Matrimonial Real Property (MRP) On Reserve Lands
Online Survey

The Congress of Aboriginal Peoples (CAP) has been invited by the Minister of Indian Affairs and Northern Development, the Honourable Jim Prentice, to participate in a national dialogue to resolve the Indian Act's failure to deal with disputes over Matrimonial Real Property on reserve lands (MRP).

Outside of the reserve context, MRP issues are managed by provincial laws that guarantee that real property (land and homes and other assets tied to land) cannot be disposed of by either party to a relationship that is failing or failed without protection for the rights of the other partner. In all provinces, these rights extend to married persons - they deal with who may possess the marital home during a break-up or in the case of family violence, and prevent either partner from selling the home without providing an equal or equitable share in the home's value to the other partner. In some provinces, these rights are extended beyond formally married partners to common law partners, to Aboriginal customary marriages and to same-sex partnerships.

In this questionnaire, we are asking for your advice and input on what you think is the best way to resolve the outstanding gaps in federal legislation regarding matrimonial property rights on reserve lands. The government of Canada is advancing three main options - the adoption of provincial laws (which vary from province to province), the use of provincial laws with the option of Bands to opt-out of those laws where they create their own laws that meet minimum standards, and a new federal law setting basic standards for MRP rights protection, also with the right of Bands to opt-out of the federal model by adopting their own laws meeting certain standards.

Our main question is simple: which option or approach do you think is most likely to close the gaps in the Indian Act and to help those affected by MRP disputes protect their rights and interests? This may seem to be a fairly straight-forward question, but there are complex issues at play. There are so many flaws and gaps in the Indian Act that amending it on any one issue can invite valid demands to reform the legislation to address other and often closely related problems - like the absence of accountability and governance rules, the failure of the Act to provide appeal mechanisms regarding Band decisions, and major issues associated with the Indian Act's membership and status provisions. In addition, ownership of and rights to homes and land interests on reserve often raise treaty rights issues - since about 50% of all reserves in the country were established originally by treaties. Treaty rights are protected by the Constitution from any negative effect or infringement by ordinary legislation like the Indian Act, and so any change to the Indian Act itself can have un-intended impacts on treaty rights.

To assist you in understanding the issues and options, this questionnaire comes with some information materials as well as a reference glossary. We hope this material is of assistance, and you can find additional background information on the   CAP MRP Web Site
We invite you to think carefully in answering the questions presented - for yourself and for your children and your children's children.

Meegwetch, Patrick Brazeau, National Chief
Mussi, Lillian George, Portfolio Chief


Who Should Complete This Survey?
You should complete this survey if you are included in any of the following categories:
You are an Indian or First Nation person with ties or connections to any reserve community, whether you are status or non-status, a band member or non-band member;
You have experienced a breakdown of a matrimonial, common law or custom relationship where property on reserve has been an issue;
You have directly experienced the effects of an MRP dispute, or know of someone who has experienced such a dispute;

Please Note: Anyone who has views to share on how to provide fairness and legal protection for the individuals involved in matrimonial disputes, family violence on reserve, and the current MRP On Reserve Process should fill in this survey.

What is your gender?
  Male
  Female

In what age group are you?
  Under 16
  16-25
  26-35
  36-55
  Over 55

Please indicate which Aboriginal group or people you identify as (whether you are status or non-status):
  Indian or First Nation
  Métis
  Inuit

If you a member of an Indian Act Band or a First Nation (whether or not an Indian Act Band), please identify that Band or First Nation:

Are you a registered or "status" Indian under the Indian Act?
  Yes, I am registered under the Indian Act
  No, am not an Indian Act status Indian
  I am entitled to "status" but I have not applied to be registered
  My application for registration is still being processed by the government
  I'm not sure if I'm a "status" Indian or not

Do any of your children have registered status under the Indian Act?
  Yes, they all do
  Some do, and some do not
  They all have status, but different types
  None of my children have Indian Act status
  I have no children
  Don't know

Do any of your children have membership in a Band? (Please indicate which statement best describes your children's membership situation).
  They all have membership in my band
  Some have membership in my band, some in their other parent's band
  None of my children have band membership in any Band
  Some of my children have membership, but some do not.

