Technical Update Matrimonial Real Property

Assembly of First Nations
TECHNICAL UPDATE
MATRIMONIAL REAL PROPERTY

February 13, 2008

The federal government announced on June 21, 2006 that it would conduct nation-wide consultations with First Nations on issues related to matrimonial real property (MRP).

Matrimonial real property is property that belongs to married couples. Matrimonial real property becomes an issue when a marriage breaks down and that property has to be divided in a fair manner. There are provincial laws that deal with this, but these laws do not apply on First Nations reserves and the Indian Act also does not address MRP issues. This means that while First Nations have traditional law and practices dealing with these matters, many First Nations communities do not have laws that are recognized by the Federal government creating what they see as a “legislative gap.”It must be noted upfront that this problem – this “legislative gap” – was created by the federal government. The solution must come from First Nations. In fact, some First Nations have already taken steps to address this issue and have created codes, rules or bylaws that address MRP. First Nations are ahead of the government on this work.

In announcing the consultations, the Minister of Indian Affairs appointed a Ministerial Representative to oversee and review consultations with First Nations. The Representative was asked to prepare a final report that would present options to deal with the issue.

First Nations expressed many concerns about the government’s consultations. A resolution was passed at the AFN’s Special Chiefs Assembly in December 2006 (resolution 72/2006) that called on the AFN to stop participating in the consultation process and work with the government to reorient the process so that it would be consistent with the relationship set out in the First Nations – Federal Crown Accord on the Recognition and Implementation of First Nation Governments. This would mean, among other things, that the government engage in direct discussions with First Nations on solutions that respect, uphold and implement inherent Aboriginal and Treaty rights.

First Nations take the position that it is the right of First Nations governments to come up with their own solutions based on discussions with their own citizens. This will ensure that solutions are consistent with community perspectives and traditions and moreover that they directly address the needs of the community.

The resolution also rejected the three proposed legislative options put forward by the federal government. Again, First Nations maintain that MRP is an area of First Nations jurisdiction, a position strengthened by the recent passing of the United Nations Declaration on the Rights on Indigenous Peoples which recognizes areas of First Nations jurisdiction.

The AFN submitted a report to the federal government entitled Reconciling First Nations and Crown Jurisdiction Over MRP On Reserves and Addressing Immediate Needs of First Nations Families. That report raised these issues and setout a process for real engagement that would result in First Nations driven solutions.

The Ministerial Representative submitted a report on March 9, 2007. The Minister tabled the report in the House of Commons on April 20. A summary of that report and the AFN’s response can be found in the National Chief’s Bulletin sent to all First Nations in April 2007 (it is available on the AFN website at www.afn.ca).

Current Status of the MRP Initiative: Issues and Concerns

In spite of the views of First Nations and many of the recommendations of its own Ministerial Representative, the Government went ahead and drafted legislation. The AFN and the Native Women’s Association of Canada were invited by government to discuss the proposed legislation.

While we will not know the full detail of this legislation until it is tabled in Parliament, the approach of the government is generally to set out rules for First Nations and at the same time allow First Nations to develop their own rules.

There are four major concerns regarding the government’s proposed approach:
• It does not recognize First Nation governments. The proposed legislation sets up federal laws that will be imposed on First Nations. Even though First Nations have an opportunity to create their own laws, this is far short of actually recognizing First Nations jurisdiction on this matter. Furthermore, this is a ‘delegated’ form of authority – the federal government is attempting to tell First Nations what is and is not within their jurisdiction as governments. This diminishes and undermines First Nations jurisdiction. Related to this concern…
• The legislation could intrude on First Nation jurisdiction. It appears that, under the government’s proposed legislation, First Nations laws on MRP would have to be confirmed according to a government-defined process setout in the legislation before they can be enacted. This approach could and probably would be an unacceptable intrusion by government on First Nation jurisdiction. First Nations maintain that it the community members themselves who must confirm the adoption of First Nations rules and laws. It is not for the federal government or some external third party to dictate to First Nations how they must deal with issues that are matters of First Nations jurisdiction.
• There is no planned transition period or support for First Nations capacity building and development. It appears that the federal rules will apply immediately to all First Nations with some limited exceptions. There appears to be no support for First Nations to develop and implement their own laws on MRP to replace the federal laws, which means that the federal rules would apply to the majority of First Nations for a significant period of time.
• The legislation could and probably will impact First Nations collective rights, Aboriginal title and Treaty rights. AFN insists that an analysis of this approach is required to ensure it does not violate section 35 of the Constitution, which recognizes and affirms the inherent Aboriginal and Treaty rights of First Nations. Section 35 also requires the federal government fully consult with First Nations government on this matter. Further, AFN has pressed strongly for a definition of matrimonial real property that ensures there will be no impact on the collective nature of First Nation land. We remain very concerned, however, that this is a risk in the proposed federal legislation. As First Nations, we know we can produce solutions that respect human rights while, at the same time, balance individual and collective rights.

Next Steps

The latest information indicates that the Government is planning to introduce the MRP legislation during the current session of Parliament – sometime between now and the end of March. AFN will continue to monitor this situation closely and provide regular updates.

In summary, the AFN is concerned that the proposed legislation will impact Aboriginal title and Treaty rights. This is completely unacceptable. This problem is made worse by the fact that First Nations have had no time and no opportunity to provide informed consent.

The AFN is calling on the government to implement the following interim, non-legislative measures to address the immediate needs of First Nations women and men who are divorced or separated:
• Adequately fund existing mechanisms that can deal with MRP issues, such as the First Nations Land Management Act for those First Nations who have expressed their desire to become part of this process as an alternative mechanism
• Support local mediation and dispute resolution processes
• Immediately allocate funds to deal with the chronic housing shortage on reserves.

At the same time, AFN has prepared a resource hand-book, including a guide to developing First Nation law in this area to assist First Nations in dealing with this issue in advance of the federal legislation becoming law. This hand-book is available for download from our website or can be attained by contacting our office.

Strategic Planning, Policy and Law
Assembly of First Nations