What we heard about the implementation of the Family Homes on Reserves and Matrimonial Interests or Rights Act

Participants

There were 30 participants at the Wendake, Quebec engagement session representing First Nations in Quebec.

Awareness and training

Participants felt that building greater awareness is key in successful implementation of the Family home on Reserves and Matrimonial Interests or Rights Act (the act) and community-specific matrimonial real property laws. They felt that a lack of knowledge in communities and among those responsible for administration and enforcement was a significant barrier to individuals accessing their matrimonial real property rights and protections.

To address this, participants recommended that additional resources be provided to individual First Nations to conduct their own community-level awareness activities. They noted that scenario-based training would help explain intricacies of the act and make information more accessible and relevant to community members. Similar recommendations were made for those First Nations with community-specific laws.

Enacting a community-specific law

To support reconciliation and self-determination priorities, participants stressed the importance of establishing community-specific matrimonial real property laws. While First Nations law-making powers are currently provided for under the act, participants found that lawyers are often unfamiliar with indigenous culture and could benefit from training to support them to incorporate culturally-relevant features into their laws.

Law-development and enactment was reported to require significant financial support, for which current budgets were unable to cover. Many First Nations noted that the technical nature of law development required them to solicit legal expertise.

Further, the act requires community laws to be ratified by a threshold of 25 percent of eligible voters living both on and off reserve. Participants reported that adhering to this ratification requirement was also costly. Locating and engaging off-reserve membership presented a considerable challenge in meeting the participation threshold.

To address these issues, participants recommended:

• provide financial resources to individual First Nations to support community law development and ratification processes (for example, mail-outs, electronic voting)
• lowering the ratification threshold required by the act
• provide financial resources and assistance to First Nations to maintain up to date contact information for membership
• recognize traditional processes to ratify community laws

Implementing the act

The issue of matrimonial real property affects many aspects of First Nations programming and operational processes. As a result, First Nations delegates identified issues stemming from contradictions between the act, community specific laws, traditional practices and other laws or policies established prior to the act (for example, land registration, housing, administration of wills and estates). Other socio-economic issues such as, housing shortages were seen to further exacerbate these issues. Participants also highlighted gaps in the survey parcel fabric and differences in valuation of properties on reserves as obstacles to resolving matrimonial interests in the event of a death or breakdown in a relationship.

To address these issues, participants recommended the following:

• provide additional funding to First Nations to support the revision of band-level policies to be consistent with rights and protections in the act
• surveys on reserve and property appraisals reflect housing market differences between on and off reserve
• hold estate planning workshops and template agreements such as wills available as a tool to inform members of their rights and provide mechanisms to protect their interests

Enforcing the act

In Quebec, the rights of common-law spouses with respect to matrimonial real property vary considerably under the act versus Quebec civil law. This has resulted in some uncertainty of the application of the act on reserve in the Province of Quebec. As a result, some participants questioned whether it was worthwhile to participate in training or proceed to develop their own community-specific laws.

Considerable discussion was held around a provincial court decision involving members of Wendake First Nation in Quebec. In reviewing the decision, participants highlighted errors in the judge's ruling and their application of the act. Wendake First Nation participants noted how the act stipulates the right of a First Nations Council to make representation before the court, prior to rendering a decision on the division of reserve structures and lands. Wendake First Nation wasn't afforded this opportunity and the judge's ruling had impacts for the band as the home in question was band-owned.

To address these issues participants recommended:

• increased access to legal support for First Nations
• enhanced training for members of the judiciary to ensure they fully understand and apply the act
• outreach to provinces and territories to facilitate the designation of judges to issue emergency protection orders provided for under the act
• funding to First Nations to establish and maintain traditional dispute resolution mechanisms, mediation or arbitration

Other features that could be added to the implementation of the act

Participants also suggested new features to support effective implementation of the provisional federal rules:

• increase the automatic 180 day occupancy right following the death of a spouse or common-law partner
• recognize traditional marriages such as long house and blanket ceremony in the definition of spouse within the federal provisional rules. For example, remove the requirement of a marriage certificate
• provide greater assistance to victims of violence for those who are displaced as a result of emergency protection orders or exclusive occupation orders (for example, emergency housing or shelters)

Participants

There were 26 participants at the engagement session in Calgary, Alberta, representing First Nations from Alberta, British Columbia and Saskatchewan.

