Presentation to
Eskasoni First Nation Council
May 27, 2014
Krista Brookes, Sr. Policy Analyst/Legal Advisor
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

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 Legal title of all Indian reserve lands in Canada vests with the Federal Crown – section 91(24) Constitution Act, 1867
 Band members have collective rights to possess, use and enjoy reserve lands only
 Highest level of reserve land interest or rights available for some band members is
Certificate of Possession (CP)/customary allotment (not ownership/fee simple title)
 Due to the unique collective land tenure nature of reserve lands – inalienable to third parties, except to the Federal Crown, upon surrender or designation
 Non-members have no (and unable to gain) permanent interests/rights to reserve lands/homes; not entitled to a share in value of land or any land appreciation
 Interests in reserve lands are registered with Federal Indian Land Registry
(administered by Aboriginal Affairs and Northern Development Canada)
 Indian Bands are creatures of federal statute (Indian Act)
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

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 Only status Indian Band members are eligible to apply for/allocated housing units on their reserves in Canada
 No legal home ownership (deed) by individual band members or other occupants of on-reserve homes; right to possess only
 In Atlantic region, majority of homes built on-reserve are social housing (rental) units
(commonly referred to s. 95 housing units)
 All mortgages are held by the Band and secured by federal Ministerial loan guarantees
 Severe housing shortages and overcrowding
 Cannot sell on-reserve homes on open real estate market (restricted to selling to another band member only); however, still no transfer of title b/c no individual home ownership on-reserve
 Very difficult to determine the monetary value of a home on-reserve b/c cannot include the land; new Act states that the valuation of homes will be based on “what a buyer would reasonably be expected to pay a seller for comparable interests or rights”
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

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 In Atlantic region, most First Nation governments have an unwritten policy which permits a spouse/CL partner (member or non-member) to reside in family home, upon separation or death of a spouse, if that spouse has legal custody (court order) of dependent children and, if spouse is a nonmember, permitted to reside there until such time as new accommodations can be secured or children no longer dependent;
 Valuation of on-reserve homes has been challenging to determine
 Courts currently grant compensation/valuation orders; not enforceable in favor of a non-Indian against a Status Indian spouse living on-reserve due to the application of s. 89(1) of Indian Act
 Status Indian spouse/common law (CL) partner who holds a CP in his/her name can sell on-reserve family home to another band member without the consent of the other spouse/CL partner and keep all proceeds of sale;
 Status Indian spouse/CL partner who holds a CP in his/her name can bar the other spouse from the on-reserve home;
 In cases of domestic violence, a court cannot order one spouse/CL partner to leave a family home situated on-reserve, even on temporary basis;
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

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 Now Law - received Royal Assent June 19, 2013
 Seeks to address 25 yr “legislative gap” created by Indian Act (silent) by enacting federal legislation based on common elements of prov MRP laws ;
 Provincial matrimonial real property (moveable assets ie., land and homes) laws do not apply on-reserve (1986 SCC Derrickson v. Derrickson) but provincial laws related to matrimonial personal property can apply, such as money in bank accounts, furniture, cars
 MRP law protection previously was not available for couples on-reserve:
 federal jurisdiction/unique collective land tenure/inalienability of Indian reserve lands which is governed by Indian Act;
 provincial law cannot alter land rights or interests on-reserve;
 GIC order fixed December 16, 2013 as day First Nation law-making enabling provisions (s. 7-11) enforceable; provisional federal rules (s. 12-52, 54 & 55) will not come into force until 1 yr later on December 16, 2014
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

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 Enables First Nations (FNs) to enact own MRP laws to fill gap until December 16, 2014; can include cultural and traditional concepts & alternative disputes mechanisms
 If no FN laws in force by December 16, 2014, the provisional federal rules will automatically apply
 FN can enact own MRP law at any time even after federal rules apply
 Proposed FN laws require community ratification vote of all on/off-reserve eligible voting band members (18+); requires single majority vote of at least 25% of eligible voters;
AANDC no role in reviewing/approving FN MRP laws; if FNG does not comply with its law once enacted (must comply w Charter), members can challenge in court
 Does not apply to self-governing or First Nations Land Management Act (FNLMA) FNGs that have their own MRP laws; if self-govt, no MRP laws, can opt in; for FNLMA FNs, if no laws after 3 years, federal provisional rules will apply
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

