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Indigenous Nationhood

Pamela Palmater's picture
Dr. Pamela D. Palmater is a Mi'kmaw lawyer and member of the Eel River Bar First Nation in New Brunswick. She teaches Indigenous law, politics and governance at Ryerson University and heads their Centre for Indigenous Governance.

A brief overview of Bill S-2: Family Homes on Reserve Act

| November 15, 2012
A brief overview of Bill S-2: Family Homes on Reserve 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.

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For more detail and background to this shocking story, see:

Harper Launches Major First Nations Termination Plan

Quote:
On September 4th the Harper government clearly signaled its intention to:

1) Focus all its efforts to assimilate First Nations into the existing federal and provincial orders of government of Canada;

2) Terminate the constitutionally protected and internationally recognized Inherent, Aboriginal and Treaty rights of First Nations.

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