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, rather than 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 here, here, here, here and here.
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 ierests for non-Indians. According to INAC, reserve lands represent less than 0.2 per cent 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.