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New law sets out rules for divorces on reserves despite First Nations opposition

Health Minister Leona Aglukkaq.

Adrian Wyld/The Canadian Press

Ottawa is beefing up divorce and separation rights on reserves, passing a bill despite a long list of objections by First Nations groups.

Bill S-2, the Family Homes on Reserves and Matrimonial Interests or Rights Act, passed third reading in the House of Commons Tuesday after three similar bills had failed in recent years. It sets out rules for division of a couple's property in the case of a break-up, divorce or death on a reserve. It would also allow a provincial judge to issue an "emergency protection order," or restraining order, in cases of domestic violence.

Currently, such cases fall into a grey area between provincial law, which doesn't reach onto reserves, and the Indian Act, which doesn't address the issue. But the bill has proven divisive.

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The Conservative caucus relied heavily on female MPs to pitch the bill as a basic issue of gender equality. "We are making sure aboriginal women have the same rights as everyone else," said Candice Bergen, a Conservative MP from Manitoba.

Some critics, though, say the bill is too narrow in scope to tackle the complicated issue of marital rights on-reserve. For instance, lawyers and other justice officials are hard to come by in remote areas and the bill provides no financial support to boost access. Furthermore, homes on reserves are typically owned by the First Nation itself, not the resident, and often have many family members under the same roof, making splitting assets in case of divorce a complicated process.

Under Bill S-2, First Nations can now introduce their own laws related to what the government calls "matrimonial property" over the next 12 months. Some already have. Barring that, they'll be subject to the default federal rules.

The NDP and Liberals opposed the bill, as have other organizations who urged the government to take the time to complete a larger effort, one that might include a plan to implement the new rights, particularly in remote, thinly populated communities.

"There is a need for making sure we have something in place in our First Nations communities to make sure there is no legal vacuum in those situations – family violence, divorce, separation – that's for sure," said Michèle Audette, president of the Native Women's Association of Canada, which opposes the bill. "[But] there is no plan of action with funding attached to it."

Without funding or services, women or men at-risk after a separation or divorce will, in effect, have no way to access their newfound rights anyhow, she said. "...We have nothing [new in this bill]. They're just saying to the international community, the rest of Canada, that we are doing something."

The Assembly of First Nations has also raised "serious concerns" about the hill. Others have objected to the law as paternalistic, saying the government has no business on-reserve.

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"As a treaty person, I find it arrogant that Canada thinks it can draft a piece of legislation that dictates the division of marital property on reserve lands I live on," Janice Makokis, a Cree woman and Idle No More organizer, told a House of Commons committee deliberating the bill last month. "Nowhere in the treaties did we ever say we would give up our ability to govern ourselves and practise our own laws."

The federal NDP have echoed these critiques in debate, only to find themselves criticized by the Conservatives for opposing equal gender rights. "I find it very hard to believe that today I stand in this House as an aboriginal person debating the rights of aboriginal women and non-aboriginal women," Health Minister and Nunavut MP Leona Aglukkaq said during one debate.

The bill has some provincial, cross-partisan support. One of its previous versions was tabled by Brian Pallister, a former MP who now leads Manitoba's Progressive Conservative party. Manitoba is home to 140,975 First Nations people, second only to Ontario. Both Mr. Pallister's PCs and the governing NDP support the federal bill.

Mr. Pallister candidly testified saying he didn't know about the lack of laws affecting First Nations people after a divorce, until a woman came forward to him while he was an MP. "It's shocking... they sort of fall through the cracks, right, because provincial rules don't apply on-reserve and the Indian Act is silent on the issue," Mr. Pallister says.

He said consultations have been lengthy. "With the paralysis of analysis, we get thinking that we can't do anything because we can't do everything," Mr. Pallister said. "This is something we should do."

Manitoba's Deputy Premier and Minister of Aboriginal Affairs, Eric Robinson, backs the bill. A member of a Métis nation, Mr. Robinson acknowledged some don't support it. "But overall I think it's common sense, that the life-givers of our communities, of our First-Nations communities, are given the respect that they deserve," he said.

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The act passed third reading Tuesday by a vote of 149 to 125. It has already gone through the Senate, and now needs only Royal Assent to become law.

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About the Author
Parliamentary reporter

Josh is a parliamentary reporter in Ottawa. Before moving to the nation's capital in 2013, he covered provincial affairs in Edmonton and throughout Alberta. He joined the Globe in 2008 in Toronto before returning to his home province in 2010. More

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