Supreme Court of Canada –  1 S.C.R. 285
This case was delivered on the same day as Paul v. Paul. It reached its denouement in June of 2013.
The Court refused to apply a provincial law about the division of assets applicable to matrimonial property on reserve, covered by the federal Indian Act which didn’t contain dispositions about equitable division of assets.
After the creation of numerous committees and reports, it was not before June 2013 that a bill was passed to fill this legal void. The new bill is however criticized by many as a paternalistic act imposed on Indians by the government.
Are the dispositions of the Family Relations Act of British Columbia concerning the division of assets applicable to property situated on an Indian reserve? If not, can they still be applied by reference under section 88 of the Indian Act?
No, the dispositions of the provincial law concerning the division of assets do not apply on reserve (unanimous decision).
Between: Rose Derrickson
And: William Joseph Derrickson
Interveners: Canada, British Columbia and Ontario
In 1984, Rose Derrickson, member of the Westbank Indian Band of British Columbia and residing on the reserve, petitioned her husband William Derrickson, also a member and resident of the Westbank Band, for divorce.
In her petition, she asked for the division of the family assets, which included a Certificate of Possession for a residence on the reserve, under the Family Relations Act, a provincial statute. The Indian Act contained no such legal regime.
Rose Derrickson: The pith and substance of the Family Relations Act is the division of matrimonial property, which falls under provincial jurisdiction, and not the use of Indian lands, which is under the exclusive legislative authority of Parliament. The Family Relations Act does not step into the exclusive federal jurisdiction over the use of Indian lands.
William Derrickson: Under the definition of family assets in the Family Relations Act, his wife’s claim concerned lands reserved for the Indians, which falls under the exclusive jurisdiction of Parliament, and therefore the Family Relations Act cannot be applied to the assets situated on an Indian reserve because this would interfere with the ability of the Band (and the Crown) to ensure that reserve lands are strictly used for the members’ benefit. Also, the Act cannot be incorporated into federal legislation because section 88 concerns Aboriginal people as individuals only.
British Columbia and Ontario: They supported the arguments of Rose Derrickson. Ontario defended the idea that section 88 can be applied to Indian lands.
Canada: Supports William Derrickson by arguing that the Family Relations Act’s pith and substance concerns the beneficial use of former family assets and does not determine who owns them. For a person to be able to possess a Certificate of Possession issued by a Band, the person must be a member of the Band, under the Indian Act. The provisions of the Family Relations Act concerning the possession of family assets are in direct conflict with the rules of attribution found in the Indian Act.
Supreme Court of British Columbia (1984): The interests in property were situated on reserve land. The Indian Act prohibited the division of property and did not provide for compensation for adjusting the division in favour of Rose Derrickson. Hence, the application was rejected.
British Columbia Court of Appeal (1984): The wife could not be given an interest in the properties situated on lands reserved for the Indians. Section 88 of the Indian Act could not incorporate the Family Relations Act because it is valid only in the case of Aboriginal people and not their lands. However, the court issued an order for compensation for the purpose of adjusting the division of family assets between the spouses.
Dickson, Beetz, McIntyre, Chouinard, Lamer, Le Dain, La Forest
The provisions of the Family Relations Act with regard to property cannot apply to reserve lands. The provincial legislation (Family Relations Act) conflicted with the federal legislation (Indian Act). Parliament holds the exclusive legislative power over the right of possession of lands on an Indian reserve, and the provisions of the Family Relations Act concerning ownership and possession of what was once family property cannot be applied to possessions situated on reserve lands. Since the Family Relations Act interferes with a federal subject of legislation, it has to be read down in order to limit it to matters of provincial jurisdiction only.
Since section 88 of the Indian Act concerns Aboriginal people as individuals and not the lands reserved for their usage, the Family Relations Act cannot be incorporated into federal legislation. Even if the Family Relations Act fell into one of the exceptions in section 88, the doctrine of federal paramountcy would still exclude it because the provisions would be in direct conflict with federal legislation already enacted.
As for the compensation, the Court affirmed that the Family Relations Act provides for compensation for the purpose of adjusting the division of family assets between the spouses where division of property is not possible. The Court saw no contradiction between such compensation and the Indian Act and thus allowed it for Rose Derrickson’s sake.
As a result of the decision, an Aboriginal woman living on a reserve was precluded from filing an application under provincial statutes for possession or occupation of the family home in the event of the breakdown of the marriage or in cases of spousal abuse.
Thus, Aboriginal women found themselves in a vacuum since there were no federal provisions dealing with this situation. Aboriginal women were excluded from the application of the principle of marital equality that prevails everywhere in Canada. Since the late 1970s, most provinces had enacted legislation to protect matrimonial real property in the case of a divorce or separation. These laws established a regime to ensure that each spouse would receive an equal share in their matrimonial real property when their union dissolved. Since Derrickson and Paul had determined that these laws could not be applied to Aboriginal people residing on reserves, Aboriginal women living on reserves found themselves in a far worse situation than those not living on reserves (Grant-John, 2007).