Awareness and training

Throughout the session, participants spoke to the need for greater training and awareness in First Nation communities, and among frontline service workers, members of the judiciary, and law enforcement.

To address these issues, participants recommended:

• in addition to online training options, in-person training sessions be provided to law enforcement officers and court administrators in the application of the Family home on Reserves and Matrimonial Interests or Rights Act (the act)
• increase awareness of the act among National Indigenous Organizations, provincial human rights organizations, and the associated support services available to First Nation communities
• resources for First Nations to engage and develop relationships with policing organizations
• additional conferences or workshops for First Nations technicians and leadership to learn about the act and network around best practices to support implementation
• additional capacity building and financial resources for communities to undertake awareness activities, for example:
  • dedicated position or community-member to champion matrimonial real property issues and application in the community
  • develop materials in a variety of formats (such as fact sheets, pamphlets, radio announcements, videos, etc.,) that are targeted to serve specific needs of youth and elderly
  • develop template for pre- and postnuptial agreements and other domestic contracts to support legal awareness for new couples
  • develop information on the act for inclusion in the school curriculum
  • 1-800 number that individuals can contact to get information on their matrimonial real property rights and protections

Enacting a community-specific law

Participants highlighted the fact that no funding was provided to First Nations for implementation of the act or First Nations law development. While Indigenous and Northern Affairs Canada (INAC) was able to identify some funding through internal reallocations for pilot projects, it was seen to be insufficient and short term. Participants further reiterated challenges with the engagement of off-reserve membership as the act requires 25 % of eligible voters living on or off reserve for the ratification vote. Frustrations were also voiced in relation to the voting age prescribed in the act (18+) being inconsistent and inflexible to accommodate those established in communities (varying from 16 to 21).

To address these issues participants recommended:

• provide adequate funding to individual First Nations to cover the development and implementation of a law
• provide funding for workshops etc., where First Nations can share best practices in law making and implementation
• support integration of cultural and traditional processes in First Nations law ratification (for example, allow First Nations to use their traditional or community-developed legislative and ratification processes to enact their laws)
• consider using university students to support First Nations law development processes

Implementing the act

Participants reported several challenges in implementing the provisional federal rules in their communities. Examples included:

• a lack of dedicated resources to implement and administer the act
• inconsistencies between the act and other band policies and laws
• availability of shelters for those seeking protections under emergency protection orders
• challenge of access to housing appraisers who are knowledgeable of the on reserve housing market versus the off reserve, so as to facilitate matrimonial real property settlements

To address these challenges, participants recommended:

• funding to support translation of the act and community-specific laws into Indigenous languages
• greater clarity with respect to the application of the act to custom allotted lands and band-owned homes
• funding for emergency shelters and supports
• development of a property assessment process that better reflects the on-reserve housing market and processes for custom allocations
• consolidate and simplify departmental forms now required because of the act

Enforcing the act

Engagement participants spoke to challenges and obstacles in enforcing the act, including lack of access to justice, lack of resources for the First Nation to make representation in court and lengthy law-enforcement response times. These issues presented even greater challenges for delegates representing remote First Nations.

To address these challenges, participants recommended:

• funding for First Nations to represent the interests of the band when matrimonial real property applications are heard in court and carry implications for the community
• additional supports reflecting the needs and realities of remote First Nations (for example an alternative dispute resolution tribunal or justice circle that travels and serves a grouping of remote communities)
• increased funding for preventative services (for example, mediation) and restorative justice services
• respond to gaps in designation of provincial superior court judges by:
  • permitting Justices of the Peace to hear applications for emergency protection orders
  • facilitating the use of an alternate or traditional dispute mechanisms

Other features to improve implementation

Participants offered suggestions for other features or measures that could improve the implementation of the provisional federal rules, including:

• undertaking measures to address root causes of conflicts and prevent issues from arising in the first place (for example, increased investments in Family Violence Prevention programming)
• consider the context of multi-family and multi-generational households in the act

Participants

There were 34 participants at the engagement session in Toronto, Ontario, representing First Nations from Ontario and Manitoba.

Awareness and training

Lack of awareness of the Family home on Reserves and Matrimonial Interests or Rights Act (the act) emerged as a prominent point at this session with many participants voicing frustrations in the knowledge gap among lawyers, judges, police officers and other frontline service workers.

