Law Times

Law Times • June 17, 2013 Page 11 FOCUS Longer transition period touted for contentious bill Continued from page 10 people, including legal scholars and our leadership, assume are a part of our nations' inherent right of self-government and protected under Canada's Constitution." She also cited the requirement for free, prior, and informed consent as articulated in s. 19 of the United Nations Declaration on the Rights of Indigenous Peoples. The act of bestowing legislative authority on the First Nations and granting jurisdiction to provincial courts for enforcement is an affront to their right to self-determination, critics argue. If they don't develop their own code, the proposed legislation establishes federal laws imposed on them. One speaker compared the situation to the creation of municipal governments subject to federal power while another compared the delegated authority to "someone trying to steer our canoe." The Native Women's Association called this arrangement a new form of colonization. It called for the government to invoke the recommendations of Wendy GrantSmith, the minister's special adviser in 2007 who prepared a special report on the matter that received wide support from First Nations. Her key recommendation was for a concurrent jurisdiction model in which First Nation's authority over matrimonial real property, including dispute resolution, would be paramount in any conflicts with federal or provincial law. The association also asked for implementation of recommendations put forward by the aboriginal law section of the Canadian Bar Association after a comprehensive review in 2010. These calls reflected the complaint that despite the 103 consultations across 76 communities and $8 million spent in studies, the government hadn't listened to the advice it received. There was also great dissatisfaction with the fact the bill was before the committee on the status of women when it clearly affects the rights of men, same-sex marriages, and families. Some groups, such as the Iroquois, have a matrilineal society in which women have traditionally owned the land, the house, and the children. Men were husband visitors rather than landowners. A motion to refer the bill to the standing committee on aboriginal affairs and northern development was unsuccessful. David Langtry, the acting chief commissioner of the Canadian Human Rights Commission who spent 15 years as a family law practitioner, questioned whether First Nations have the financial and human resources to develop their own legislation and effective dispute resolution systems. He raised the possibility of a 36-month transition period, but a motion to amend the bill in this respect was unsuccessful. On the question of resources, he said the commission had learned that there were limited supports for other on-reserve issues associated with matrimonial and real property such as counselling and legal assistance. In fact, the bill doesn't provide any practical support for communities to develop their own laws apart from funding a centre for excellence that will research best practices. Critics have suggested the $5 million allocated over five years is inadequate for serving the hundreds of communities that would need assistance. Both on-reserve and offreserve representatives called on the government to allocate resources to assist communities to meet this new responsibility. Critics have also pointed out that access to justice is very poor, particularly in the remote community circuit courts. There's often a large backlog, little access to legal aid, and limited transportation to the courts. Enforcing the new laws is another challenge given the chronic problems with policing and court accessibility. The position of the committee was that it was time for action to close the legal loophole. As the Conservatives appear determined to pass the legislation this time around, aboriginal communities are bracing themselves to address it as best they can. The AFN has developed a template matrimonial real property law. The Iroquois caucus has also drafted a law that's under discussion. The human rights commission has been helping communities develop an alternative dispute mechanism that may be able to deal with some of the issues. As a result, communities will now be looking for lawyers with the expertise to take on the complex challenge of drafting rules that harmonize the various laws in force within the 12-month period. LT Welcome to a new legal powerhouse. Announcing the new partnership between two of Canada's best known and highly regarded criminal lawyers, Marie Henein and Scott Hutchison. Having litigated against each other for years, they have combined their wins into one impressive column. Both are members of the American College of Trial Lawyers and Supreme Court Advocacy Institute and authors of frequently cited texts. They have been recognized for their excellence in trial and S O M E TI M E S TH E B E ST D E F E N CE I S E VE N M O R E D E F E N CE . appellate advocacy, appearing frequently at the Supreme Court of Canada and the Ontario Court of Appeal. Their entire team of outstanding lawyers offers experience in criminal, quasicriminal, regulatory and cross-border litigation. More experience. More defence. www.hhllp.ca Untitled-1 1 www.lawtimesnews.com 13-06-10 10:06 AM

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