Remedies in the Indian Act are practically unavailable to Aboriginal women since they normally do not hold the Certificate of Possession of the family residence (these are traditionally attributed to men). This created a situation which was at odds with both the customs of many tribes and Canadian family law, and the Canadian justice system was exposed as a colonial regime (Turpel, 1991).
Royal Commission on Aboriginal Peoples
In 1991, the Mulroney government created the Royal Commission on Aboriginal Peoples (RCAP) in order to study the relations between Aboriginal and non-Aboriginal people living in Canada. One of its mandates was to come up with solutions to deal with social, cultural and economic problems faced by Aboriginal communities. Also, a governmental study, a report from Manitoba for its Aboriginal Justice Implementation Commission, The Justice System and Aboriginal People, recommended that the federal government amend the Indian Act to ensure an equal division of family assets (including property situated on a reserve) for Aboriginal women. For Manitoba’s Aboriginal leaders, the Commission recommended that they break their silence over this issue and encouraged them to support programs to help Aboriginal women and children during divorce procedures (AJIC, 1991).
In 1996, after hearing more than a thousand testimonies, the RCAP published its final report. In the fourth volume, Perspectives and Realities, the RCAP wrote about the problems facing Aboriginal women, including issues related to matrimonial real property. One of its recommendations was to create Nation based and run family law committees, with the participation of Aboriginal women, to study family members’ interests in matrimonial real property, the division of family assets in the case of a separation or divorce and the obligations concerning alimony. These committees would later come up with solutions to these problems by taking into account the Indian Act and the distinctiveness of Aboriginal communities before implementing the solutions (RCAP, 1996).
In 1998, a report by the United Nations Committee on Economic, Social and Cultural Rights communicated the Committee’s distress with Canada’s lack of success in ensuring equal protection before the law for Aboriginal women (as opposed to non-Aboriginal women) in respect to matrimonial real property (INAC, 2008).
In the same year, attempts to assist First Nations in the development of land and property management led to the First Nations Land Management Act (FNLMA). This Act requires First Nations to adopt a land code that would replace the dispositions of the Indian Act concerning property and possessions on reserve lands. The code is to be adopted only after consultations have been held in the community and after a referendum has been held in which at least 25% of band members have participated. For the code to be valid, it must address the issue of matrimonial real property. The rules and procedures concerning the use and possession of reserve lands after the dissolution of a marriage must be non-discriminatory on the basis of gender. The code can also reflect the Nation’s customs (Greene, 2003). However, its detractors believe that it is improbable that the FNLMA will have an impact on the existing gaps in the rules and procedures relating to the division of matrimonial real property on reserves, despite the Act’s requirement that such provisions be implemented (Abbott, 2003). According to 2009 data, few Nations (20 of the 600 Nations in Canada, with 11 having adopted a code) have decided to opt into the Land Management Act (INAC, 2009a).
In 2001, INAC commissioned Marvis Erickson, a British Columbia lawyer and the Tribal Chief of the Carrier Sekani Tribal Council, to prepare a special report concerning the division of matrimonial real property on reserve. The report focused on the experiences and outcomes for Aboriginal women and their children who had to leave their reserve homes upon marital breakdown. The report highlighted the need for a new model that moved away from one that centred on the consequences of changing the current matrimonial real property regime (INAC, 2009a).
Between 2002 and 2004, INAC held focus groups and discussion sessions across Canada in order to more accurately depict the existing situation on reserves. A report by Wendy Cornet, entitled Discussion Paper: Matrimonial Real Property on Reserve, was released in November 2002. The aim of this research was to build on the contributions of others in understanding this complex issue and to focus on key legal issues affecting on-reserve matrimonial real property and the policy context. A plain-language document, entitled After marriage breakdown: Information on the on-reserve matrimonial home, was released in 2003 and has been widely distributed across the country. This document is based on Cornet’s research and is aimed at creating awareness of, and providing information on, the matrimonial real property issue on a community level. INAC also funded a study on the socioeconomic effects of divorce on urban Aboriginal women and their children. Most were forced to leave the reserve upon dissolution of the union because the Certificate of Possession for the family residence is usually issued to the man. The report documented real-life experiences, and the participants also gave their recommendations on ways to improve the situation of newly divorced or separated Aboriginal women and their children, such as better domestic violence prevention, awareness programs in the communities concerning the consequences of a divorce on matrimonial real property, a non-discriminatory housing policy by band councils and access to counselling and support (Abbott, 2003).