To address these issues, participants recommended:

• on-going and mandatory training for members of law-enforcement and legal communities
• on-going training and awareness for band support staff, frontline service workers (for example, child welfare officers, health care, housing and social service providers) to ensure continuity when staff changes
• 1-800 number for individuals to obtain information on rights and protections under the act
• resources to assist families in obtaining information about the act and its application (such as community newspaper or website)
• include course materials and scenario-based training on matrimonial real property in the First Nations' high school curriculum
• develop a template for domestic contracts and prenuptial agreements to facilitate proactive measures and a greater understanding of matrimonial rights and obligations at the onset of a relationship

Enacting a community-specific law

Throughout the session participant highlighted challenges in the law-development and ratification process including financial pressures, voter thresholds and membership engagement. Participants voiced frustration over law-making requirements that were not aligned to First Nations constitution or legislative processes. Participants stressed that enacting a community-law development was only the beginning of the work with many steps remaining to support implementation. First Nations saw a need for additional and ongoing resources to support awareness activities, responding to inquiries, partnership development, and the review, update and harmonization of laws and policies.

To address these challenges, participants recommended:

• financial support for First Nations law-development, ratification and implementation activities (for example, awareness activities, inclusion in school curriculum and amendment of laws and policies to align with the community-specific law)
• investments in modern tools to consult and engage with their membership (for example, e-voting and live streaming)
• adoption of a case management approach within INAC regional offices to support First Nations with document processes (for example the ministerial loan guarantee process)
• amend the voting requirements in the act to lower the participation threshold, change eligible voters to be only those living on reserve and allow First Nations to use custom election codes and established constitutions
• incorporate greater flexibility in the administration of departmental membership to remove deceased individuals from membership lists to reduce the impact on voter thresholds

Implementing the act

Participants stressed the extensive impact of the act on their day-to-day work, extending to social, housing and membership programs and policies. Timelines required to complete basic forms was also noted as a considerable pressures on band support staff. Differences in the appraisals of houses on reserve also creates complications for band staff and community members seeking to buy or sell matrimonial homes or when it comes to division of property. Participants also noted that they require greater authority over decisions relating to child custody to support their ability to address issues in their community.

To address these issues, participants recommended:

• financial support to hire and retain a community-level matrimonial real property champion
• create a committee with representatives from health and social programs, police, chief and council, Elders and youth groups to provide recommendations when disputes arise
• identify programs and policies to be clarified and aligned with the act or a community-law
• consolidate INAC's forms and streamline the required timelines
• review lands registration process to ensure only transactions completed after the coming into force of the act are subject to spousal consent
• create a plain language document outlining the application of the act and explaining rights and protections under the act
• develop templates that guide individuals through the process of applying for emergency protection orders and exclusive occupation orders
• provide clarification of chief and council roles in administering the act
• support development of appraisal processes that reflect the true market value of on-reserve lands and houses
• work with knowledge keepers, consultants and historians to translate traditional custom allotments into legal terms
• designate emergency homes or shelters with surge capacity (for example, allowances to pay for hotel rooms and basic needs) for those seeking emergency remedies under the act
• apply principles akin to Jordan's Principle (that is, issues are resolved by the organization that is approached first, rather than debating which organization has jurisdiction)

Enforcing the act

Engagement participants voiced frustrations with the lack of knowledge and awareness among law enforcement and legal practitioners on the application of the act. They indicated that this knowledge also needed to be extended to frontline workers who support legal and court processes. Participants also noted that members of the judiciary are not familiar with their communities or values and would like to see more First Nations people represented in these positions. They also found the lack of case-law currently available on the act to be challenging when seeking legal advice.

To address these issues, participants recommended:

• develop a list of lawyers who are trained on the act for community distribution
• establish standardized enforcement protocols for peace officers and the courts
• provide funding for First Nations to develop agreements with policing entities to facilitate enforcement of community-specific laws
• permit justices of the peace to issue emergency protection orders
• provide ongoing funding to establish an alternative dispute resolution team that can provide advice and mediation services for matrimonial real property disputes similar to provincial programs (for example, family circles, justice circles and First Nation courts)
• continue to communicate the importance for provinces and territories to designate judges for emergency protection orders

Participants

There were 26 participants at the engagement session in Halifax, Nova Scotia, representing First Nations from Nova Scotia, Prince Edward Island, and New Brunswick.

