Application of the Legislation
Family Homes on Reserves and Matrimonial Interests or Rights Act to First Nations under the First Nations Land Management Act and Self-Government First Nations
Matrimonial property refers to the movable (personal property) and immovable (real property) assets (in other words things that can and cannot be moved) owned by one or both spouses.
Provincial or territorial family laws related to matrimonial personal property, for instance money in bank accounts, cars and boats, apply on reserves. However, in 1986 the Supreme Court of Canada ruled that courts cannot apply provincial or territorial family laws on reserves governed by the Indian Act if doing so would alter individual interests in matrimonial real property such as houses and structures used by the family on reserves. Further, the Indian Act does not address the issue of matrimonial interests and rights. As a result many of the legal protections relating to matrimonial real property applicable off reserves are not available to individuals on reserves.
The Family Homes on Reserves and Matrimonial Interests or Rights Act, (the Act) which received Royal Assent on June 19, 2013, was enacted to fill the gap related to matrimonial real property interests and rights on reserves.
The Act provides matrimonial real property protections and rights for individuals and families on reserves in two ways:
- A mechanism for First Nation communities to enact their own matrimonial real property laws.
- Provisional federal rules, which are in force as of December 16, 2014, provide individuals living on reserves with protections and rights unless or until a First Nation community establishes its own matrimonial real property laws under the Act or other federal legislation.
The mechanism for First Nations to establish their own matrimonial real property laws is set out in sections 7 - 11 of the Act. These provisions came into force by Order in Council on December 16, 2013. Agreement on the content and acceptability of a law would take place between First Nation members and their First Nation governments. All members of voting age, 18 years and over, regardless of where they live, must have an opportunity to vote on the First Nation's proposed matrimonial real property laws. Such laws will still be subject to the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act, as applicable.
From December 16, 2013, when the First Nation law-making authority in the Act came into force, there was a 12-month transition period before the provisional federal rules, sections 12 - 52 in the Act, applied on December 16, 2014. Unless First Nations established their own matrimonial real property laws under the Act during the transition period, the provisional federal rules will apply to all First Nations with reserve land, with the exception of some First Nations under the First Nations Land Management Act or First Nations with a comprehensive self-government agreement including land management. The Act will apply until a First Nation develops its own matrimonial real property law under this legislation or other federal legislative regime.
First Nations Land Management Act
The First Nations Land Management Act, enacted in 1999, was the only legislation - other than legislation implementing self-government agreements dealing with land management - that requires First Nations to address the legislative gap respecting on-reserve matrimonial real property rights or interests. The First Nations Land Management Act and First Nations Land Management Framework Agreement require that laws respecting matrimonial real property rights or interests must be gender-neutral. However, First Nations have typically gone well beyond that criterion by developing laws that cover a broad range of conditions, and in many cases, extend beyond marriage breakdown to transfer of matrimonial rights or interests in land during marriage.
Under the Act
First Nations who were on the schedule to the First Nations Land Management Act operating under their own land code on or before the Act received Royal Assent, June 19, 2013, will not be subject to the provisional federal rules, even if those First Nations do not have laws in force to address matrimonial real property rights or interests in place. Under the First Nations Land Management Act, First Nations have 12 months from the date their land code takes effect to enact the rules and procedures dealing with matrimonial rights or interests in reserve land relating to their land code.
Section 55 of the Act, which came into force on June 19, 2013, contains a three-year exemption for the application of the provisional federal rules for First Nations who were on the schedule to the First Nations Land Management Act before that date, but did not have land codes in force. Any First Nations that have not enacted a land code before the coming into force of the provisional federal rules on December 16, 2014 have until the end of the three-year time frame, June 19, 2016, to enact their laws addressing matrimonial real property rights or interests under the First Nations Land Management Act or under the Family Homes on Reserves and Matrimonial Interests or Rights Act. Following this three-year time frame, the provisional federal rules of this Act will apply until a First Nation's matrimonial real property law is in place.
First Nations who sign onto the Framework Agreement on First Nation Land Management at any point after the provisional federal rules come into force will be subject to those rules until the respective First Nations have their matrimonial real property laws in place.
Matrimonial interests or rights on reserves are addressed in self-government agreements where land management was a subject for negotiations. Self-government agreements that address land management must include, in one way or another, the question of which government has jurisdiction to pass laws relating to matrimonial real property on the lands of the Aboriginal party.
First Nations with reserve lands and a self-government agreement in effect who have jurisdiction over land management and who have acted on that jurisdiction are exempt from the Act because they have negotiated agreements that cannot be unilaterally altered. Regardless of this exemption, pursuant to section 12 of the Act, such self-governing First Nations may ask the Minister to make a declaration that the provisional federal rules apply to them.
The Act will apply to any self-governing First Nation that remains a band under the Indian Act with reserve lands that has negotiated a sectoral self-government agreement which does not include the power to manage their reserves. For example, in Ontario and Alberta, First Nations are currently negotiating self-government agreements to recognize jurisdiction in selected areas such as education, child and family services and governance. As long as these First Nations are bands under the Indian Act and have not concluded self-government agreements that include land management of their reserves, and are not First Nations Land Management Act First Nations, the Act would apply to them.