Bill S-4 relates to matrimonial real property on reserve after the breakup of a marriage or relationship. After a process of hearing from witnesses and deciding on potential amendments, the Senate will vote on the Bill today. Even if the Bill is passed, it must still go through the same process in the House. Given Parliament's summer schedule, it likely won't be addressed until the fall.
That being said, there are numerous problems with Bill S-4. While some protections are important for those who divorce or no longer cohabitate, Bill S-4 represents backdoor assimilation - a key feature of the conservative government's agenda, well-informed by Tom Flanagan and his right-wing ideas. One particular issue of concern is that of the recent amendments which would allow courts to "consider" First Nation collective interests in divorce cases.
The legality of Bill S-4 in disposing of constitutionally protected land rights in reserves have not been fully canvassed. In my opinion, given that reserve lands are the same as Aboriginal title lands in terms of their inalienability and collective nature (as stated by the SCC), and given the fact that many of those reserves were created pursuant to treaties which are constututionally protected, there is no legal way that Bill S-4 can legally override that.
As Canada knows very well, legislation cannot amend the Constitution Act, 1982- and this Bill proposes to do just that. Adding a clause that allows the courts to only "consider" the collective nature of reserve lands does not change that fact. Either Bill S-4 can amend the Constitution or it cannot. Either Bill S-4 can violate treaty protected reserve lands or it cannot. It is not up to a court, within the context of a family dispute to only "consider" those facts and issue a decision which contravenes the Constitution Act, the Indian Act or treaties.
Canada argues that by adding provisions which allow the courts to "consider" First Nation land rights, that this somehow mitigates their legal and fiduciary obligations with regards to First Nation lands. Not only does this legislation not meet Canada's fiduciary obligations, it increases requirements on First Nations to defend their land rights. This legislation will require First Nations to defend the title to their reserve lands over and over again after each and every marital or relationship breakdown. We are requiring that First Nations appear in thousands of court rooms to defend their treaty rights and constitutional rights at their own expense.
Senator Brazeau made that point very clear when I appeared before the Senate - when First Nations said that had no capacity to develop their own laws but would challenge S-4 in court if it violated their land rights, Senator Brazeau told them they couldn't defend their collective rights because they had no capacity. Unfortunately, I fear this will be the case. Thousands of divorce cases will go to court absent representation from First Nations who have no money for lawyers, travel expenses or research to justify why their treaty and constitutionally protected reserve lands should remain protected.
There are no other constitutional rights that must be defended over and over again - but those of First Nations. Canadians have yet to accept that section 35 recognizes, affirms and protects Aboriginal and treaty rights - which includes land claims, modern treaties and self-government agreements. Canada has already stated that section 35 protects the inherent right of self-government - I can't see anything more inherent to self-government than First Nations management of their own lands.
Bill S-4 does not protect any of those rights, but insteads belittles them and reduces them to a mere "consideration" for judges who must decide how to dispose of reserve property. This is insulting to at best and illegal at worst. First Nations were forced unto reserves, they have lost the vast majority of their traditional territories and all they have left are their tiny reserves. Now we are telling First Nations that reserves are up for grabs and we can ignore constitutionally protected rights at will. This is reminiscent of the Royal Proclamation of 1767 and the days when we had to protect Indian lands from settlement.
Imagine First Nations which are located next to major cities or who have high rates of outmarriage due to small populations - within literally 1 year some reserves could be occupied exclusively by non-Indians and the "temporary" nature of that possession does not change that fact. How can we ask First Nations who have the lowest socio-economic indicators to lose what little they have left? That Canada could advance such a position is a disgrace and it flies in the face of international common law and norms in relation to the need to provide GREATER protections for Indigenous lands not less.
Once again, through the backdoor the Conservative government is trying to enforce its assimilatory agenda. The Conservatives know they can't simply disband reserves, so they are trying to do so under the guise of protection of families or economic development (Bill C-24). One can't help but take note that Flanagan was Harper's former advisor and that Flanagan is not only behind C-24 but has advocated specifically for the privatization of reserve lands.
Reserve lands are not for sale. They are not available for non-Indian settlement. Assimilation and land theft is supposed to be over - it is supposed to be a thing of the past that Canada has apologized for - unfortunately Bill S-4 ressurects those ideologies:
- that Indian land should be abvailable to non-Indians;
- that First Nations are incapable of resolving their own internal matters;
- that First Nation culture is inferior to ours, such that they are more likely to violate human rights;
- that First Nations are so juvenile and incompetent that they must be treated as wards and supervised while they consult with their communities on Bill S-4 and their actions watched closely and "verified" as acceptable.
We should all be disgusted that this assimilatory attitude is not called for what it is: racist and draconian. Canada needs to leave First Nations alone with regards to their own internal affairs. If they make mistakes, they'll fix them. If they violate human rights, the appropriate bodies will address that. We need to respect our Supreme Court of Canada cases, our treaties and our Constitution - First Nation constitutional rights are no less the Supreme Law of the Land, than other constitiutional rights like gender equality.
Please send your views and concerns to your MPs over the summer months.
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