Awareness and training

Participants commended the work of the centre of excellence and stressed the importance of continuous training for community members, leadership, and frontline workers. Some expressed the difficulty in engaging members and discussed educational solutions that would target specific groups, including youth, chiefs, Elders, etc.

Participants recommended the following:

• include matrimonial real property awareness in the school curriculum
• target a greater audience by creating a cellphone application with an online chat platform to assist and guide people. This could be complimented by an 1-800 number
• use social media platforms to disseminate information about the Family home on Reserves and Matrimonial Interests or Rights Act (the act)
• have the centre of excellence make presentations to chiefs during national meetings
• complement online training for enforcement officers with mandatory scenario-based toolkit training

Enacting a community-specific law

Participants reported that funding, time and resources are major factors to consider when enacting and implementing a law. Technicians working in the band office often wear many hats and are juggling competing priorities, making it hard to find time to undertake this work. First Nations delegates reiterated the difficulty in engaging off-reserve members to meet the voting threshold especially for communities with a greater population living off reserve than on reserve.

Some early adopters with matrimonial real property laws in place are approaching the review period prescribed in their laws and stressed the importance of accessing funding to support these activities.

Participants raised concerns with the liability they hold when they enact their own law; if challenged, the band would have to assume the costs of representation to court. However the Government of Canada would bear the costs if the challenge was on the provisional federal rules. Participants said this is a big consideration when enacting the law.

To address these challenges, participants recommended:

• funding to establish a committee dedicated to enacting and implementing laws within the community and to fund activities to engage on and off-reserve members
• networking opportunities and share best practices to support First Nations in enacting their laws and lower the costs
• lower the 25% voting threshold or adapt it to the demographics of the communities (for example, adjust the threshold for communities with more off-reserve members than on-reserve)

Implementing the act

Participants echoed the lack of funding to implement the act is a great challenge. Moreover, they mentioned house and shelter shortages causing struggles when members are impacted by orders issued under the act, limited services offered to male victims of family violence, and the need for proactive measures including written agreements and wills to avoid disputes.

First Nations delegates identified a gap in legislation as to which law would apply on jointly held reserves where one First Nation has enacted a community-specific law and the other is operating under the provisional federal rules.

To address these challenges, participants recommended:

• ongoing funding to support a matrimonial real property specialist (a go to person) in every community to inform members and non-members of their rights and to support them in navigating the processes
• developing succession plans to ensure matrimonial real property specialists remain available in the communities
• resources in Indigenous Services Canada's regional offices to respond to questions related to matrimonial real property and related subjects such as housing, estates, registry, etc.
• additional resources to support victims, including shelters (for men and women), emergency protection houses and other supports (counselling for both partners in situation of domestic violence, including anger management services). Funding could also be accessed on a case-by-case basis
• clarifying the application of the law in jointly owned reserves
• providing standard templates for domestic agreements as well as training on wills and estates

Enforcing the act

Although most provinces in the Maritimes have designated judges, the name of those judges, as well as the process to apply for emergency protection orders is still unknown. Moreover, the costs for making applications for such orders remain a barrier to accessing rights and protections under the act. Participants also reported additional challenges including the lack of funding to provide arbitration, mediation and other culturally-relevant services to members. The lack of privacy protection clauses under the act and the need for more clarity around enforcement authorities were also identified as challenges.

To address these challenges, participants recommended the following:

• an online list of designated judges and the process to apply for emergency protection orders
• post community-specific laws on the centre of excellence's website for easy access by community members, lawyers, judges, etc.
• find ways to influence the legal curriculum to make it culturally-relevant and provide continuous matrimonial real property training to judges and the legal societies
• funding for honorarium for individuals providing dispute resolution services in communities and for mediation services
• add privacy clauses in the act to ensure personal information is safeguarded properly when dealing with application for orders or accessing alternative dispute resolution mechanisms
• greater clarity around peace officers' authority to enforce orders made under the act
• as case law becomes available, have a mechanism where new interpretations of the provisional federal rules can be funnelled down to First Nations

Other suggestions to improve implementation

First Nations delegates suggested to increase the occupancy period to 12 months after the death of a spouse or common-law partner to improve the provisional federal rules.

Participants

There were 60 participants at the engagement session in Kelowna, British-Columbia, representing First Nations from British Columbia, Manitoba, Saskatchewan, Ontario and Newfoundland.

