Harper’s Conservatives have given the signal that they may, once again, refocus their legislative eye on Bill S-2 Family Homes on Reserve and Matrimonial Interests or Rights Act (otherwise known as the MRP bill). To this end, the parties have been preparing to study the bill and hear from witnesses on possible amendments.
Bill C-428 Indian Act Amendment and Replacement Act
Bill C-27 First Nations Financial Transparency Act
Bill S-2 Family Homes on Reserve & Matrimonial Interests or Rights Act
Bill S-6 First Nations Elections Act
Bill S-8 Safe Drinking Water for First Nations Act
This does not include any of the omnibus or other bills which impact First Nations. There are two others bills expected to be introduced in the New Year as well:
First Nation Education Act
It would be almost impossible for First Nation community members to know what these bills are really about simply by reading the titles of the bills. The Conservative Party is very good at using titles for their bills which betray what the bill actually does. Bill S-2 is a prime example of a bill that is being promoted as one which will protect Indigenous women from domestic violence and “give” them equal rights upon marriage or relationship breakdown. This bill does neither of those things.
(2) The bill views First Nations peoples as “cultures” versus to governments with their own jurisdictions or Nations with their own sovereignty.
The general focus of the bill is to enact provincial-like rules with regard to the divison of marital property on reserve after the break-up of a marriage or common-law relationship. This essentially means that each spouse is entitled to half – the house, land, etc. However, these provincial-like rules are not optional – they are mandatory. While the act considers them to be interim rules, the fact is no funds have been allotted for governance, law-making or enforcement and thus for many First Nations, they will remain permament.
The general focus of the bill is to enact provincial-like rules with regard to the divison of marital property on reserve after the break-up of a marriage or common-law relationship. This essentially means that each spouse is entitled to half – the house, land, etc. However, these provincial-like rules are not optional – they are mandatory. While the act considers them to be interim rules, the fact is no funds have been allotted for governance, law-making or enforcement and thus for many First Nations, they will remain permament.The bill also contains the following provisions:
– They apply to all First Nations until they enact laws pursuant to the bill;
– Non-Indians will be able to gain rights (exclusive occupation, life interest, etc) to the home and contiguous land on reserve;
– A judge can make a ruling that violence has occurred and bar that person from the house, without the alleged offender being charged or convicted;
– First Nations are not entitled to notice for emergency protection orders which give possession to a house and land to non-Indians;
– Certificates of Possession can be forcibly transferred from one First Nation spouse to another; and
– A person who is not member/Indian, can apply to have order enforced as though he/she was member/Indian.
Without getting into too much technicality, this bill either conflicts with or violates various Canadian laws:
(1) Bill S-2 conflicts with the Indian Act – The Indian Act reserves land for the exclusive use and benefit of Indians and make it an offense for non-Indians to trespass on reserve, yet Bill S-2 creates new rights for non-Indians on reserve;
(2) Bill S-2 is outside is outside Canada’s legislative authority in section 91(24) of the Constitution Act, 1867 – This is because Canada is purporting to legislate with regard to the property and civil rights non-Indians which is the exclusive jurisdiction of the provinces. Thus, provincial legislation will also be required to make the bill effective.
(3) Bill S-2 violates section 35 treaty rights in the Constitution Act, 1982 – This is because many reserves were set up via treaties, which are now protected in section 35. These treaties are for the benefit of Indians – not non-Indians.
(4) Bill S-2 violates section 35 Aboriginal rights in the Constitution Act, 1982 – This is because the inherent right of First Nations to be self-governing over their own peoples and lands is recognized by Canada as protected in section 35. Yet with this bill, Canada purports to control internal matters even more than they do now.
(5) Bill S-2 represents a breach of Canada’s honour, its fiduciary obligations and its legal duty to consult and accommodate. Bill S-2 was drafted without First Nation input, there were no legal consultations, and the bill will result in more federal control, not less.
(6) Bill S-2 violates many articles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – including:
Art.3 – the right to be self-determining;
Art. 4 – the right to be self-governing over our own internal affairs;
Art. 19 – the right of free, informed and prior consent before ANY legislative measures that affects us; and
Art. 37 – the right to recognition and enforcement of our treaties.
Some of the other key concerns that have been raised by witnesses who have testified previously include the lack of access to justice as all remedies must be access through courts, no funding is provided for accessing legal services, and many communities don’t have local access to courts. The issue of housing on marital breakdown is further complicated by Canada’s refusal to address the housing crisis or provide adequate funding for shelters.
There are many other issues not outlined here in order to keep this blog simple. However, I will be publishing a more detailed analysis of both direct and indirect impacts of this bill.