Bill S-4 – An Empty Shell of a Legislative Promise

Bill S-4 is An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves. The short title is: Family Homes on Reserves and Matrimonial Interests or Rights Act. The bill was introduced in the Senate in March 2010 and had its first reading on March 31, 2010. Its second reading was May 5, 2010 and it is currently before the Standing Senate Committee on Human Rights for study. This is the third time that this bill has been introduced. Its other two incarnations, were Bill C-8 and Bill C-47 both of which were opposed by Aboriginal peoples and both of which did not become law. Canada is now trying to pass what is referred to as MRP legislation (laws which deal with how to address property of the marriage after marriage breakdown) without consulting with First Nations and Aboriginal peoples impacted by the bill. Yesterday, I appeared as a witness before the Standing Senate Committee on Human Rights to present my views about the Bill. Below are the recommendations that I made to the Committee: RECOMMENDATIONS: (1) Bill S-4 should be withdrawn until consultations have been completed. I wrote a 700 page doctoral thesis on the status provisions of the Indian Act, yet despite my familiarity with registration, it took me a great deal of time to fully understand and assess the actual legislative implications of Bill C-3. Bill C-3 is only 8 pages long and contains only 10 amendments that primarily deal with one main section of the Indian Act. Bill S-4 on the other hand, is 45 pages in length and contains 60 new legislative provisions that interact with numerous complex provisions of the Indian Act dealing with reserve lands. These provisions involve a complex interplay between property, family, Aboriginal, constitutional, human rights and administrative law. How can the Minister expect the majority of First Nations to understand the bill let alone agree to it – if he has not consulted with them? Canada cannot enact a bill which is not legally sound and claim that this will fill the current legislative gap. Had Canada consulted years ago, we would not be looking at the third incarnation of legislation – we’d have addressed the issue already. If the bill is not withdrawn, then the following substantive amendments should be made: (2) The bill must include a section in the preamble that specifically acknowledges First Nation jurisdiction over property and civil rights (including MRP) within their reserves and that this jurisdiction stems from their inherent right of self-government which is recognized and protected by section 35 of the Constitution Act, 1982. (3) Specific reference must be made in the preamble to the inalienability of reserve lands as well as the fact that reserve lands are protected for the exclusive use and benefit of First Nations. The Minister says on the one hand that Bill S-4 will clearly not “affect the title to the lands or change the status of collective reserve lands”, but on the other hand he admits that there are provisions that will “touch” on those rights. Despite the Minister’s conflicting assurances regarding reserve land protections, Bill S-4 will not only create new interests in reserve lands, but it will also create new entitlements for non-Indians to those lands. (4) A “for greater certainty” clause should be added which specifically clarifies that First Nations have the power to enact MRP and related laws and related dispute resolution mechanisms under relevant sections of the Indian Act. In the alternative, a clause could be added to specifically empower First Nations in this regard. For the Minister to say that Canada or the courts can’t recognize First Nations jurisdiction to enact their MRP laws on reserve is to say that Canada has no legislative authority under section 91(24) of the Constitution Act, 1867, that the Constitution Act, 1982 is not the supreme law of the land, and that all decisions of the SCC have no legal application here in Canada. That position is simply unsupportable. (5) With regard to laws enacted by First Nations, there must be a specific provision which provides that in the event of a conflict between federal, provincial or First Nations laws in this area, First Nations laws will be paramount. Rushing Bill S-4 through the Senate as if First Nations are inherently discriminatory and regularly violating human rights is based on negative stereotypes not supported by the evidence. As the Ministerial representative concluded: “First Nations are just as responsible, accountable and transparent as other governments in Canada.” They should therefore be provided the opportunity to enact their own laws and dispute resolution processes with regard to MRP. (6) Sections which refer to mandatory referendum or ratification processes must be deleted and replaced with a section that allows First Nations to establish their own law-making and dispute resolution mechanisms. This section might also include specific reference to the Charter of Rights and Freedoms, the Constitution Act, 1982, and First Nations customary law. (7) There must be a specific clause in the bill which contains a non-derogation clause so as to specifically protect Aboriginal and treaty rights as well as rights contained in land claims and modern agreements. Similar clauses appear in section 25 of the Canadian Charter of Rights and Freedoms as well as the CHRA. (8) There must be a specific and complete exemption from the application of Bill S-4 for those First Nations who have already developed their own laws in relation to MRP or for those who subsequently do so. The Minister characterized Bill S-4 as the “perfect resolution”. Respectfully, he