Matrimonial real property reform overdue

There's no doubt that the Canadian government persists in projecting an image of Canada as peacemaker and protector of human rights, both at home and abroad. Recently, however, more and more citizens are stepping forward to challenge that perception.
For instance, former United Nations Human Rights Commissioner Louise Arbour has openly criticized Canada for its outmoded and self-congratulatory stance on human rights issues. Her remarks were inspired by Canada's opposition to the UN Declaration on the Rights of Indigenous Peoples which passed in September 2007. When Canada voted against the measure, Justice Arbour suggested that Canadians have "an unduly romantic vision" of their country.
This outdated self-image has been particularly apparent in the never-ending battle to reform antiquated matrimonial property laws (MRP) affecting Native communities. Because legislation has not kept up with the times, many First Nations women and children are forced out of their homes after separation or divorce.
Since the inception of the Canadian Human Rights Act in 1977, governments of the day have conceded that certain sections perpetuate unfair treatment of people living on reserve. A succession of Indian Affairs ministers have insisted that the inequities built into the legislation were only "temporary." They repeatedly pledged to move forward with reforms to the Indian Act itself. Despite lip service to reform, Section 67 of the human rights code has been problematical for the past thirty years. It stipulates that "nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act."
In effect, Section 67 exempts the Indian Act from the federal human rights code. Decisions or actions of band councils are shielded from applications of the Human Rights Act. Aboriginal women, above all, have been disproportionately affected by inaction on the issue, since they are unable to file complaints with the Canadian Human Rights Commission (CHRC.)
First Nations people continue to grapple with a complex web of overlapping, conflicting and debilitating regulations. According to the Constitution Act of 1867 Indian reserve lands are held by the federal government in trust for bands. The Indian Act (section 20) allows band councils to allot land to band members by issuing certificates of possession.
Most of these certificates are in the husband's name and Native women cannot take advantage of provincial MRP laws which call for the equal division of property.
Matrimonial property is defined as the property owned by one or both spouses and used for a family purpose. This includes the land and anything permanently attached to the land such as the family home.
As Manitoulin Island attorney Susan Hare has observed, many Aboriginal women have been adversely affected by land codes dating back to colonial times.
As a member of the Law Society of Upper Canada, she has been a staunch advocate for redress. In her M'Chigeeng First Nation practice, she has represented many clients dispossessed by the current MRP system.
"This problem keeps arising," Hare points out. "The cases that were brought to me were historical cases. They were important because they involved our Elder women and they were also important in that they put the spotlight on discrimination against Aboriginal women. The sad thing is that the Elders were reluctant to sue the government or to sue the band.
Back then women didn't speak out and challenge authority."
Over the past thirteen years she has listened to many heart-wrenching stories of dislocation. In confidence, the dispossessed women describe the day-to-day uncertainty they face at the prospect of losing their home and security. In many of these situations, Hare blames the actions of inept Indian Affairs bureaucrats combined with "patriarchal attitudes" for perpetuating the unfair treatment.
"The agents might 'forget' that the woman was the owner of the land and not the husband," said Rolanda Manitowabi. "Mistakes were made and these errors were compounded by more mistakes. The one common element in all these cases is the overall sloppiness of the record-keepers."
Like other First Nations lawyers and women's organizations, she has been growing impatient with the slow pace of change. In her view, the imposition of the Indian Act in 1876 essentially "violated all human rights acts" by its very nature.
An attempt to repeal Section 67 failed in 1992 because many Native leaders stand by the principle that First Nations are sovereign and should not be governed by any federal or provincial laws.
The matter has resurfaced on the federal agenda many times in recent years. For instance, in 2002 INAC released a document entitled "After Marriage Breakdown."
Then in June 2003, the Senate Standing Committee on Human Rights conducted a study of MRP rights on reserves. They reiterated that people on reserve have fewer rights regarding their matrimonial home when a relationship ends than do people living off reserve. The remedies found in Canadian law are not available to people living on reserve, they confirmed.
The committee's report (Walking Arm-in-Arm to Resolve the Issue of On-Reserve MRP) was not published until June 2005.
The Harper government introduced legislation to repeal Section 67 in December 2006 and spent several months gathering input from national Aboriginal organizations.
Then in November 2007, the Harper government reintroduced Bill C-44 and renamed it Bill C-21. On December 13, 2007 Chuck Strahl, INAC minister, acknowledged that the pace of reform is unacceptably slow.
"First Nations reserves are the only place in Canada where there is no law governing division of MRP. Yet these laws have existed for decades for Canadians who are not living on reserve," he said. He announced that the Harper government was "serious" about resolving the long-standing MRP issues.
Meanwhile, the Liberals demanded amendments, including a three year delay in implementation.
They insist bands need more resources to handle the expected flood of complaints about discrimination. They also support an interpretive clause that gives direction to administrative or judicial bodies to ensure collective rights and individual rights are balanced.
In addition, they call for a derogation clause to make it clear the human rights act must be applied in a way that it does not undermine Aboriginal constitutional and treaty rights.
At the end of January 2008 the House of Commons finally wrapped up its study of the bill to repeal Section 67.
As so often happens with a potential federal election looming, deadlock and stalemate have followed.
Debate has centred on suitable mechanisms to respect indigenous sovereignty while protecting individual and collective rights.
Some observers fear the reforms will exacerbate the problems already facing First Nations. (CHRC) has not been silent on the urgency for reform. They issued a report entitled "A Matter of Rights" (2005) and that was followed up by "Still a Matter of Rights" (2008).
The CHRC told Parliament, "First Nations citizens are still denied the protection from discrimination that other citizens take for granted. That is unacceptable in a free and democratic society that values fundamental human rights."
Getting rid of section 67 will not be an instant panacea for existing MRP problems. Many stumbling blocks remain, according to Hare.
Once Section 67 is repealed, she predicts that many Native bands will have to defend themselves against policies over which they have no control. In the process, she also anticipates that many long-simmering women's issues will be brought to the forefront.
"We'll see how it pans out," she said. "Hopefully, women will be strong enough to use the legislation to their benefit. If nothing else, it will put the feet of the leadership to the fire."
Although she backs women's MRP rights, she sympathizes with the untenable position created for bands.
She points out that the practice of administering land on reserves is based on policies from a hundred years ago.
"The bands try hard," she said. "But they are limited by policies of Indian Affairs. They are not unfair people; they don't want to be in that position, but Indian Affairs is in control."
As with all complex social and legal issues, it helps to put a human face on the hardships involved.
Previous generations of Aboriginal women have been somewhat cautious in asserting their rights, according to Hare. Many cultural and religious barriers discouraged women on reserve from speaking out about injustices in their daily lives. But slowly this reticence is changing as more contemporary First Nations women articulate the reality of MRP inequities.
Rolanda Manitowabi of Wikwemikong Unceded Reserve knows first hand that the world can turn upside-down overnight. Her personal revelations illustrate many of the common threads running through stories told by those left in limbo.