Warrior Life Studios

Pam Palmater

Tag: matrimonial real property

  • Facts verus Rhetoric: Response to INAC’s Misinformation About Bill S-2

    This letter is in direct response to the letter submitted by Jason McDonald, Director of Communications for Minister of Indian and Northern Affairs Canada (INAC) Bernard Valcourt to the Montreal Gazette on August 7, 2013. INAC has gone to great lengths to spread misinformation about the intentions, interpretations and potential impacts of Bill S-2 Family Homes of Reserve and Matrimonial Interests or Rights Act. It is interesting to note the Minister had his communications person write this letter, versus a Justice Canada lawyer.

     

    Despite the near unanimous rejection of previous versions of this bill and Harper’s infamous promise to First Nations at the Crown First Nations Gathering not to unilaterally amend the Indian Act; the Harper government has spared no expense in its propaganda campaign to gain support for this unconstitutional bill. What follows is my response to INAC’s misinformation about the bill. I have testified before Senate as a legal expert on a previous version of this bill, but was specifically prevented by Conservative members from testifying on the new version. I have also published other blogs on this bill. http://indigenousnationhood.blogspot.ca/2012/11/bill-s-2-family-homes-on-reserve-and.html http://indigenousnationhood.blogspot.ca/2011/09/bill-s-2-family-homes-on-reserves.html

    http://indigenousnationhood.blogspot.ca/2010/06/bill-s-4-step-back-in-time.html http://indigenousnationhood.blogspot.ca/2010/06/bill-s-4-backdoor-assimilation-and-land.html http://indigenousnationhood.blogspot.ca/2010/06/bill-s-4-empty-shell-of-legislative.html  

    INAC: The bill “extends to people living on reserve the same basic rights and protections that individuals living off reserve enjoy regarding the family home”

    This is not true. Indigenous Nations are sovereign Nations with their own laws, rules, policies, governments, and justice systems. Their status as sovereign Nations are recognized in the fact of treaty making, as only sovereign Nations can enter into treaties with one another – citizens of a state do not have that right.

     

    Their legal right to govern themselves is also protected in section 35 of the Constitution Act, 1982 as an inherent right (pre-existing to Canada as a state and not granted or given through law). The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as well as other international laws also protect the right of First Nations to be self-determining.

    First Nations have exclusive jurisdiction to determine their own laws, rules and procedures in relation to any marital or property issues on their traditional, treaty or reserve lands. When INAC claims they are extending the same basic rights to those living on reserve, what they mean is that they are illegally imposing provincial laws on reserve contrary to section 91(24) of the Constitution Act, 1867, section 35 of the Constitution Act, 1982 and contrary to various treaties and international laws. This legislation will also require the consent of the provinces and companion legislation to bring it into effect.

    Even the description of a house on reserve as the family home is misleading. On many reserves, homes are occupied by upwards of 25 people including husband, wife, children, grandparents, aunts, uncles and cousins. Certificates of Possession (like fee simple deeds) can be in the name of hundreds of people. Many First Nation families do not exist as the western notion of nuclear family with mom, dad and 2.5 children. Any disposition of what is deemed a family home could have devastating effects on large extended families and especially elders. First Nations have not asked for this bill.

    INAC: Bill S-2 does not change the fact that only registered Indians can hold a Certificate of Possession on reserve, but non-First Nations people can possess the home for a temporary period of time.

    This statement is misleading about the real implications of the bill. The Indian Act prevents anyone who is NOT an Indian from even temporarily possessing land on a reserve – which includes permanent structures on the land, like a house. Section 20(1) of the Indian Act specifies:

     20 (1) No Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.”

    What INAC is trying to do is unilaterally amend the Indian Act in an illegal way – in violation of domestic and international law. Section 2 of the Indian Act specifies that reserve lands are reserved for the exclusive use and benefit of the band (First Nation) for which they were set aside. These lands are not for anyone else’s use.

