Law Times

Page 10 November 3, 2014 • Law Times www.lawtimesnews.com FOCUS Deadline nears for matrimonial property laws on reserves Questions remain as First Nations consider own rules or default federal scheme Judy van rhiJn For Law Times T he clock is ticking down towards the Dec. 16 deadline for the regis- tration of homegrown matrimonial property laws on reserves or the application of default rules laid down by the federal government under the Family Homes on Reserves and Matrimonial Interests or Rights Act. The 12-month transition pe- riod has been a challenge for ab- original lawmakers and it's un- clear how the provincial scheme will cope with disputes related to reserves. At this point, there's only one First Nation in Ontario that has completed the process of regis- tering its own laws under the new legislation. There are a number of First Nations with laws registered under the First Nations Land Management Act and others that have laws in place under their own inherent authority with no plans to go through the hoops prescribed by the federal legisla- tion to register them. For the remainder, the default laws will kick in until they en- act their own rules. That means disputes on those reserves will become the responsibility of the local police forces and the courts. The Department of Aborigi- nal Affairs and Northern Devel- opment Canada and the Royal Canadian Mounted Police are managing the preparation for the change. As such, the federal department established the Cen- tre of Excellence for Matrimonial Real Property in early 2014 to dis- seminate information and knowl- edge to First Nations individuals, organizations, governments, and law enforcement officials. Chris Angeconeb, the legisla- tive analysis co-ordinator at the centre, says it has spent the past year providing information and practical assistance to First Na- tions across Canada. It has been conducting three-day workshops since July and also organized a national forum on the techni- cal aspects of matrimonial real property in June. "What goes along with that is the develop- ment of a tool kit for [the matri- monial real property issue] for technical folks at the community level," says Angeconeb. "It sets out a f lowchart to law- making, starting from the deci- sion to make laws and on to rati- fication, including community consultation and work with legal counsel to write the laws." The centre has also prepared a plain-language version of the act and templates of laws for those reserves that use certificates of possession or custom allotment. "The intention is to ref lect the principles contained in the pro- vincial and federal rules and to allow communities to ref lect their own rules," says Angeconeb. "The templates give the full range of options and then they choose." In addition, the University of Alberta is under contract with the centre to research alternative dispute resolution systems, both indigenous and traditional, with a view to preparing examples for communities to adopt. "The idea is that First Nations need to fill that gap," says Angeconeb. "We don't say anything about how they want to deal with it, but if they do want to work under the legislation we have all the materi- als on our web site. There has been very good take-up at the work- shops and there are First Nations that are working through the process. We encourage them to take as much time as is required to develop sound laws." The centre has authority until March 2018 to continue assisting in the lawmaking pro- cess. Its other mandate has been to prepare reserves for the feder- ally imposed default laws. It has recently published a pamphlet that outlines the responsibilities of chief and council under pro- vincial and federal rules. "As soon as Dec. 16 comes around, the provincial rules come in," says Angeconeb. "There may be some issues on the ground at first. The provinces are respon- sible for any issues in court." Public Safety Canada has the start date in view. In late July, it solicited tenders for an organiza- tion to provide training to police forces other than the RCMP as it has its own program. The orga- nization will have four years to develop and implement edu- cational materials and training supports for First Nations police services. Enforcement issues are at the top of the list of concerns for Teresa Edwards, director of in- ternational affairs and human rights at the Native Women's Association of Canada. She says that while the centre has done a good job of reaching out to com- munities across Canada, the or- ganization has its concerns. "The government clearly didn't allo- cate enough capacity building for First Nations to make their own laws nor the resources to implement them on the ground." Edwards believes the default laws are setting the communi- ties up for failure. "They need the same tools in place as provinces and territories: research, policy, legal aid, and community pro- grams. They are imposing the same laws as other Canadians have without the same supports." Edwards' main concern is the risk of violence, particularly for women. "It's a recipe for disaster. The legislative tools and founda- tional pieces are not in place for enforcement to occur in a success- ful way. The police aren't trained. There are no support services for women such as shelters, counsel- ling, and mediation. The neigh- bouring provinces and territories will be besieged in systems that are already packed and backlogged." Edwards points to the f lood of claims that has occurred since the Canadian Human Rights Act came into effect on reserves. "Any growing pains will be at the cost of women and children's lives," she says. Angeconeb, however, is opti- mistic. "I wouldn't say I'm positive about enforcement but I am hope- ful that there is some assistance for families," says Angeconeb. "If you are talking about crim- inal-related activity, the Criminal Code is always there as a baseline. To provide protection for families through the emergency protec- tion orders provided for in the act, a bit more is required. There will be challenges in implementation, but I think we'll get there." LT Federation of Law Societies of Canada 2014 Family Law Program Fairmont Whistler British Columbia July 14-17 2014 Mark Your Calendar! Please visit www. sc.ca http://www. sc.ca/en/national-family-law-program/ for information updates Special rates have been negotiated at the Fairmont Whistler from 199.00 single or double. Bedroom room block rate includes July 12 to 18, 2014. The conference rate is also available three days prior and three days after the group dates at the contracted group rates based on availability. Reservations link: https://resweb.passkey.com/go/n c2014 or call the Fairmont Whistler Inhouse Reservations Department at 1-800-606-8244 to make reservations. Callers should identify themselves as being with the National Family Law Conference or group code "0714FLSC" in order to receive the group rates. Federation of Law Societies of Canada National Family Law Program FederationofLaw_LT_Nov4_13.indd 1 13-10-30 11:28 AM Your proposal must be received no later than May 30, 2015 Please submit your Family Law proposal by mail to: Heather Walker Program Co-coordinator P.O. Box 244 Woodville, ON K0M 2T0 or E-mail: nationalfamilylawprogram@sympatico.ca ( Please identify the proposal as a submission for the 2016 program on the re line of the e-mail) Note: Presenters will receive a contribution toward travel and accommodation expenses. National Family Law Program 2016 Federation of Law Societies of Canada 2016 National Family Law Program Location: Atlantic Canada CALL FOR PAPERS Planning for the National Family Law Program in 2016 is underway. We are inviting submissions of proposals for Papers/Presentations under the following guidelines: 1. One page outline of topic(s), format of presentation and estimated time for presentation or workshop. 2. Your agreement to provide an original written paper on the topic(s) by May 30, 2016. 3. Your agreement to participate in other presentations as workshop leader or panelist if required. 4. Please include a copy of your curriculum vitae and co-presenters with your submission. Please print clearly Name: ___________________________________________ Firm: ____________________________________________ Address: _________________________________________ City: _____________________________________________ Province: ________________________________________ Postal Code: ______________________________________ Telephone#:(____) _________________________________ Fax#:(_____) ______________________________________ E-Mail: ___________________________________________ I wish to receive more information about the program when available. Please send this form to: Heather Walker Program Coordinator National Family Law Program Federation of Law Societies P.O. Box 244 Woodville, ON K0M 2T0 Phone: (705)879-3082 (message centre) E-mail: nationalfamilylawprogram@sympatico.ca

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