Defending Matrimonial Property Legislation: Why justice for indigenous women does not jeopardize self-government

Publication, Aboriginal Futures, Joseph Quesnel

Executive Summary

The House of Commons is currently considering a Senate government bill (S-4, Family Homes on Reserves and Matrimonial Interests or Rights Act) designed to fill the legislative gap in equitable matrimonial laws on reserves.
• This issue has been studied for years, including by the United Nations, and always involves recommendations for clear legislation. First Nations lack legal authority to enact laws in this area.
• Jurisdictional issues have stymied and prevented passage of legislation, as many indigenous leaders oppose any non-indigenous authority enacting laws in this area.
• On issues of fundamental justice like this, indigenous leaders should not play politics with the lives of women. Just like Jordan’s Principle, jurisdictional battles should give way to immediate remedies, such as Bill S-4 in this case. Jordan’s Principle involved recognizing that where there are jurisdictional conflicts on who is to care for First Nations, serving people should take precedence over the conflict.
• Bill S-4 is a measure that allows both self-government and fundamental justice, as it empowers band governments to enact and enforce matrimonial property rules. So, it respects indigenous rights of self-government while enforcing fundamental justice for on-reserve women. It also provides for federal, not provincial, jurisdiction, which is preferred by First Nations.
• The Frontier Centre conducted an informal survey of First Nations in Manitoba, Saskatchewan and Alberta about matrimonial property rights and found the majority supports equal division of assets in case of marital breakdown.
• First Nations should not view federal interim rules as a threat to self-government, as its jurisdiction is temporary and calls for indigenous communities to enact rules.
• First Nations should support Bill S-4 as a compromise and work immediately to create band-level laws on matrimonial property division.
• Another remedy is the First Nations Land Management Act (FNLMA), which requires participating First Nations to adopt matrimonial property laws. The FNLMA is also better economically for indigenous communities, as shown by a recent study.
• First Nations, however, should not hide behind FNLMA to avoid dealing with the full property ownership debate on reserves. The FNLMA is better but not as good as full property rights.
• Aboriginal organizations should deal with these matters immediately and not oppose Bill S-4 because it does not deal with housing issues or lack of shelters.

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