CBA recommends improvements before proceeding with Bill S-4, Family Homes on Reserves and Matrimonial Interests or Rights Act

OTTAWA – The Canadian Bar Association’s (CBA) National Aboriginal and Family Law Sections say that Bill S-4, Family Homes on Reserves and Matrimonial Interests or Rights Act, falls short of achieving a balance between the rights of spouses to matrimonial property on a reserve, and the collective rights and interests of Bands on their reserve lands.

“The Bill offers significant legislative protection for women and children living on reserves, and we agree that decision makers should consider the best interests of children,” says Chris Devlin of Victoria, Executive Member of the CBA’s Aboriginal Law Section. “However, we don’t see this as conflicting with the non-alienability of reserve lands, and greater weight should be given to the inherent rights and interests of First Nations.”

The two CBA National Sections collaborated on the submission to ensure that proper consideration was given to the federal Divorce Act and equality provisions in sections 15 and 28 of the Canadian Charter of Rights and Freedoms, and to the Indian Act and section 35 of the Constitution Act, 1982.

The CBA submission contains 20 specific amendments to improve the Bill including the following:

Nothing in the bill should detract from existing Aboriginal and treaty rights under section 35 of the Constitution Act, 1982.
Administration agreements concerning the additional jurisdiction conferred on provincial and territorial courts should be made before the bill comes into force.
Access to justice and adequate family legal aid services should be considered.

The CBA says that government resources must be available to allow First Nations to develop their own matrimonial real property laws, should they wish. The implications of Bill S-4 over inherent rights of self-government and over First Nations citizens and reserve lands call for greater in-depth consultation before the Bill proceeds further in the legislative process.

The CBA also notes that no consensus among First Nations organizations has been achieved on the Bill. “It is important for the federal government to adequately consult First Nations and First Nations organizations before proceeding with this proposed legislation,” says the submission.

Chris Devlin will present the CBA submission to the Senate Committee on Human rights on Monday, May 31, 2010, at 2:30 p.m. in Room 259, East Block. The submission is available on the CBA website.

The Canadian Bar Association is dedicated to support for the rule of law, and improvement in the law and the administration of justice. Some 37,000 lawyers, law teachers, and law students from across Canada are members.

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MEDIA CONTACT:
Hannah Bernstein
The Canadian Bar Association
Tel: 613-237-2925, ext. 146
E-mail: hannahb@cba.org