could only come to such a conclusion if he ignored the input given by his own MRP representative, the views of nearly 1000 Aboriginal women chiefs and councillors, the NWAC, the majority of First Nations witnesses who opposed the bill and the CHRC and the CBA who all raised serious questions about it. (9) Similar to the repeal of section 67 of the CHRA, there must be a minimum of a three-year transitional period for First Nations to provide them with a fair opportunity to review the new bill and develop their own MRP laws and dispute resolution processes. It has taken Canada over 100 years to get around to considering MRP rules for the Indian Act – First Nations deserve at least a three year transition period to develop their own laws before any type of transitional legislation is imposed on their communities. There is a clear precedent with equally important rights in the CHRA and no reason why that can’t be incorporated here. The choice is not between homelessness for Aboriginal women or supporting self-government. We can make the choice to have both as supporting self-government is supporting Aboriginal women . Furthermore, Aboriginal women have suggested self-government as a solution to this issue. (10) Any section of Bill S-4 which creates a new interest in land for non-Indians should be deleted entirely. Temporary possession of reserve lands in an emergency situation for periods of 90-180 is one thing, but possession of reserve lands by non-Indians for a period greater than one year should be determined as per First Nation laws in this area. First Nations collective rights to their land is not something that should be taken lightly as they are protected by the Indian Act, section 35 of the Constitution Act 1982 and numerous treaties. The SCC in Sparrow, Delgamuuwk, Haida, Taku, and Mikisew Cree to name a few have held over and over again that Canada has a legal obligation to consult with First Nations. Therefore, Canada lacks the requisite authority to unilaterally change the essential characteristic of reserve lands through Bill S-4 and it certainly can’t do so without formal legal consultations with First Nations. (11) Any section which refers to or incorporates the use of a verifier and/or ratification process administered by Canada, should be deleted entirely. Canada’s record on human rights in relation to Aboriginal peoples is far from clean. One need only refer to Lavell, Lovelace, Corbiere, and McIvor cases or the current NCFS discrimination complaint currently before the CHRC to see that Canada has not addressed its own human rights violations. What gives Canada the right to supervise First Nations government over MRP? (12) A “for greater certainty” clause should be included which clarifies the fact that no provision contained in Bill S-4 overrides or in any way alters the protections contained in section 89 of the Indian Act with regards to reserve lands and property. The implications of Bill S-4 have not been fully examined in light of section 89 and other provisions of the Indian Act, Aboriginal and treaty rights, section 35 of the Constitution Act, 1982 or the Crown’s fiduciary and consultation duties. This alone makes Bill S-4 fatally flawed and should be withdrawn. (13) The sections relating to valuations should be amended to take into consideration the unique nature of the interest being valued. A home which is band owned, and has no windows, no running or clean water, and is full of mold and abestos, will not appeal to a bank to provide a loan to a band member who is on social assistance to enable them to pay their ex-spouse half the “value” of the home. (14) The definitions related to spouse must be amended to reflect a longer period of cohabitation than one year given the nature of reserve lands. Some of my more general recommendations include: (15) Funding should be provided to First Nations to both participate in Bill S-4 consultations and to enact their own MRP laws and dispute resolution mechanisms. First Nations did not receive funding to help develop band membership codes after Bill C-31 in 1985 and as a result, the majority of First Nations do not have their own codes. Similarly, no money way provided to First Nations to review their by-laws and other codes for compliance with the CHRA after the repeal of section 67. Not surprisingly, most First Nations have not amended their laws or prepared for potential human rights claims despite the looming June 2011 deadline. This situation is repeating itself with Bill S-4 – no funding has been committed to First Nations to develop their own MRP laws. It should come as no surprise then if First Nations do not enact their own MRP codes and that the “transitional” or “interim” rules in Bill S-4 become the status quo. This can’t be said to respect their s.35 right to self-government. (16) Bill C-3 must be amended to fully address gender inequality which is a major barrier to the descendants of Indian women and their descendants being able to access reserve residency and Bill S-4 in the first place. The Minister testified that Aboriginal women are the most vulnerable group in Canada and that they need “immediate protection”, yet he refuses to amend Bill C-3 to finally remedy gender inequality in the Indian Act with regard to status. Failure to address Bill C-3 will render Bill S-4 useless to thousands of Indian women and their descendants. (17) Canada should withdraw all bills currently in the Senate and the House unless and until such time as it has properly consulted with First Nations and those impacted. For a full copy of my submission, go to my website under MRP which is in the Current Issues section: