For a moment, enter into the life of a typical First Nation woman living on-reserve in Canada: If statistics are accurate, you are one of the poorest segments in society; also, you are unlikely to wield any authority within the power structure of the band; and you are probably not a chief or a councillor—you are more likely to be the victim of violence at the hands of a lover or husband.
Now imagine your marriage falls apart. Forget about staying in your home as it is improbable the title to the home is in your name. That’s because the certificates of possession given by Indian and Northern Affairs (which give title to property on a reserve) are usually given to men. Further, you are told by a lawyer that laws providing an equitable distribution of assets upon separation do not apply to reserves. Not content for a lesson in constitutional law, you evaluate your options. Given the lack of protection for most on-reserve First Nation women, you have none. If you have children, you fear for your custody rights as these are also not well-protected.
To continue the thought experiment, imagine the federal government is trying to pass a law that would make it easier for you to access the court system to reclaim property and some dignity from your lost marriage. Then, you hear that major Aboriginal organizations have lined up to oppose this bill because they feel they were not “consulted” enough—or the bill does not come with pots of money. It would seem these organizations are playing politics with your life.
This is the reality with Bill C-8, a critical piece of legislation that will improve the quality of life for many First Nation women who find themselves in vulnerable situations during marital breakdowns.
The issue of matrimonial property rights has been debated for decades. The Assembly of First Nations (AFN) supports changes to the law—in principle, Senate committees have prepared reports on the issue, and most importantly, on-reserve women are demanding change.
For Indian bands that come under the authority of the Indian Act, anything to do with reserve lands is governed by Ottawa and that won’t change: The Supreme Court has reiterated that provincial laws covering asset division in marital issues do not apply on-reserve. So change must come from Parliament.
This begs the question of why organizations like the AFN and even the Native Women’s Association of Canada (NWAC) have lined up in opposition to a change they have said they support?
Answer: they believe continuing jurisdictional squabbles are more important than the lives of average on-reserve women.
One press release from Nishnawbe Aski Nation (NAN), a coalition of Ontario First Nations, speaks volumes. The bill, we are told, “infringes on First Nations Aboriginal and Treaty rights and jurisdiction.” Also, they claim Bill C-8 forces First Nations to rely on “provincial/territorial courts.”
Heaven forbid First Nations be given access to the established tools for resolving issues that arise when marriages break down, the tools everyone else can use. The reality is many First Nation communities do not possess credible institutions that can protect women. Indigenous organizations that ask for self-government in family law without processes in place that will ensure competency or equity have put the cart before the horse.
Consider the tragic death of Sinclair Phoenix, a young indigenous girl, who was placed in a First Nation home on the Fisher River First Nation in Manitoba, despite concerns about her safety; she died after being placed into the custody of her birth mother. This was after indigenous groups insisted that child and family services be devolved to them and they got their wish. But the Phoenix case should cause us to be wary, and demand that outcomes be more important than politics. Likewise, in the issue of matrimonial property rights, self-government should not be the only consideration.
One criticism levelled against the proposed law is that it does not allow for community-based solutions; this is akin to southern U.S. states in the 1960s arguing the federal government shouldn’t “interfere” and actively protect the civil rights of blacks but instead allow recalcitrant states to arrive at equal rights in their own sweet time. In Canada, in 2009, the federal government should indeed mandate that First Nation women receive universal levels of protection.
Perhaps after First Nation communities demonstrate they possess credible processes and institutions to protect women, they can assume control over this issue, but not before.
Simply put, the first priority should be immediate protection for these vulnerable women. Thus, Bill C-8 should be passed immediately. Then, First Nations and governments can worry about politics.