By Alex Keenan
The breakdown of a relationship or the death of a spouse is always a difficult experience. For many First Nations couples living on reserve, the experience may be even more difficult due to a lack of effective legal mechanisms for allocating family property.
Canada’s Constitution assigns family property matters to provincial jurisdiction while matters going to the core of Indigenous rights and reserve lands are considered to fall within the exclusive sphere of the federal government. As a result, courts have refused to apply provincial legislation to a number of matrimonial property issues on reserves, leaving couples to try and apply federal law (which may be under-developed or even non-existent in this area) to settle their legal disputes. Indigenous legal traditions are typically not even part of the discussion. Even where provincial law does apply to these matters, it is not necessarily well-suited to the particular circumstances and values of First Nations and their members.
In response, the federal Government enacted the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRA) in December 2014. The Act provides options for First Nations in dealing with matrimonial interests and rights to property on reserve. It also provides a measure of certainty in what has long been a jurisdictional vacuum.
More importantly, the FHRA recognizes that First Nations have a right to pass local laws regulating members' rights in, and entitlements to, property located on reserve during a conjugal relationship and after its breakdown. It also provides a set of “provisional” rules that will apply to those First Nations that have not enacted their own laws.
The provisional rules provide a system for allocating interests and rights in family property when at least one partner is an “Indian” (as defined by the Indian Act) and the property is located on a reserve. These rules deal with rights to occupy the matrimonial home; create processes for obtaining emergency protection orders in the event of family violence; regulate the division of property upon breakdown of a relationship; and set out a person’s property entitlements upon the death of a spouse, among other things. Notably, the provisional rules give fairly extensive rights to a spouse who is not a member of the First Nation on whose territory the property is located.
The rules give courts flexibility to vary the application of the rules in order to ensure that outcomes are not “unconscionable”. They also provide for the involvement of First Nations in the court process, permitting an interested First Nation to make submissions to the court about matters occurring on its lands. Finally, the provisional rules deal with enforcement of court orders that are made under the FHRA.
While the FHRA provisional rules were drafted with First Nations in mind and arguably represent a vast improvement over the uncertain, patchwork approach that previously existed, these rules were designed to apply to a large diversity of First Nations across Canada. As a result, they can fall short in addressing the issues faced by a particular community.
The most significant aspect of this legislation is the recognition that First Nations have the right to make their own local laws concerning family property. The passage of the Act has spurred discussions across the country and this is an ideal time for First Nations councils to engage with their citizens and talk about whether a local family property law would be right for them.
There are many reasons why a customized family property law may be appropriate. Here are just five of them.
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