Feds Impose New Marriage Property Law on Reserves

Until this week, victims of domestic violence on many First Nations reserves had no legal recourse to keep their abusive partner out of the home they shared if the partner had a share in the house. Nor was there a legal obligation to split the assets of many First Nations couples whose marriage or common law partnership ended because of death or divorce.

That all changed Monday, when the Family Homes on Reserves and Matrimonial Interests or Rights Act, formerly known as Bill S-2, came into force. It's the federal government's attempt to solve a 27-year-old issue created when the Supreme Court of Canada ruled provincial or territorial laws governing matrimonial, or marriage, property -- the family home and assets -- did not apply to reserves. The Indian Act, which governs reserve life, does not mention marriage property rights, either.

The new law gives First Nations communities one year to create their own marriage property rights, or have new federal legislation, which splits assets equally between partners, imposed upon them.

"[The law] is about equitable division of assets, and in the case of violent or abusive relationships, it is about protecting a spouse and children, if any, by allowing the court to grant an individual exclusive occupation rights in the family home," said federal Aboriginal Affairs Minister Bernard Valcourt at a press conference in Vancouver yesterday morning.

Lack of protection for these rights is one of many issues caused by the Indian Act that have been raised by First Nations. But the Assembly of First Nations (AFN) B.C. office described the new law as another case of government taking it upon themselves to fix problems created by the Indian Act, instead of giving First Nations the adequate time and support to create comprehensive self-governments.

"This is a really complex area for First Nations to consider," said Jody Wilson-Raybould, B.C.'s regional AFN chief. There are a number of factors to consider when creating community-specific and culturally-sensitive marriage property laws, she said.

"We're talking about coordinating divorce laws with those of the state, we're talking about land and land tenure systems, and trying to reconcile all of these areas of law that come into play when you're considering the division in terms of matrimonial property on reserves, not to mention indigenous laws and the whole process of decolonization."

Creating laws to govern these issues could take well over a year for some communities, Wilson-Raybould said. While the government's law would be repealed once a First Nation's new law goes into effect, the implication of federally imposed laws is "neo-colonial" -- trying to help, but actually imposing government's own will on First Nations people -- she said.

'A very hard process'

Many Canadians aren't aware that property rights do exist on some First Nation reserves. First Nations can opt out of the land sections of the Indian Act, and instead create their own land management laws under the First Nations Land Management Regime. In some cases this means First Nations can own their on-reserve homes, giving them the option to sell them if they so choose.

First Nations who follow the Indian Act's land management regulations have their band council control the land, divvying it and housing up among the community.

However, victims of domestic violence living with their partners off reserve are given temporary exclusive occupation rights to their home by a judge, temporarily banning their abuser from living there. That legal recourse isn't available to victims living on reserves.

B.C.'s Representative for Children and Youth Mary Ellen Turpel-Lafond said that during her time as a lawyer, she represented many women whose right to safety and a roof over their heads wasn't protected by the courts.

"That has been a very hard process, as you can imagine, [on] the actual lives of children: mums and kids who have had to leave a reserve, go to an urban centre to go to a shelter -- if we could get them there -- and then be often shunned in the community as people who took children away when they didn't want to do that," said Turpel-Lafond, who is of Cree and Scottish descent and grew up on a northern Manitoba reserve.

It's an issue the government has tried to to solve through legislation since 2008. Three separate bills were introduced, but died after Parliament was either prorogued or dissolved, until Bill S-2 was introduced in the Senate in 2011. It was passed into law on June 19, 2013.

The first step of the law's implementation began on Monday: First Nations now have one year to create their own community and culturally-specific marriage property laws, with the help of the new Centre of Excellence on Matrimonial Real Property, an arm's-length body operated by the National Aboriginal Land Managers Association (NALMA). Gordon Bluesky, chair of NALMA's western region, welcomes the opportunity to help nations create their own laws.

"While the legislation is new, the principles are not: providing for, caring for, and protecting our families, building safe and strong communities; these principles are central to First Nations culture and teachings," he said at yesterday's press conference.

The law's second step takes effect in 12 months: if a First Nation has not created their own community-specific laws, the federal law applies. However, nations can continue to work towards the development and implementation of their laws with the Centre of Excellence for the next five years -- the length of time the government's almost $5-million operating fund for the Centre is supposed to cover.

In absence of a First Nations' community law that could provide this, the federal law would benefit victims of domestic violence, for instance, by keeping their abuser out of the home and providing the victim and any children they may have with a roof over their heads while they decide what step to take next.

Gov't taking a 'neo-colonialist' approach: chief

Under the First Nations Land Management Regime, many nations already have their own marriage property regulations. Minister Valcourt said those nations will not be subject to the new federal law.

"The wish of Parliament, the wish of government, is that First Nations have their own laws. And it is only after a full year that that part of the Act will come into force where, in the absence of a community or a First Nation law, the federal provisional provisions will be applying," he said.

Despite what the government called an "extensive two-year consultation process" with First Nations, in collaboration with the AFN and the Native Women's Association of Canada, the AFN's B.C. office criticized government for imposing legislation instead of allowing First Nations more time to develop their own laws.

Regional Chief Wilson-Raybould said nations can't work to move beyond the Indian Act because of the government's continual introduction of legislation that "imposes provisional rules upon our nations that [we'll] have to seek to comply with."

She said she doesn't fault the government for wanting to fill the property rights gap that currently exists on many reserves. But she wishes the government had more respect for First Nations self-governance and would stop its "neo-colonialist" approach to issues on reserves.

"We're continually responding to [bills and legislation] and it impedes the really hard work that's underway in our communities in terms of having to react to them," she said, adding First Nations then have to attempt "to reconcile the various pieces of legislation with what we're actually doing [on reserves]," Wilson-Raybould said.

How to enforce?

There's also the issue of how the provinces will respond to these new laws. Although property rights are mostly federally managed, in many cases it is provincial police forces, judges, and lawyers that are responsible to enforce them.

Wilson-Raybould said the B.C. government has already been in contact with her office to figure out what the province will "have to deal with in terms of ensuring one, we're compliant [with the law], and two, what access to justice is available, and that we deal with the ancillary issues that are still hugely problematic on our reserves in terms of housing and temporary shelters."

Turpel-Lafond said she's concerned about the province's ability to meet the needs of First Nations, who until now weren't necessarily calling the police for issues of domestic violence because there was little to no legal recourse to protect them.

"Domestic violence is the second-most common reason why police are called out in British Columbia after impaired driving and driving under the influence," she said, adding she will soon sit down with B.C.'s minister of justice to discuss how the legislation interacts with the province's Family Law.

The law introduced yesterday is far from all that's needed in terms of protection for children on reserves, Turpel-Lafond said. Other issues she would like to see dealt with include the lack of enforcement for child support payments on reserves, and the unavailability of shelters for victims of domestic violence.