Library Boy: Library of Parliament Legislative Summary of Bill on Family Homes on Reserves

The Library of Parliament recently published a legislative summary of Bill S-2: Family Homes on Reserves and Matrimonial Interests or Rights Act:

"The bill was first introduced as Bill C-47 during the 2^nd Session of the 39^th Parliament. Bill C-47 died on the Order Paper when Parliament was dissolved on 7 September 2008. It was reintroduced as Bill C-8 during the 2^nd Session of the 40^th Parliament, but it died on the Order Paper once again when Parliament was prorogued on 30 December 2009. It was introduced a third time as Bill S-4 during the 3^rd Session of the 40^th Parliament, and was considered by the Standing Senate Committee on Human Rights in May and June 2010. Bill S-4 was passed by the Senate on 6 July 2010, and was introduced in the House of Commons on 22 September 2010 by then Minister of Indian Affairs and Northern Development, the Honourable John Duncan. Bill S-4, however, died on the Order Paper when Parliament was dissolved on 26 March 2011."

"Bill S-2 addresses issues relating to family real property on reserves by providing that a First Nation has the power to enact laws relating to 'the use, occupation and possession of family homes on its reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on its reserves' (clause 7(1)). The federal provisional rules in the bill will apply until a First Nation has such laws in force. The rules will apply to a First Nation under the First Nations Land Management Act in specific circumstances. First Nations that have the power to manage their reserve lands under a self-government agreement may opt to have the federal rules apply to them (...)"

"When married couples divorce, the division of matrimonial property, both real (e.g., land and houses) and personal is determined in accordance with provincial laws, as a result of subsection 92(13) of the Constitution Act, 1867. However, as a result of subsection 91(24) of that Act, which specifies that the Parliament of Canada has exclusive legislative authority with respect to 'Indians and Lands reserved for the Indians,' provincial laws do not apply to the division of real property on reserve lands. In Derrickson v. Derrickson, the Supreme Court of Canada stated that courts cannot rely on provincial law to order the division of matrimonial real property on reserves."

"The historical absence of provisions in the federal Indian Act or elsewhere governing the division of matrimonial real property on reserves has resulted in what is often referred to as a legislative gap. Consequently, people residing on reserves have not been able to use the Canadian legal system to resolve matters concerning the division of real property after the breakdown of conjugal relationships."

"Numerous domestic and international reports have referred to the matter, including reports from the United Nations. All have recommended that Canada take steps to resolve the issue."