AANO Committee Report
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With respect to immediate action to be taken, the Committee recommends that the Indian Act be amended so that provincial/territorial laws with respect to the division of both personal and real matrimonial property can apply. As stated in the present report, this is only a partial solution. The Committee will make further recommendations in its final report as to measures to be implemented so as to avoid the distinctions provided in provincial legislation, inter alia those based on marital status.
The Committee recommends that the amendments to the Indian Act take into account the fact that some First Nations already have measures in place with respect to the division of matrimonial property and that they should be able to continue to follow their own rules so long as they afford protection at least equivalent to that offered by provincial legislation.
The Committee recommends that the amendments to the Indian Act take into account the rights of children, including their right to continue to live in their community. The Committee will make more precise recommendations in its final report.
The Committee recommends that the Indian Act be amended so as to recognize a right of occupancy of a residence to protect those whose name does not appear on the Certificate of Possession, or when the Certificate of Possession is held by a third party.
The Committee recommends that it be made possible to register on-reserve family homes so as to protect the rights of spouses.
Inasmuch as access to reserve lands is tied to Indian status and Band membership, the Committee recommends that the Indian Act be amended so that not only the women who lost their status prior to 1985, but also their children and their grandchildren may have status and membership, and so that women who upon marriage lost their membership in the First Nation into which they were born would automatically regain it should their marriage break down, should they so wish.
With respect to immediate action to be taken, the Committee also recommends that the issue of division of matrimonial property be expressly addressed in any self-government negotiations and that specific provisions on this issue be included in any agreement-in-principle and final agreement.
For the longer term, the Committee recommends that appropriate funding be given to national, provincial/territorial and regional Aboriginal women’s associations so that they can undertake thorough consultations with First Nations women on the issue of division of matrimonial property on reserve. These consultations should be the first step in a larger consultation process with First Nations governments and Band councils with a view to finding permanent solutions which would be culturally sensitive, with the unequivocal understanding that there can be no cultural justification for violations of human rights protected under the Canadian Charter and international law.1
| 1 | A Hard Bed to Lie In: Matrimonial Real Property On Reserve, Interim Report of the Standing Senate Committee on Human Rights, November 2003, pp. 12-13, online:http://www.parl.gc.ca/37/2/parlbus/commbus/senate/com-e/huma-e/rep-e/rep08nov03-e.pdf |