Bill C-8 heavy on court process, lacks Aboriginal justice concepts

Canada plans to forge ahead with legislation to govern division of on-reserve real property when couples break up despite Aboriginal opposition based on a flawed consultation process and infringement of First Nations jurisdiction.
Ontario Regional Chief Angus Toulouse has been urging First Nations leaders to contact their MPs and federal party leaders to urge that Bill C-8 be opposed at introduction, or failing that, be referred to the Standing Committee on Aboriginal Affairs immediately after first reading.
But Indian Affairs spokesperson Patricia Valladeo said the government's plan is to schedule second reading of the Bill and then refer the matter to a standing committee.
The significance of the difference in timing is that referral after first reading allows the committee to make substantive changes to the Bill, while after second reading, the committee can only make amendments that respect the Bill's original intent.
Opposition from Aboriginal leaders is something the Conservative government can take with a pinch of salt.
But Bill C-8, the Family Homes on Reserves and Matrimonial Interests or Rights Act, which got first reading when it was introduced by Indian Affairs Minister Chuck Strahl on Feb. 2 strikes to the heart of Aboriginal life­the family­and could spark a groundswell of opposition in First Nations communities.
Bill C-8 is exactly the same as the previous Bill C-47, which died on the order paper last September when Parliament was dissolved. The troubled history of Bill C-47, introduced after a hasty consultation process followed by a unilateral decision on the content of the legislation, strikes to the heart of the way Canada deals with First Nations.
"We are very concerned that this Bill is being pushed at such a fast pace," said Kathleen McHugh, chair of the Assembly of First Nations Women's Council, in a telephone interview from Calgary.
"This new legislation really does nothing to resolve matrimonial real property issues at the community level. It's going to force our First Nations women and children into provincial courts."
Issues of accessibility for families in remote communities, affordability and the reality of housing on reserve are ignored, she added.
"You can't just write legislation that is not enforceable and definitely not workable at the community level."
While the legislation does provide for the enactment of First Nations laws to address the issue, it requires that the process be overseen by an "organization" and the laws be approved by a "verification officer."
"It is difficult to understand what process they're talking about," said Bev Jacobs, President of the Native Women's Association of Canada, in a telephone interview from Saskatoon.
"Rather than the communities themselves developing a process that will be based on community needs, it seems again the department of Indian Affairs will have a person or persons that will then control the process."
Jacobs said that one of the points her organization tried to communicate to Strahl was that pressing non-legislated measures are needed to address issues of violence and homelessness that underlie matrimonial property disputes.
Jacobs said she's disappointed that the federal approach seems intent on funding a new bureaucratic process, but hasn't addressed the need for funds for community dispute resolution, emergency shelters, housing and access to justice.
The new Bill is designed to fill a legislative gap for band members regarding matrimonial real property (which means the home and sometimes the land associated with it), a legal concept that recognizes the equal contributions of a man and a woman in a common-law partnership or marriage.
The gap exists because:
a.) There is no federal law as the Indian Act makes no mention of the issue;
b.) The Supreme Court of Canada ruled in 1985 that provincial property laws don't apply on reserve; and
c.) The jurisdiction of First Nations respecting matrimonial real property is not recognized by the federal government.
The situation offers a unique opportunity for Canada to incorporate Aboriginal concepts of justice in its legal code, advised former Musqueam First Nation Chief Wendy Grant-John, who as ministerial representative oversaw the consultation.
"The federal analysis of this (legislative) gap is rooted in non-Aboriginal notions of individual property ownership and the relationships of property, family and the proper role of law in regulating relationships to land and family relations," Grant-John wrote in her March 2007 report.
It's not that provincial laws are inherently wrong in their approach, but whether they're suitable "for the particular land regime of Indian Act reserve communities," said Grant-John, recommending that drafters of the legislation draw on the work of legal scholar John Borrows, who argues that extending respect to Indigenous legal traditions will reflect the reality of Indigenous life in Canada today and help build the protocols required to achieve reconciliation.
The consultation process, curtailed though it was, showed that the women whose rights are at issue in this debate­women who face being forced out of their homes and even off reserve after a breakup, losing access to band programs for themselves and their children­have their own vision of what is needed.
"Our law is simple, quiet, you don't see people going to court to win something. They are quiet and respect each other," said one woman quoted in a powerful report (entitled Reclaiming Our Way of Being) produced by NWAC.
"We probably will go back to the way we used to do things, with elders and community members, rather than go to the court system," suggested another.