 Applies to married couples and common-law partners, where at least one of them is a Band member or a registered status Indian;
 Definition of “spouse” in Act is “either of two persons who have entered in good faith
into a marriage that is voidable or void”;
 Indian Act definition of “common-law partner” applies in this Act and means “a person who is cohabitating with the individual in a conjugal relationship, having so cohabitated for a period of at least one year.”
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 No provisions of this Act will allow it to apply retroactively; Provisions of this Bill will only apply from the day on which they are brought into force.
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

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 In cases of domestic violence or abuse, court can grant an emergency protection order against a spouse/CL partner from family home on urgent basis;
 Court can grant exclusive (temporary) occupation order of family home for specific period of time for non-members (up to 90 days with option to apply for extensions, ie., until no longer have dependent children);
 Family home cannot be sold without consent of both spouses; Court cannot order sale of home
 Upon death, surviving spouse/CL partner can continue to live in home for up to
180 days and apply for extensions;
 In event of separation, divorce or death, each spouse/CL partner must share equally in value of family home and any other matrimonial interests/rights;
 Non-members, however, not entitled to share in value of land or any appreciation
 Court may order transfer of matrimonial interests/rights from one member spouse/CL partner to another, along with, financial compensation
 Court can enforce written separation agreements that set out amount each spouse/CL partner is entitled to receive
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

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 Section 52 of Act relates to enforcement of orders relating to the amounts payable upon breakdown of a relationship or upon death of a spouse/CL partner;
 S. 89(1) of Indian Act may still be issue regarding enforcement of orders onreserve against a status Indian spouse/CL partner in favor of a non-member;
 Non-members can apply to have court orders enforced by Band Council as if the order was made in favor of First Nation;
 Council is not bound to enforce order and if Council issues notice that it will not enforce order or does not do so within reasonable period, court may, where necessary, allow an application to vary order to require person against whom the order was made to pay into court the amount payable;
 Court can enforce free and informed written agreements made between the spouses on division of value of matrimonial property;
 NOTE: Some of the federal provisional rules may continue to apply in certain circumstances despite a FN MRP law in force - section 54(2)
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

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 Severe housing shortages will worsen if non-native/non-member spouses/partners obtain exclusive temporary possession of matrimonial home
 Insufficient time for FNs to enact own laws before federal rules apply; no funding to support FNs implementation needs such as human resources, capacity building and enforcement of their own MRP laws
 Federal provisional rules only allow FNG to be notified in regards to any proceedings and may make representations to the courts about the relevant cultural, social and legal context (does not apply for emergency protection and confidentiality orders)
 Potential lack of cultural competency and awareness for those involved in implementation
 Non-Indian can now derive an economic advantage from a disposition in reserve home
(ie., improvements)
 New costs to be assumed by provinces, greater role of provincial courts in FNGs/onreserve federal matters (which may give rise to a future Constitutional challenge)
 See other issues listed in Briefing Note dated April 29, 2014
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

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 Recent announcement by AANDC regarding Implementation Plan which includes: (1) creation of new Centre of Excellence on MRP; (2) funding/training for police officers, provincial superior court judges; (3) legal experts who will be provided educational materials
 National Aboriginal Lands Managers Association will host new Centre for
Excellence for MRP on-reserve ( http://www.coemrp.ca/ )
 Its mandate is to support the implementation of the new Act by “providing guidance and support to First Nations who choose to undertake the development of their own Matrimonial Real Property Laws, and to facilitate an understanding of the provisional federal rules.”
 Became operational November 20, 2013
 New model First Nation MRP law on their website now; National Forum on the technical aspect of the MRP law, June 17-19, 2014, Toronto
Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca

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Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) www.apcfnc.ca