Written by Alannah Jensen
A Key Step in Addressing Matrimonial Property Rights on Indian Reserves
In the landmark case of Derrickson v. Derrickson [1986] 1 S.C.R. 285, the Supreme Court of Canada (SCC) clarified an important issue concerning the division of family assets for couples living on Indian reserve lands. The SCC ruled that provincial legislation related to the division of matrimonial property does not apply to Indian reserve lands, as ownership and possession of these lands fall under federal jurisdiction. This decision had a profound impact on how matrimonial property disputes on reserves would be addressed in the future.
The Implications of Derrickson v. Derrickson
The Derrickson decision emphasized the unique legal status of Indian reserves and the federal jurisdiction over reserve lands. The SCC recognized that matrimonial real property disputes on reserves could not be resolved under provincial family law frameworks because these lands are not subject to provincial control. This gap in the law created challenges for First Nations members living on reserves who were experiencing relationship breakdowns or disputes over the family home and associated property.
To address these concerns, the federal government introduced the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA), which provides a legal framework to deal with family property issues on reserves. This law applies specifically to married couples or common-law partners who live on a reserve where at least one partner is a First Nation member or a status Indian.
Key Features of the Family Homes on Reserves and Matrimonial Interests or Rights Act
The FHRMIRA offers several important provisions aimed at ensuring that marital property issues on reserves are resolved fairly and consistently, while also respecting the legal rights of First Nations communities.
1. Federal Jurisdiction Over Matrimonial Real Property:
The Act underscores that issues concerning matrimonial real property (such as the family home, land, or other assets held jointly by spouses or common-law partners) on reserves fall within federal jurisdiction. As a result, the FHRMIRA applies to individuals living on reserves, providing them with legal avenues to resolve property disputes.
2. Empowering First Nations to Enact Their Own Laws:
One of the key features of the FHRMIRA is that it provides First Nations with the authority to create their own laws governing matrimonial real property on reserves. Section 7(1) of the Act grants First Nations the power to enact laws that govern the use, occupation, and possession of family homes, as well as the division of interests in structures and lands held by spouses or common-law partners on reserves.
3. Process for Enacting First Nation Laws:
The FHRMIRA also establishes a process for First Nations to adopt their own laws regarding matrimonial real property. This process is detailed in sections 7(3) to 9(2) and includes several key steps:
- Notification: A First Nation must notify the Attorney General of their province of their intention to enact matrimonial real property laws.
- Consultation and Approval: The First Nation must submit a proposal of the laws to its members for review and approval. A vote must be held, and at least 25% of eligible voters (members aged 18 or older) must participate in the vote.
- Final Approval: If the proposed laws are approved, the First Nation must inform the Minister of Indigenous Services in writing and send a copy of the laws to the Minister, any designated organizations, and the provincial Attorney General.
4. Eligibility for Voting:
Section 8(2) of the FHRMIRA specifies that eligible voters include all members of the First Nation who are 18 years of age or older. This provision ensures that the decision-making process is inclusive and that the community has a direct say in the laws that govern their matrimonial property rights.
5. Ministerial Oversight:
Once a First Nation's matrimonial real property laws are passed, the Minister of Indigenous Services must be informed of the results of the vote. This ensures that there is federal oversight of the process, while still respecting the autonomy of the First Nation to govern itself in matters concerning matrimonial property.
The Significance of the FHRMIRA for First Nations
The introduction of the FHRMIRA represents a major step forward in addressing the legal and social challenges faced by First Nations individuals living on reserves. Prior to this Act, individuals in matrimonial disputes had limited legal recourse when it came to property division, and the federal government’s intervention provided a necessary remedy to address the legal void created by the Derrickson decision.
The FHRMIRA supports First Nations in maintaining control over matters that directly affect their communities. By allowing First Nations to pass their own laws, the Act provides a degree of self-governance while also creating a clear legal framework for resolving property issues.
Conclusion
The Derrickson decision highlighted the need for a distinct legal approach to matrimonial property disputes on Indian reserves, and the introduction of the FHRMIRA was a critical response. By empowering First Nations to enact their own laws while providing a federal framework for resolving property issues, the Act represents a meaningful shift towards respecting First Nations' rights and sovereignty over lands and marital property. This balance between federal oversight and First Nations' self-governance is a significant step forward in improving the legal landscape for Indigenous families and ensuring that they have access to fair and equitable solutions in times of relationship breakdowns.
The FHRMIRA serves as a valuable tool for First Nations communities to protect the rights of individuals living on reserve, offering clarity and legal recourse in matters of matrimonial real property while supporting First Nations’ authority to create laws that reflect their values and traditions.