In the Chamber -- Grant Mitchell's Blog

Matrimonial Property Rules for Aboriginal Communities

Posted 8/17/2010 by Grant Mitchell

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In the most recent session of the Senate, Bill S-8 was debated and ultimately passed. This bill laid out rules for dealing with matrimonial property in the event of marital break-up or the death of one or both partners in a relationship.

The issue is complicated because of several features of aboriginal culture and community structure:

1. The land in question is aboriginal land which in almost all cases is communally owned. That means that while someone can build a house on it, they cannot own that land. So, when a relationship breaks up, what is there to transfer?

2. It is particularly problematic if one of the spouses, particularly the woman, is non-aboriginal and therefore can establish no claim to stay on aboriginal land without living with an aboriginal partner.

3. In some cases, there are no rules governing how long an estranged spouse can live in the matrimonial property and who should leave the property.

The bill, now a law, calls for:

1. A “temporary” matrimonial property regime imposed by the government on aboriginal lands including specified periods of time that a spouse can remain in a home if they are not aboriginal.

2. Then, aboriginal reserves are to develop their own matrimonial property structures.

3. There will be a “center of excellence” established to assist aboriginal groups to develop rules.

4. Once they have a proposal, that proposal will have to be approved by a government appointed official and subjected to a community referendum in which at least 25% of the electorate vote.

When the debate started, I was quite convinced that something had to be done to deal with the problems that gaps in matrimonial property rules have caused in many places for a long time. I am, as are most, very concerned that aboriginal women have been disadvantaged by the gap in matrimonial property rules on most first nations land. I was hopeful that this bill would address them in an effective way.

However, as I listened to witnesses before the Senate Human Rights Committee, I became more and more convinced that the bill was flawed:

1. All aboriginal groups but one opposed the bill. The one support group is considered the representative of urban aboriginals who are subject to provincial laws because they do not live on aboriginal lands.

2. It was claimed that this law will reduce violence against women. It is not clear that the new law will do anything to support that objective. It deals with what happens to the house and property after the breakdown of a relationship.

3. While the law calls for aboriginal groups to set out a proposal for their own matrimonial property laws, there is no funding to support developing these rules. There was no budget figure presented for the “center of excellence” which would not in any event meet the need for resources required to make rules by each first nation.

4. However, the most compelling revelation for me was the opportunity to observe the difference in some fundamental cultural values. Over and over again, the point was made that this law imposes the broader Canadian concept of individual rights on the aboriginal concept of collective rights. If we have learned anything in situations like these, it is that it simply does not work to impose profoundly differing views of the world in such a condescending way, no matter how well intended the effort may be. Compounding the condescending attitude inherent in this bill, are the provisions for having a government appointee approve whatever rules package an aboriginal group might develop (reminiscent of the Indian Agent system), requiring a vote on the proposal (what other jurisdiction in Canada is required to do that?), and failing to provide resources to the aboriginal groups to develop their own system.

In the end, I just could not accept that this bill, now law, would do what it was designed to do and I had great difficulty with the fact that it does not recognize and honour the difference in rights views that are so critical to the aboriginal way of life and culture. We will not solve any problems if we do not understand the critical impact of cultural differences and respect them.

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