Native women sue for equality

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The British Columbia Native Women's Society is doing its best to stop the federal government from finalizing land management deals with First Nations.

Barbara Findlay, legal counsel for the Native women's group, appeared in Vancouver's Federal Court on Dec. 4 to ask the court to rule that Aboriginal women living on reserve who leave their marriages should receive the same level of legal protection that women who live off-reserve receive.

The statement of claim which launched the women's group's lawsuit against the federal government also asks the Federal Court for an injunction that would prevent the finalization of any land management deals until equality issues created by the Indian Act have been addressed.

Last year, 14 bands signed agreements in principle with the federal government under the proposed First Nations Land Management Act. The agreements would have allowed the bands to assume control of their own lands and were seen as a significant step forward in the direction of self government. The proposed act died on the order paper when the federal election was called, but it's expected the federal government will revive the legislation in this session. The British Columbia Native Women's Society wants the equal rights issue dealt with before the First Nation governments assume greater power.

Each of those 14 bands has applied to the court to be added as defendants in the lawsuit, something members of the Native Women's Society suspect is an attempt to further complicate the case in order to force them to abandon it. On Dec. 4, the judge listened to arguments from both sides about whether the bands should be added. No decision was delivered that day.

"The judge reserved judgement, meaning we should hear the decision in anywhere from two weeks to two months," Findlay said.

When Findlay is allowed to get past the preliminaries and make her case, she will argue that the present state of affairs as defined by the Indian Act is unconstitutional.

"The provincial laws of general application do apply on reserve and laws governing the division of matrimonial assets are applied when marriages involving Aboriginal women end," Findlay said. "But the law generally excludes these women when the home is involved because the home is on Crown land. That means Aboriginal women who live on a reserve are deprived of the legal remedies that other women can rely upon."

If the court agrees with that argument, then it should turn to the Charter of Rights and Freedoms - Canada's Constitution - and grant the Native Women's Society's request for an injunction that will force the federal government to change the Indian Act to extend the right to equal benefit from the law to Aboriginal women, Findlay said.

That would mean a change to the Indian Act and it's a change that band council chiefs do not welcome. Changing the nature of reserve land ownership from Crown title to fee simple title could lead to the loss of reserve land.

Presently, reserve lands cannot be used as collateral and cannot be seized to settle debts. Aboriginal leaders fear, because of the sorry state of First Nations economies, that Aboriginal people would be tempted to put up their land as a guarantee against an investment and could then lose the land if the investment is lost. Aboriginal leaders believe the reserve land base is already a pitifully small fraction of their traditional land holdings and are extremely wary of allowing any more land to slip out of Aboriginal control.

The Native Women's Society is aware of that problem. Jane Gottfriedson, president of the organization said, the lawsuit is not directed towards Aboriginal leaders who will have to deal with such complex issues; the fight is with the federal government, which she said is willing to tolerate a situation that is in direct conflict with the fundamental values expressed in the Constitution, in order to move ahead quickly with devolution.

"The government is treating our claim with cotempt," Gottfriedson said. "Aboriginal women are always the last to be taken into account. Our fight is not with Native nations. Our fight is with the federal government. They are the ones who have a constitutional obligation to protect the equality rights of Aboriginal women, whether we live on the reserve or off the reserve."