    Further, many treaties set up reserve lands for the exclusive use and benefit of Indians – not non-Indians. These treaties are now constitutionally and internationally protected and cannot be unilaterally amended. This country would not exist but for the treaties which agreed to share the land – now they are constitutionally protected and cannot be violated if Canada wishes to remain a democratic country. Harper can’t pick and choose which constitutional provisions he likes – Canada is either democratically governed with a constitution or it is a lawless dictatorship.

    INAC does not have the power or authority to enact legislative provisions, such as this, that would be in direct conflict with its own constitution and other laws. INAC is also not being truthful when it claims that the Act only allows temporary possession by non-Indians. In fact, non-Indians can gain up to a life interest in lands and homes on reserve. This is far from temporary and combined with other proposed legislative amendments, this could translate into permanent possession.

    INAC: The courts need this legislation to facilitate emergency protection orders to remove a violent partner from the home.

    This is not true. INAC has focused on this legislation as being intended to protect First Nations women from violence, which it implies is rampant on every reserve. Government representatives have presented a false choice between First Nations women being tossed from their homes in the middle of the night or protecting self-government for First Nations. Yet, INAC has offered no statistical, research-based or other evidence to prove that women losing their homes on reserve is a rampant or common occurrence.

    In direct contrast to their testimony, INAC has confirmed that the majority of CPs are held by women, not men. Additionally, when First Nations women living in shelters were interviewed about this legislation, the women emphasized the fact that their interests are not separate from their First Nation community – and that none of them wanted their community’s Aboriginal or treaty rights violated such as this legislation does.

    This line of reasoning being promoted by INAC amounts to spreading racist, hateful stereotypes about First Nations for political purposes. INAC wants support to do indirectly, what Canada is not legally permitted to do directly – take the remaining amount of lands held by First Nations and transfer them to Canadians, corporations and governments.

     

    If this legislation was about protecting First Nation women, they would have built more homes on reserve, funded new shelters, increased funding for preventative services and increased funding for access to legal services for these women. Instead they have created  a new legal regime that the majority of First Nation women will never be able to access.

    What is also extremely concerning about this provision is that it purports to empower courts to issue protection orders (possession of home to spouse) as against the alleged abuser in the absence of a charge or conviction. It also empowers the court to make possession orders for homes and lands on reserve – which are communal First Nation property – without any notice to the First Nation or any of the family members impacted by the order, like elders. This provision violates the basic human rights and freedoms of First Nations and further denies individuals any administrative fairness and justice.

    INAC: The ratification process outlined in the bill is done according to First Nation practices and is to ensure the collective interests are protected.

    Again, this is not true. The ratification process as outlined in the bill is a paternalistic control mechanism to ensure First Nations comply with INAC objectives – it is not consistent with First Nation customs, traditions, practices or laws. Some First Nations already have their own laws in this regard, but INAC refuses to recognize these laws, and instead demands that First Nations engage in an Indian Affairs-designed and controlled process. If the concern was truly that laws are needed in this area, then INAC would recognize those First Nation laws.

    Similarly, this legislation is not designed to respect collective interests to homes and lands on reserve, but is intended to further carve out individual interests and create new legal interests for non-Indians. According to INAC, reserve lands represent less than 0.2% of all the lands First Nations used to control. For INAC to want to divide up and steal the rest of those lands is unconscionable, let alone illegal. The spirit and intent of our nation to nation treaties was to share the wealth, not usurp it all for one treaty partner and leave the other impoverished and living on hand-outs.

    First Nations have exclusive jurisdiction over their own laws and enforcement mechanisms and do not need INAC approval or supervision to deal with these issues. This provision is a gross violation of the constitutionally and internationally protected right to be self-governing.

    INAC: INAC has consulted extensively with First Nations on this issue.

    This is not true. In fact, INAC’s own Special Ministerial Representative on Matrimonial Law on Reserve who interviewed First Nations individuals, communities and organizations all over Canada, concluded that none of the information packages or meetings to date amounted to legal consultation as required under section 35 of the Constitution Act, 1982. INAC representatives themselves told attendees at several meetings that various discussions were not intended as consultation.  Further, several meetings held with national organizations does not constitute legal consultations with the First Nation communities who actually hold the Aboriginal and treaty rights impacted.

