Canadian Lawyer

44 M a r c h 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m lEgal rEport/FAMilY lAw Empty gesture or catalyst? First Nation matrimonial rights property legislation is not being embraced by native groups but it could be a boost for real changes. by juDy van rhijn T he failure of the federal government to listen to aboriginal concerns in the drafting of the new mat- rimonial rights property laws may have left the legislation with more form than substance. While the need to address the gap in family law coverage on reserves was universally supported, this legislation was almost universally opposed by First Nation organizations. It provides 12 months for First Nations to produce their own laws or have laws imposed on them. However, its very existence may provide the catalyst needed for bands to address the issue, whether inside or outside the legislation. When the Supreme Court of Canada ruled in 1986 that provincial and ter- ritorial matrimonial real property laws did not apply on reserve lands, it created a situation where spouses who did not hold a property interest in their name were left with no rights, leading to the displacement and homelessness of many parents and children. Until recent years, the government did not recognize First Nations traditional laws and practices relating to family law and matrimo- nial property matters, which left non- members, in particular, with no avenue of redress even if they had contributed significantly to a home on a reserve. The Family Homes on Reserves and Matrimonial Interests or Rights Act, passed Dec. 16, 2013, acknowledges native jurisdiction by proposing bands draft their own laws, then offends the principle by instituting a 12-month time limit before imposing laws on those bands that have not gone through the govern- ment hoops in the prescribed time. The First Nations' position is they have an inherent right to self-government affirmed by s. 35 of the Constitution Act. An aspect of that is the jurisdiction to address real property issues upon break- down of marriage and common-law rela- tionships, which has never been extin- guished. Now this legislation has passed, First Nations are faced with the decision whether to try to comply with the legisla- tion or to continue on their own path. tara hardy

• Cover