This session was dedicated to First Nations operating under the First Nations Land Management Act (FNLM). Under their land code, First Nations have one year to address matrimonial real property or can opt to enact a community-specific law pursuant to the Family Homes on Reserves and Matrimonial Interests or Rights Act (the act). Once this period of time has elapsed, they generally become subject to the provisional federal rules.

Awareness and training

Participants highlighted a greater need to build awareness of the rights and protections available in the act within communities, leadership, the legal society, law enforcement and frontline workers. They stressed the importance of making the training for enforcement officers and law societies mandatory thus ensuring they are well equipped to support communities.

Participants also recommended that additional funding be provided to:

• train First Nations leadership, members and band staff
• develop a guidebook with detailed processes to support people in accessing their rights
• put together welcome baskets with information on matrimonial real property for new couples
• promote the act or their community-specific laws through various platforms, such as videos on social media

Enacting a community-specific law

Participants noticed that while there is time-limited and basic funding provided for the development of laws under the act, no equivalent funding currently exists for communities wanting to address matrimonial real property as part of their land code. The transitional funding provided to First Nations operating under FNLM was seen as being insufficient to undertake this work.

The voting requirement under the act was also criticized as it adds a layer of difficulty and does not recognize existing First Nations' constitutions. Participants voiced that communities should be able to decide for themselves what threshold is appropriate to pass their laws.

To address these challenges, participants recommended the following:

• additional funding and resources to:
  • create a committee or hire a resource to lead the development of the law
  • participate at law-making training
  • access experts for the development of the law
  • develop and implement outreach and consultation approaches
  • conduct engagement sessions with law enforcement and first responders
  • increase training for band staff so they are familiar with the community law
  • create an Elders Council that would perform a number of functions (for example, mediation, arbitration, interpretation) and include these functions in specific community laws
• add in the act a requirement for communities to determine a timeframe to review their community-specific law
• enable First Nations to establish their voting threshold to pass laws

Implementing the act

Many challenges raised echoed those from previous sessions, including issues related to the lack of resources and funding to support the implementation of the law, the house shortage on reserve, the need for additional shelters and safe houses and the difficulties around property appraisal on reserve, etc. Participants raised that approaches taken should be proactive rather than reactive.

Proposed recommendations to mitigate these issues were:

• designate a community matrimonial real property champion and a liaison officer in each province to help people navigate the court system
• put in place a 1-800 telephone number where people can seek information on their rights and protections
• support communities in taking ownership towards the implementation of mechanisms for first responders to address situations arising in their communities
• provide funding for continuous support programs for both parents and children, including:
  • support for reconciliation
  • mental health support
  • counselling
  • action plan to reintegrate children in the family after they are removed
  • parents rehabilitation program
• build foster homes on reserve for children to remain in the communities and closer to their parents
• build shelters and safe houses for both women and men
• implement a process for valuating properties that takes into account housing market on reserves
• provide training dollars for home and property evaluators on reserve lands
• provide additional estate planning sessions to reduce the number of conflicts

Enforcing the act

As participants operating under the FNLM have experience implementing laws, discussions were focused on enforcement challenges. They expressed the difficulties they face trying to engage and get the support of peace officers to enforce their laws. The lack of clarity over jurisdictions leads to chiefs and councils having to assume enforcement actions in the communities.

First Nations delegates also spoke about other challenges including access to justice, the designation of judges, confidentiality as well as the financial burden caused by some of the protections of the act, including the division of value in a breakdown of a relationship.

To address these issues, participants recommended the following:

• establish satellite courts that travel in communities to hear cases
• funding to develop and implement culturally appropriate dispute resolution mechanisms
• have the federal government, the Assembly of First Nations and First Nations put pressure on provincial government to designate judges
• clarify who has jurisdiction over enforcement of the act and community-specific laws
• a campaign educating various enforcement bodies with respect to their jurisdiction and obligations
• means to support dialogues and partnerships with enforcement bodies
• amend the act to include confidentiality clauses to protect personal information when dealing with applications for orders

Participants

There were 59 participants at the engagement session in Saskatoon, Saskatchewan, representing First Nations from Saskatchewan and Ontario.

