Vol. 147, No. 26 — December 18, 2013
SI/2013-128 December 18, 2013
FAMILY HOMES ON RESERVES AND MATRIMONIAL INTERESTS OR RIGHTS ACT
Order Fixing December 16, 2013 as the Day on which Certain Sections of the Act Come into Force
P.C. 2013-1325 December 5, 2013
His Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to subsection 56(1) of the Family Homes on Reserves and Matrimonial Interests or Rights Act, chapter 20 of the Statutes of Canada, 2013, fixes December 16, 2013 as the day on which sections 1 to 11 and 53 of that Act come into force.
(This note is not part of the Order.)
The Family Homes on Reserves and Matrimonial Interests or Rights Act (the Act) received Royal Assent on June 19, 2013. As per subsection 56(1) of the Act, “The provisions of this Act, except sections 12 to 52, 54 and 55, come into force on a day or days to be fixed by order of the Governor in Council.” The proposed date for the coming into force is December 16, 2013.
The objective of this submission is to establish December 16, 2013, as the day on which sections 1 to 11 and 53 of the Family Homes on Reserves and Matrimonial Interests or Rights Act will come into force.
In 1986, the Supreme Court of Canada, in Derrickson v. Derrickson, held that when a marriage breaks down on reserve, courts cannot apply provincial or territorial family laws to alter individual land interests recognized under the Indian Act since reserve lands fall under federal jurisdiction.
In addition, the Indian Act, which governs the administration of reserve lands and assets, is silent on the issue. As a result, many of the legal rights and remedies relating to matrimonial real property that are available off reserves during a relationship, on relationship breakdown, or on the death of a spouse or common-law partner were not available on reserves.
Before the legislation passed, the legal mechanisms to address on-reserve matrimonial real property included negotiated selfgovernment agreements involving the management of reserve lands, and First Nation laws under the First Nations Land Management Act. Under the First Nation Land Management Act, the requirement to develop a matrimonial real property law is ancillary to the development of a land code.
Of Canada’s approximately 600 First Nations with reserve land, only a few have matrimonial real property laws in place through these mechanisms, and most on-reserve residents remained, before the legislation passed, without matrimonial real property rights and remedies.
The Family Homes on Reserves and Matrimonial Interests or Rights Act received Royal Assent on June 19, 2013. The Act provides basic rights and protections to individuals on reserves similar to those off reserve, in the event of family violence, a relationship breakdown, and on the death of a spouse or common-law partner regarding the family home and other matrimonial interests or rights. The legislation also sets out provisions for the enactment of First Nation laws respecting on-reserve matrimonial real property, in addition to provisional federal rules to fill the legislative gap concerning matrimonial real property interests or rights on reserves.
Under the legislation, the federal provisional rules apply 12 months after the coming into force of the Act to First Nations that have not already ratified matrimonial real property laws under this legislation, the First Nations Land Management Act, or an applicable self-government agreement.
The federal law provides rights and protections for individuals in a conjugal relationship similar to those off reserve; for instance, it allows for emergency protection orders for temporary exclusive occupation of the family home in instances of family violence. While the federal rules are provisional, they account for the reality that some First Nations may not develop their own laws.
The implementation support for this Act has financial implications. It is anticipated that $11.8 million will be required over five years to provide implementation support for the legislation. Resources are required to administer and provide enforcement support for the federal legislation and to help First Nations to develop, ratify and implement their own laws.
This legislation was developed following a comprehensive consultation process which included collaboration with the Native Women’s Association of Canada (NWAC) and the Assembly of First Nations (AFN). The consultation process was facilitated by a ministerial representative, Wendy Grant-John, who recommended a legislative solution.
After undertaking nation-wide consultations and hearing from First Nation members, leaders, regional and national organizations, as well as the provinces and territories, the ministerial representative facilitated a consensus-building process. Some shared principles emerged as priorities and formed the basis of the legislation. These included agreement on the urgent need to remedy this situation, the need to balance individual rights and the collective rights of First Nation communities, and the need for Canada to be able to recognize First Nation laws over matrimonial real property.
Over the summer and early fall of 2007, the federal government shared a draft legislative proposal regarding on-reserve matrimonial real property and sought feedback from the AFN, the NWAC, the ministerial representative, the provinces and territories, and the First Nations Lands Advisory Board. All of those involved in the process were given opportunities to share their views and concerns. Their input and feedback resulted in significant improvements to the bill.
As a result, the legislation balances individual and collective rights and includes a substantive federal regime for matrimonial interests and rights as well as a mechanism for courts to apply First Nations’ community-specific matrimonial interests and rights laws.
For more information, please contact
Community Opportunities Branch
Lands and Economic Development
Aboriginal Affairs and Northern Development Canada