The Mississauga’s of the New Credit are seeking input from their members to design and codify a binding Matrimonial Real Property bylaw for that community.
In a letter distributed to all Band Members last week, Chief Bryan LaForme advised that he and his Council have created a committee to gather information from the people and construct a Matrimonial Law that will deal with the complexities of on-reserve, off reserve dynamics as well as mixed marriages as it relates to real estate.
It is expected to take several months to do so, but LaForme believes the process has to start somewhere. LaForme also promises a number of community meetings on the topic over the coming months.
The Canadian government has passed Federal Legislation called the Family Homes on Reserves and Matrimonial Interests of Rights Act.
They say it was put in place to fill the legislative gap that existed whereby there was no First Nations law in place to handle marriage or relational breakdowns.
“In essence, the new Act will apply Provincial Laws on reserve,” says LaForme.
However, should a First Nation choose to develop its own Matrimonial Law they may do so. There is a one year transition period from the time the Act is passed (received Royal Assent in June or 2013), until Provincial Law applies on reserve.”
He hopes the community can find an alternative law instead that will truly reflect the culture and the people of New Credit.
Under the Canadian Constitution, property and civil rights are within the executive jurisdiction of the Provinces and Territories. However, Indians and land reserved for
Indians fall under Federal Jurisdiction and the Provinces have no right to legislate in respect to it. Therefore, there are no provisions that cover reserve land or family homes in the event of a divorce or separation on reserve.
There are several Canadian Supreme Court decisions on record that have set precedent in such cases which the Canadian governments are preparing to enforce on reserves unless the communities can craft their own.
In each, the court found that provincial law does not apply and that lands cannot be divided in such cases, but compensation in lieu of land can be ordered.
It is a classic case of collective rights versus individual rights.
It is the opinion of most First Nations in Ontario that the arbitrary legislations do not recognize First Nations jurisdiction and do not accommodate First Nations laws, policies, and legal traditions. The legislation does not consider local dispute resolution bodies or First Nations courts and is in violation of existing treaties and therefore section #35 of the Canadian Constitution Act.
If First Nations misses the window of opportunity to develop their own laws, even with these glaring errors, the Federal government’s Family Homes on Reserve and
Matrimonial Interests of Rights Act will apply, like it or not. recognize First Nations jurisdiction and do not accommodate First Nations laws, policies, and legal traditions. The legislation does not consider local dispute resolution bodies or
First Nations courts and is in violation of existing treaties and therefore section #35 of the Canadian Constitution Act.
If First Nations misses the window of opportunity to develop their own laws, even with these glaring errors, the Federal government’s Family Homes on Reserve and Matrimonial Interests of Rights Act will apply, like it or not.
By Jim Windle
NEW CREDIT
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