Divorce Granted, Justice Denied

Media Appearances, Poverty, Frontier Centre

When couples separate or divorce in Canada, family law generally ensures that assets are divided fairly between the parties. When the application of these laws results in unjust outcomes, or a dispute arises, parties can ask a provincial court to intervene.

That is, unless they are aboriginals who live on reserves. First Nations lands lie within the federal government’s jurisdiction. This means that provincial laws ensuring equal division of property in case of marital breakup do not apply.

Naturally, First Nations oppose any type of federal control over property rights — in the same way that they reflexively oppose any checks and balances on their finances. The result is a legal vacuum that impoverishes one of the most vulnerable groups in Canadian society: aboriginal women.

For years, native women’s groups have brought forward cases of aboriginal spouses and ex-spouses who have been discriminated against following a marital breakdown, often losing the right to remain in the family home. On reserves, decisions about who is permitted to remain inside a family residence typically are made by male-dominated band councils.

This state of affairs persists because — following on the Sovietstyle economic organization of reserves — the homes are not owned by the feuding parties. Indeed, the Indian Act itself denies aboriginal Canadians the right to own real property on reserves. Instead, reserves operate on a system of "allotment," whereby band councils grant individuals the right to use and occupy reserve land. With the stroke of a pen, an ex-wife can be thrown out of her house — and, in some cases, effectively thrown out of the reserve. This sort of thing would be considered a scandal if it happened in Toronto or Vancouver or Moose Jaw, but it happens all the time on reserves.

There is a bill before the House of Commons that would be a first step to ending discrimination against divorcing couples on reserve. Bill S-4, the Family Homes on Reserves and Matrimonial Interests or Rights Act, passed the Senate in July 2010. It affirms First Nation authority on the issue of marital property, but would enforce federal laws on an interim basis until First Nations develop their own. These legal regimes would be subject to approval by band members, not just councillors.

Rank-and-file members of First Nations appear ready for change. On Jan. 21, 2011, the Frontier Centre, a Winnipegbased think-tank, published the results of a poll of more than 1,000 First Nation respondents from 78 prairie bands. Seventyseven percent of those surveyed supported an equal division of property between the partners in dissolving relationships.

While Bill S-4 addresses one important piece of the puzzle, there are many more obstacles to the equal treatment of women in First Nations societies.

Until 1985, women who married non-native spouses were stripped of their Indian status, as were their children. While the Indian Act was amended to allow "reinstatement" of these women 25 years ago, many still faced hurdles in regaining their status, as well as that of their children. The federal government has attempted to remedy the situation with Bill C-3, the Gender Equity in Indian Registration Act, which grants status to these women’s grandchildren. (Children and grandchildren of First Nations men who married non-native women were never denied status.) It received royal assent on Dec. 15, 2010.

In general, Parliament’s record on this file is very spotty. For many years, the Canadian Human Rights Act (CHRA), for instance, was permitted to sit on the books with language specifying that "Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act" — effectively turning the nation’s reserves into human-rights-free zones. Even when Stephen Harper’s Conservative government moved to closed this loophole, opposition parties bristled at the move, echoing cynical native chiefs’ demands for "more time" to bring their institutions in line with baseline human-rights expectations.

Much remains to be done to bring equality to women on Canada’s reserves. These two pieces of legislation are a good beginning, and our MPs should ensure that S-4 becomes law as quickly as possible.