    Consultation is supposed to be a mutually negotiated, designed and funded process which ensures impacted First Nations communities (in this case, all 615) are fully informed about the legislation and its intended impacts as well as take measures to accommodate their concerns and obtain their consent. This simply did not occur. The Supreme Court of Canada has stressed repeatedly that Canada is legally obligated to consult, accommodate and in many cases, obtain the consent of First Nations prior to taking any action or decision that has the potential to impact constitutionally protected Aboriginal and treaty rights. UNDRIP further requires that Canada must obtain the free, informed and prior consent of First Nations before impacting their rights.

    This has not happened and in fact, each version of this bill has been nearly unanimously rejected by First Nations men, women and communities all over Canada.

    INAC: Canada is further supporting First Nations by creating a national Centre of Excellence to help First Nations implement these laws.

    This new Centre was not requested by First Nations. If INAC wanted to support First Nations they would not have made substantial funding cuts to all the National, regional and provincial First Nation organizations that already assist First Nations with law development and implementation. Finally, law development is costly in any government, and INAC is expecting First Nations to develop and implement these laws without any funding support.

    INAC is clearly not genuinely concerned about empowering First Nations governments, but is instead reverting back to nation-wide, one-size-fits-all paternalistic control. We all know what happens when INAC has control – we have deaths and torture in residential schools, lack of clean water and safe sanitation systems on reserve, housing crises, lack of education, suicide epidemics and other conditions of forced impoverishment. It’s time INAC got out of the business of controlling First Nations and let them govern themselves – they couldn’t do any worse than the atrocities already committed by Canada on our people. Please contact your MP and oppose this legislation.

  • Bill S-2 – Family Homes on Reserve and Matrimonial Rights or Interests Act

    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.

     Most of Canada’s legislative initiatives go largely unexplained to grassroots Indigenous peoples – community members and leaders alike. This Harper government, in particular, has done everything it can to mislead, misinform, distract, confuse and outright lie to First Nations about its intentions with regards to the Indian Act. More so, they have done very little to explain the implications of bills to those who will be impacted – First Nations community members.

     Most will recall Prime Minister Harper’s infamous words at the so-called Crown-First Nation Gathering this past January: “To be sure, our Government has no grand scheme to unilaterally repeal or to unilaterally amend the Indian Act.”

     Yet, here is the extensive list of government bills currently before Parliament which will unilaterally repeal or fundamentally alter the Indian Act in significant ways:

              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             Bill S-207  An Act to Amend the Interpretation 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 Property Ownership Act

              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.

      It would make this blog far too long to review all of the sections, but communities should be aware of several problematic areas. The Preamble (which is just an introduction and does not contain any law) does give an important indication of the two theoretical underpinnings of the bill:   (1)   The bill has an individual-rights/interest focus versus an Indigenous communal, holistic approach; The bill focuses on the best interests of the individual child as opposed to the collective, inter-connected interests of the entire family (including the child), extended family, community and Nation. It is this very approach that led to residential schools, 60’s scoop and the current over-representation of our Indigenous children in the care of child welfare.

    (2)   The bill views First Nations peoples as “cultures” versus to governments with their own jurisdictions or Nations with their own sovereignty.

     The bill focuses everyone’s attention on the particular culture of the First Nation – which is to be “considered” by a judge in a marital dispute over property. However, there is no deference for First Nation legal or governance jurisdiction over property disputes over their own territories. This is very similar language to Supreme Court of Canada cases which have essentially frozen Aboriginal rights in “pre-contact” times and only protect those rights which the court considers “integral” enough. In this case, non-Indigenous people will be judge and jury over what our culture is, which parts of it are important, and whether it is relevant to property issues on reserve.

     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.

     My recommendations (in part):

     (1) The Status of Women committee who will be studying the bill should reject the bill in its entirety. The entire bill conflicts with both Indigenous laws and Canadian law and cannot be saved.