Awareness and training

Participants commended the outstanding work accomplished by the centre of excellence and voiced the need for continued training and services, including awareness activities for community residents and leadership to learn about their rights and protections under the law. In addition, they recommended mandatory training for law enforcement officers and for that training to be monitored and evaluated to ensure successful outcomes and to better assist First Nations in enforcing the Family home on Reserves and Matrimonial Interests or Rights Act (the act). They further recommended that training be extended to law societies, frontline workers, off-reserve members and all other key players.

First Nations delegates requested that information be easily accessible through internet searches to facilitate the dissemination of knowledge on the act.

Enacting a community-specific law

Despite the many challenges encountered when enacting a law, including the lack of proper funding, frustrations regarding voting requirements and difficulties in hiring culturally competent lawyers, participants felt that the law-making mechanism under the act provides them with an opportunity to govern themselves and accommodate community-specific realities and needs. They stressed the importance of building a strong relationship with the province for better support in implementing First Nations laws.

Participants demanded that their voting and governance systems be recognized under the act along with:

• increased funding to account for actual expenses related to developing (for example, law-making staff, legal costs, community meetings, livestreaming, e-voting) and applying the law (for example, training and awareness activities, amending policies, reviewing policies, by-laws and the law, support members in accessing their rights)
  • participants suggested that funding be granted on a case-by-case basis and be proportionate to the community's population and be based on actual costs
  • the process to access grants should be easy (for example, through the Centre of Excellence for Matrimonial Real Property)
• similar funding for First Nations enacting a matrimonial real property law under their land code
• lowering the voting threshold of the act, participants proposed:
  • a formula taking into account on-reserve versus off-reserve members
  • to allow exceptions for communities not meeting the threshold but having exercised due diligence in their voting process

Implementing the act

Several challenges in implementing the provisional federal rules were reported during this session. Examples included:

• lack of dedicated funding and resources to implement the act
• availability of safe houses and shelters
• difficulties in assessing property value on reserve

Participants noticed the interrelations between the federal law and other areas as they discussed inconsistencies between their existing policies (such as housing policies) and the act.

To address these challenges, participants recommended:

• building additional emergency homes, shelters or provide funding for hotel rooms and basic needs for those impacted by the act
• creating a telephone helpline to answer questions on matrimonial real property
• allocating funding to bands to administer the law on an operational level. This could include:
  • designating a point person to disseminate information on the act
  • establishing clear processes and procedures with roles and responsibilities for the implementation of the act
  • ensuring existing policies and by-laws are aligned with the federal law
  • developing a process to appraise housing values on reserve
  • supporting community members in negotiating legally-binding domestic or pre-nuptial agreements

Enforcing the act

Participants articulated that better law enforcement outcomes could be achieved if there was more clarity over peace officer jurisdiction to enforce the act, more legal communities informed on the application of the act to better support individuals seeking protection and more support provided to individuals in crisis. They also pointed out the need for ways to solve matrimonial real property issues without involving the provincial court system; therefore:

• lowering the cost incurred for obtaining legal advice
• adding more cultural influences over decisions
• mitigating the risk of politically motivated bias by chief and council when making representation in court

The following recommendations were provided:

• clarify roles and responsibilities as it relates to the enforcement of the act
• provide training and copies of the act to the judicial system to build better awareness
• create a telephone line where individuals can call to make applications for emergency protection orders and exclusive occupation orders outside working hours
• fund counselling and mental health services to support children and parents going through the breakdown of their relationship
• provide support to communities to establish First Nations tribunals
• introduce a governmental program to fund alternative dispute resolution processes, including unbiased mediation (for example, northern and southern mediators) and discussions with Elders.

Other features that could be added to the implementation of the act

Participants spoke about their fear that the federal law may negatively affect their sovereignty and treaty rights and felt the law was imposed upon them. Some expressed their frustration regarding the rights provided to non-members under the act as they felt that these rights were taking away homes from members that are already struggling in trying to access houses. On the other hand, some made their policies more inclusive by adding the word "citizen" to include those who are not members but were born and raised in the communities and had contributed to it.

Participants suggested new features to improve the provisional federal rules:

• include in the legislation that it will not supersede treaties and Indigenous rights
• reviewing rights given to non-members (for example, not allowing non-members to occupy the family home)
• increase the number of 180 days of occupancy of the family home after the loss of a loved one (spouse or common-law partner)

Participants

There were 26 participants at the engagement session in Winnipeg, Manitoba, representing First Nations from Manitoba, Ontario and Saskatchewan.

