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Bill S-2 - Family Homes on Reserves: Protection or threat?

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On Wednesday, September 28, 2011, Minister John Duncan introduced Bill S-2 An Act Respecting Family Homes Situated on First Nation Reserves and Matrimonial Interests or Rights in or to Structures and Lands Situated on Those Reserves in the Senate where it had its First Reading. The short name for this proposed legislation is Family Homes on Reserves and Matrimonial Interests or Rights Act. The full text can be found here.

As some of you may recall, this is the fourth attempt at passing federal legislation that would address what Indian and Northern Affairs Canada (INAC) is referring to as a 'legislative gap' in relation to how property gets divided upon the break up of a common law relationship or marriage. The previous bills, Bill C-8, Bill C-47 and Bill S-4 all died on the order paper, but not before Aboriginal organizations, First Nations, Indigenous women and other groups like family law lawyers and the Canadian Bar Association all unanimously testified against the bills.

Now, with a majority government, the Harper Conservatives plan to ram this legislation through Parliament against our will. INAC has again introduced this legislation without engaging in formal legal consultations with those First Nations whose constitutionally protected Aboriginal and Treaty rights may be negatively impacted. Given that this is national legislation that will apply to all First Nations and given that reserve lands are protected in the Indian Act, the Constitution Act, 1982, and various Treaties, land claims and self-government agreements, there is no doubt that this legislation requires formal legal consultation as envisioned in the Guerin, Delgamuukw, Haida, Taku and Mikisew decisions of the Supreme Court of Canada.

The majority of my concerns in relation to this legislation were explained in earlier blogs in relation to the previous Bill S-4 by the same name. My previous blogs were entitled:

Bill S-4: An Empty Shell of a Legislative Promise

Bill S-4: Backdoor Assimilation and Land Grab

Bill S-4: A Step Back in Time

Letter to editor of Globe & Mail re Bill S-4

In these previous blogs, I explained the history, the development of the bill, my main concerns with it and my recommendations to amend it. These are the same concerns I brought forward when I testified as an independent expert witness before the Senate Standing Committee on Human Rights on June 7, 2010 in relation to Bill S-4. I am not sure if I will be called again to testify in relation to this 'new' bill, but I hope so. Read my official submission to the Senate Standing Committee on Human Rights in relation to Bill S-4.

I have read through the new bill in its entirety and while some amendments have been made, the core essence has remained and will have a significant impact not only on the nature and legal status of reserve lands generally, but specifically in relation to who can hold, occupy, use and benefit from reserve lands. Given that most First Nations have medium to high rates of out-marriage (marriages to non-Indians), the exclusive 'benefit' of reserve lands to which Indians are entitled could be significantly reduced, if not completely eliminated in some First Nations.

If there is any right of First Nations men, women and children that demands full and informed consultation, accommodation and consent, is that of their constitutionally and now internationally protected rights in their own reserve lands. The current lack of consultation is criminal and any attempt to pass this legislation will not only breach our treaties, land claims and self-government agreements, but will create an additional significant and substantial harm to Indigenous women who have only asked for justice -- not a loss of their collective Aboriginal rights.

If Tom Flanagan's and Manny Jules' plan to privatize reserves does not eliminate our reserves, this bill surely will. Stand up, make your voice heard and protect what little land we have left for our future generations!

Visit Pamela Palmater's blog Indigenous Nationhood.

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