INAC also reviewed various marital-dispute resolution mechanisms by surveying the different residency rights on reserves depending on different situations (band membership, status, marriage, common-law relationship) and also by comparing the regime in place with those in communities with self-government accords, those under the FNLMA, those where there are still customary marriages and regimes that refer to Aboriginal Customary Law (Greene, 2003). It also studied the impact of the division of assets in divorce procedures on American Indian reserves by commissioning a study by the Harvard Project on American Indian Economic Development in order to compare it with the mechanisms in place in Canada (Flies-Away, Garrow and Jorgensen, 2003). It is important to note that First Nations in the United States have mostly adopted legislation concerning the protection of the family residence situated on a reserve, the division of family assets, alimony and children’s custody. Some have adopted their own codes and others simply referred to state legislation already in place. By doing so, they now have family laws that best suit their needs and values without any interference from state government (Blanchette and Morin, 2004).
In 2006, INAC announced a country-wide consultation on the issue of matrimonial real property and the impendent arrival of new measures to better protect Aboriginal women and children. Wendy Grant-John was appointed Ministerial Representative and worked with representatives of the AFN and the Native Women’s Association of Canada. The following year, she published the result of the consultations, a report that was more than 500 pages long.
In 2003, the Standing Senate Committee on Human Rights initiated a short-term review of the main legal concerns relating to on-reserve matrimonial real property in divorce proceedings or a breakdown of a common-law relationship. The Committee issued an interim report in November 2003, called A Hard Bed to Lie In: Matrimonial Real Property on Reserve. Their preliminary conclusions were to the effect that the provisions of the Indian Act concerning matrimonial real property discriminated against Aboriginal women and were incompatible with the Canadian Charter of Rights and Freedoms. The Committee mainly recommended an amendment to the Indian Act giving each community the right to adopt rules and procedures for the division of assets tailored to their needs and in harmony with their traditions, but giving Aboriginal women the same minimal protection that the provincial legislation in place provides to those not residing on a reserve (Standing Senate Committee on Human Rights, 2003).
In 2005, the Senate Committee denounced the fact that the House of Commons wanted to ask its Standing Committee on Aboriginal Affairs and Northern Development for another study of the issue. It stressed that what was required were concrete actions by INAC and not further analysis of the situation. It then ceased its activities on the subject and never published the final report (Standing Senate Committee on Human Rights, 2005). INAC held preliminary consultations with the Native Women’s Association of Canada and the AFN and both organizations collaborated on this issue (INAC, 2009a).
In 2009, Bill C-8, the Family Homes on Reserves and Matrimonial Interests or Rights Act was introduced in Parliament. It would have enabled First Nations to enact their own matrimonial real property laws and to put in place a series of measures during the transition from the provisions of the Indian Act to those laws. It will provide minimal protection, such as equal rights to occupancy of the family residence, the requirement of spousal consent for disposing of the residence, an emergency occupation order in the case of domestic violence, an exclusive occupation order for the parent who has custody of the minor children, the equal division of family assets if situated on the reserve, the transfer of matrimonial interests between spouses, entitlement for the surviving spouse in the case of the death of the owner of the Certificate of Possession and the enforcement of agreements reached out of courts by spouses (INAC, 2009b).
Quebec Native Women and the AFN released statements of opposition to Bill C-8 because these organizations felt that the Bill was adopted unilaterally and imposed legislation on First Nations concerning their rights instead of giving them the opportunity to legislate on the matter. Quebec Native Women also regretted that the Bill was not accompanied by new measures to fight poverty and domestic violence, which affect Aboriginal women and children in Canada more than any other group (FAQ, 2009).
In 2011, Senator Marjory LeBreton, Leader of the Government in the Senate, reintroduced the Family Homes on Reserves and Matrimonial Interests Act since the 2009 version had received a negative vote in the House of Commons in May 2009 after its first reading (Parliament of Canada, 2009). The Family Homes on Reserves and Matrimonial Interests or Rights Act received royal sanction on June 19th, 2013.
Aboriginal interest groups
Aboriginal interest groups had different opinions on the issue. For the AFN and its provincial counterparts, Parliament should not legislate on a subject concerning First Nations without their consent. Members of First Nations want the federal government to recognize their inherent right to self-government and want jurisdiction over family law, land management, justice administration and human rights (INAC, 2009a). For women’s groups, resolving this issue is an urgent matter since it is closely related to domestic violence towards women and children and systemic poverty, problems aggravated by little access to resources for Aboriginal women living on reserves. They feel that the federal government has a responsibility to guarantee Aboriginal women on reserves the same access to property that women, Aboriginal or not, living off reserves have (Greene, 2003). The Native Women’s Association of Canada supported the idea of federal legislation on the subject (INAC, 2009a). Quebec Native Women wanted the federal government to use its legislative power to implement temporary measures to protect women in these situations while reconciling the discrepancies between the different Aboriginal communities. For this organization, the ideal solution for the division of matrimonial real property would be implemented within an extra-judicial process based on Aboriginal legal traditions and not be a mechanism elaborated within the scope of the Indian Act (Rock and Wallace, 2004).
Paul v. Paul,  1 S.C.R. 306
Bill C-8, 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. 2nd Sess., 40th Parl., 2009.
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