Awareness and training

The need for continued training and awareness activities was a prominent point of discussion during this session. Participants identified several gaps in knowledge in the community, leadership, legal practitioners, law officers, frontline workers, and other key stakeholders.

To address these gaps, participants recommended the following:

• offer additional information sessions facilitated by the centre of excellence in communities
• fund the development of material related to matrimonial real property to include as part of the school curriculum for youth to understand their rights and protections under the law
• provide additional training to law enforcement officers, law societies, frontline workers and work with the provinces to include this training as part of their law program and curriculum

Enacting a community-specific law

Participants voiced their frustrations towards their constant battle for having their rights recognized and felt they were left on their own to promote their laws and educate key stakeholders. They communicated that a fundamental change was vital to ensure a strong government-to-government relationship and that this would only be achieved when all levels of government recognize and acknowledge First Nations' governance and law-making powers, including those conferred by the Family Homes on Reserves and Matrimonial Interests or Rights Act (the act). Participants also stated that a strong partnership between Canada, Manitoba and First Nations is critical to support them in establishing their laws and ensuring successful implementation. They saw this fundamental change as being part of the reconciliation process.

Other obstacles to law-making were also identified including the lack of funding to build capacity within the communities and to develop and implement a law, as well as, the challenge related to the voting threshold. To mitigate these challenges, participants recommended the following:

• work with the federal and provincial governments to establish tripartite partnerships to work collaboratively in developing and implementing First Nations laws
• add a requirement in the act for provinces to post First Nations laws on their website for better awareness and easy access
• provide funding to pay for all expenses related to the development and implementation of the law, including, but not limited to, project coordinators, training for staff to build capacity, legal fees, consultation activities, partnerships, awareness of the law, policy development
• recognize and codify already established First Nations law-making processes and pre-established nation laws, for example, the Anishinaabe law
• harmonize and standardize all voting requirements established by federal departments for consistency or allow First Nations to establish their own standards for passing their laws
• enable First Nations to include traditions and customs into their laws (for example, recognition of traditional marriages, custom adoptions, custom allotments)

Implementing the act

Engagement participants raised that other challenges in their communities make the implementation of the act arduous. This includes the housing crisis that still persists after decades and adds a level of difficulty when people are displaced by exclusive occupation orders or seek shelters in cases of family violence. They stressed the importance of establishing proactive measures in order to prevent disputes from arising and to equip people with tools to better deal with breakdowns of relationships.

To address these challenges, participants recommended the following:

• provide additional funding to:
  • hire unbiased and dedicated people to guide individuals seeking rights and protections
  • establish proactive remedies, including domestic contracts, housing policies, wills, etc.
  • build additional houses on reserves and maintain those houses for individuals displaced by exclusive occupation orders
  • build shelters and safe houses on each reserve
  • support healing centers with proper resources to support victims, offenders and survivors (for example, counselling, anger management support, grief counselling)
  • hire professional property appraisers who understand the market on reserve
• ensure the act is tied in with child and family services to engage proper stakeholders to ensure children's safety
• have all application forms more accessible and available at the band office and online
• offer estate planning workshops and set goals in communities to have wills in place for all residents

Enforcing the act

Although the province of Manitoba established an expedited process for the application of exclusive occupation orders when family violence is involved, work is still needed to inform law societies and law enforcement entities on this process and other rights and protections available to on-reserve residents under the law. Manitoba representatives also felt that more active involvement from the province would lead to better enforcement and support to First Nations communities.

Some communities also mentioned how they struggle to obtain unbiased decisions when matrimonial real property issues arise amidst a lack of confidentiality or perceived lack of confidentiality and the resulting impacts on decision making within the community. The lack of actions taken by leadership in some sensitive situations was also questioned.

To mitigate these challenges, participants recommended the following:

• work with provinces to designate judges to ensure emergency protection orders are available throughout Canada
• promote remedies available for First Nations victims of family violence on Manitoba's Department of Justice website (for example, the exclusive occupation order process in Manitoba)
• provide accessible legal advice and support, including legal aid for those on welfare
• support alternative dispute resolution mechanisms, including aggregation to form mediation circles, First Nations tribunal, etc. supported by an ethics commission to oversee the integrity of decision making

Other features to improve implementation

Participants suggested amending the act by including more clarity over inheritance (for example, inherited lands, inherited other matrimonial rights and interests).