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w w w . C A N A D I A N L a w y e r m a g . c o m M a r c h 2 0 1 4 45 Meko Nicholas, the assistant executive director of the First Nations Lands Advisory Board Resource Centre, contrasts the matrimonial rights property laws development process with the respectful collaboration that lead to the creation of The Framework Agreement on First Nation Land Management. "We came about through a consensus with Canada. Once you come into the framework you are not told you have to do it or something will be imposed on you." First Nations that have land codes develop their own mat- rimonial rights property laws in the community and then pass them through the nation's law-making authority. As a result, there has been a high level of acceptance and compliance with the codes. These First Nations are exempt from the new act, although they may have to supplement their codes with provisions regarding death and estates and the social aspects of protection orders not covered under the framework. Bands on the LAB schedule have a three-year exemption to allow them to complete their matrimonial rights property codes. There is concern for the 50 bands on the waiting list for frame- work approval at the Department of Aboriginal Affairs and Northern Development. If they are not signed up by Dec. 16, they will be subject to the new legislation until they produce their own laws. While there are other matrimonial rights property laws in self-governing nations and in the form of traditional laws, the ones under the framework are currently enforceable in the courts. The danger for First Nations that decided to continue on their own path is that, come Dec. 16, community members will start invoking outside court orders. Ernie Tannis, who is experienced in aboriginal and family law matters, fears this has the potential to create conflict on many levels. "It will be a rude awakening and a culture shock. Family law is a critical area in any society, but especially on reserves. This has the potential to create more harm." In anticipation of this coming conflict, many First Nations have already begun or completed their own law-making pro- cess and now have to decide whether to engage the new one. The Assembly of First Nations has been encouraging its mem- bers to occupy their own jurisdictional space by articulating their laws and practices. Its position is First Nation laws are valid whether or not the federal government approves them. The Six Nations of the Grand River is one community that has undertaken an extensive community process to create a robust set of laws, and it has no intention of submitting them for government approval. "We are asserting our own jurisdiction with respect to matrimonial real property and are taking the position that the federal legislation will not apply to us," says Chief Ava Hill. The Union of Ontario Indians, also known as the Anishinabek Nation, comprising 39 member First Nations across Ontario, is yet to make a decision on the issue. Its laws were passed in 2007 when a previous version of this legislation was on the table. Jenny Restoule-Mallozzi, legal counsel for the union, believes the ideal procedure would be to slot in what First Nations have already developed under the new legislation without having to go through the approval process. "Our laws have been developed with the consultation of the citizens and the approval of the chiefs, but there is a question for the min- ister whether it comes under the parameters and the specific categories in the legislation." Another obstacle is a lack of funding for legislative draft- ing. A centre for excellence of matrimonial real property "There's lots of front-end political sizzle for the Conservatives but the back-end is empty. They've provided a legislative framework and regulations to deploy the process without the infrastructure to handle it." DoN BAIN, union of British Columbia Indian Chiefs ntitled-5 1 14-02-06 1:39 PM