     (2) Canada should respect its own policy position that First Nations have a right to be self-governing which is constitutionally protected within section 35. This would correspond with the right to be self-determining as per Article 3 of UNDRIP.

  • Bill S-2 – Family Homes on Reserves: Protection or Threat?

    On Wednesday, September 28, 2011. Minister John Duncan introduced Bill S-2 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 in the Senate where it had its First Reading. The short name for this proposed legislation is Family Homes on Reserves and Matrimonial Interests or Rights Act. The full text can be found at this link: http://www.parl.gc.ca/content/hoc/Bills/411/Government/S-2/S-2_1/S-2_1.PDF As some of you may recall, this is the fourth attempt at passing federal legislation that would address what Indian and Northern Affairs Canada (INAC) is referring to as a ‘legislative gap’ in relation to how property gets divided upon the break up of a common law relationship or marriage. The previous bills, Bill C-8, Bill C-47 and Bill S-4 all died on the order paper, but not before Aboriginal organizations, First Nations, Indigenous women, and other groups like family law lawyers and the Canadian Bar Association all unanimously testified against the bills. Now, with a majority government, the Harper Conservatives plan to ram this legislation through Parliament against our will. INAC has again introduced this legislation without engaging in formal legal consultations with those First Nations whose constitutionally protected Aboriginal and Treaty rights may be negatively impacted. Given that this is national legislation that will apply to ALL First Nations and given that reserve lands are protected in the Indian Act, the Constitution Act, 1982, and various Treaties, land claims and self-government agreements, there is no doubt that this legislation requires formal legal consultation as envisioned in the Guerin, Delgamuukw, Haida, Taku and Mikisew decisions of the Supreme Court of Canada. The majority of my concerns in relation to this legislation were explained in earlier blogs in relation to the previous Bill S-4 by the same name. My previous blogs were entitled: Bill S-4: An Empty Shell of a Legislative Promise https://pampalmater.com/2010/06/bill-s-4-empty-shell-of-legislative.html Bill S-4: Backdoor Assimilation and Land Grab https://pampalmater.com/2010/06/bill-s-4-backdoor-assimilation-and-land.html Bill S-4: A Step Back in Time https://pampalmater.com/2010/06/bill-s-4-step-back-in-time.html Letter to editor of Globe & Mail re Bill S-4 https://pampalmater.com/2010/07/letter-to-editor-of-globe-mail-re-bill.html In these previous blogs, I explained the history, the development of the bill, my main concerns with it and my recommendations to amend it. These are the same concerns I brought forward when I testified as an independent expert witness before the Senate Standing Committee on Human Rights on June 7, 2010 in relation to Bill S-4. I am not sure if I will be called again to testify in relation to this ‘new’ bill, but I hope so. The following is a link to my official submission to the Senate Standing Committee on Human Rights in relation to Bill S-4: http://www.nonstatusindian.com/docs/Presentation2SenateCommittee-HumanRights.pdf I have read through the new bill in its entirety and while some amendments have been made, the core essence has remained and will have a significant impact not only on the nature and legal status of reserve lands generally, but specifically in relation to who can hold, occupy, use and benefit from reserve lands. Given that most First Nations have medium to high rates of out-marriage (marriages to non-Indians), the exclusive ‘benefit’ of reserve lands to which Indians are entitled could be significantly reduced, if not completely eliminated in some First Nations. If there is any right of First Nations men, women, and children that demands full and informed consultation, accommodation and consent, is that of their constitutionally and now internationally protected rights in their own reserve lands. The current lack of consultation is criminal and any attempt to pass this legislation will not only breach our treaties, land claims, and self-government agreements, but will create an additional significant and substantial harm to Indigenous women who have only asked for justice – not a loss of their collective Aboriginal rights. If Tom Flanagan’s and Manny Jules’ plan to privatize reserves does not eliminate our reserves, this bill surely will. Stand up, make your voice heard and protect what little land we have left for our future generations! For all you rabble fans, this blog and others can also be viewed on rabble.ca under blogs! http://rabble.ca/blogs