Valcourt rejects new law; Council remains unconcerned

The Mohawk Council of Kahnawà:ke has added one more law that challenges federal authority in its community.

“It’s a jurisdictional dispute. We are the elected council in the community … we have operated outside the scope of Indian Act. We have taken mandates from the community and developed in their own jurisdiction and territory so we’ve been creating laws … for many years,” said Chief Lloyd Phillips.

In December, council received word from Aboriginal Affairs Canada that its recently adopted Kahnawà:ke Family Homes and Matrimonial Interests Law would not be recognized by Ottawa.

“It has come to my attention that your proposed law has not been approved in accordance with the Family Homes on Reserves and Matrimonial Interests or Rights Act or under the authority on the First Nations Land Management Act. …. I am not able under section 11(6) of the Act to list the name of your First Nation on the Department’s website as having a community-specific matrimonial real property law in force under the Act,” wrote Minister Bernard Valcourt.

Notice from the federal government will not slow down the process, said Phillips, who was a driving force behind the new law. In fact, he says, work is being undertaken right now through the community’s Justice Act to ensure the smooth implementation of the Kahnawà:ke Family Homes Law.

“When we created our own law, we never had the intention of asking approval from the federal government,” said Phillips. Information about the law was sent to Ottawa simply as notification and so the community could be included in a list of First Nations with matrimonial laws, which would take precedent over the provincial court.

The Kahnawà:ke Family Homes Law replaces Canada’s S-2 ‘Matrimonial Real Interests’ legislation, which gives provincial courts jurisdiction to adjudicate in the division of property when a marriage or common-law relationship ends. Phillips is clear that the Kahnawà:ke Family Homes Law is outside the scope of S-2 and instead based on inherent rights and the council’s authority in the community.

“(S-2) was totally unacceptable to us,” said Phillips. The council began working on its own matrimonial law in April 2013, passing the Kahnawà:ke Family Homes Law unanimously in October 2014 using the Urgent Process of the Community Decision Making Process. A Mohawk Council Resolution in December brought the law into force. Phillips expects it to be implemented by this spring.

Under the Kahnawà:ke Family Homes Law, final decision-making powers fall under the jurisdiction of the community’s Justices of the Peace. Having a JP make a ruling is the last resort, says Phillips, who notes that it is the goal of the law to implement traditional processes that result in consensus decision-making.

“We want to ensure there’s a fair division of properties and that children are a priority in any type of decision that is rendered,” said Phillips.

He also notes that local judges will take into consideration lands that historically belong to families while a provincial judge will not make the same distinction.

As the council moves forward following the community’s ratification of the Kahnawà:ke Justice Act, which allows for the full implementation of the Kahnawà:ke Family Homes Law, Phillips says council will not be stymied by the fact that the federal government does not  recognize any of the laws enacted by the Mohawk Council of Kahnawà:ke.

In Valcourt’s letter, he states, “Our records also indicate your First Nation is not operating under a negotiated self-government agreement with Canada that includes First Nation jurisdiction over reserve land.”

“There’s always that argument with the outside on whose law applies. But it’s very clear to us that our law supersedes any law from federal or provincial,” said Phillips.