matrimonial real property issue and needs to be assessed in a broader context. It mentioned that this issue should be resolved independently of the matrimonial real property issue. The Assembly of First Nations stated that further analysis is required to determine whether section 67 should be addressed in the context of the issue of on-reserve matrimonial real property.

The Canadian Human Rights Commission has undertaken a study and consultations on this issue with various stakeholders, including the Government of Canada, the Native Women's Association of Canada and the Assembly of First Nations, with a view of making a recommendation to repeal section 67 of the Canadian Human Rights Act. The government is looking forward to reviewing the recommendations of the commission to determine the appropriate next steps required to address this issue.

Please be assured that resolving the issue of on-reserve matrimonial real property remains a priority for me and 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. Thank you again for your commitment to advancing this important issue.

Yours sincerely,

The Honourable Andy Scott, PC, MP