In which province/region do you now live
  

In which province/region is your original Aboriginal community?
  

What is your marital status at present?
  married under provincial law
  traditional or customary marriage
  common law relationship
  divorced 		  separated
  single
  widowed
  same sex/two-spirited relationship

If you have had children, are any of them living with you at present?
  I have no children, or all children have left home
  All children live with me
  Some children live with me, and some with another parent or guardian

Do you think that people who are not band members should be able to continue to live in the reserve community after the breakdown of the relationship?
  Yes, absolutely
  Yes, but only if they have family or children from that community
  No

Do you think it is important to allow homes on a reserve to be owned or co-owned by non-member spouses of band members?
  Yes
  No
  Don't Know

Do you have any specific reason for your view?

Did you experience a breakdown of your marriage or relationship that involved property on reserve?
  No
  Yes

Have you stayed in a relationship -- even if an unsafe one -- in order to avoid losing possession of the marital home on reserve?
  No
  Yes

Did you own or share a home on reserve while married or in your relationship?
  Yes
  No

Was the home in your own community, or that of your former partner's?
  My own community
  My partner's community
  Another community

Did you obtain a share of the value of the home after your relationship broke up?
  Yes, an equal share
  Yes, but less than what I though was fair
  No, I did not receive any share of the home's value

In the reserve community involved, do you know of any formal or informal measures in place to deal with the division of matrimonial real property?
  Yes, there is a formal, independent process
  Yes, but you must be a band member to apply for help
  Yes, but it is an informal process -- it is not enforced by the Band Council or the courts
  No, there is no process in place
  Unsure/Don't know

In your view, how effective or helpful are these measures in the community concerned?
  Very effective and helpful
  Somewhat effective and helpful
  They make no difference
  They make the situation somewhat worse
  They make the situation much worse
  Unsure/Don't Know

In the reserve community involved, do you know of any programs in place to protect spouses and children in the case of marital disputes or family violence (e.g., a women's shelter)
  Yes
  Yes, but I was not eligible for that assistance
  Yes, but I was not confident that my needs or security and safety would be protected
  No
  Unsure/Don't Know

In your view, how effective or helpful are these programs in the community concerned?
  Very effective and helpful
  Somewhat effective and helpful
  They make no difference
  They make the situation somewhat worse
  They make the situation much worse
  Unsure/Don't Know

Which of the following statements are you most in favour of? (Please check one only):
  Laws dealing with matrimonial real property on reserve (MRP) should be the same for all those affected, no matter where they live in Canada
  Laws dealing with MRP issues should vary from province to province, just like they do now for other types of marital property issues
  Laws dealing with MRP issues should vary from Band to Band
  Unsure/Don't Know

Context: Provincial laws dealing with matrimonial disputes already apply on reserve when it comes to most issues -- like child custody and movable property. The big exception is possession or sale of land or homes on the reserve, because the Indian Act now prevents provincial laws from being enforced on reserve. Do you think that the provincial laws protecting equal rights to matrimonial real property should be extended to apply on reserves in that province?
  Yes
  No
  Unsure/Don't Know

Context: Provincial laws dealing with matrimonial property, including real property, vary from province to province. Some provinces do not protect the rights of common law or customary marriage partners, while all provinces protect the rights of formally married couples. Some provinces provide assistance in marital dispute resolution and to protect people from family violence (such as ordering temporary possession of the home for only one spouse), while others do not. Which of the following statements best reflects your view? (Please check only one):
  Provincial laws already deal with most aspects of matrimonial property on reserve (bank accounts, cars, etc.) and so it makes sense to apply provincial laws to the possession and sale of the home as well
  People affected by matrimonial real property issues on reserve should not be treated differently depending upon which province they live in -- they should have the same rights regardless of which province the reserve is in
  Matrimonial property issues like possession or sale of the home should be controlled only by the Band's own laws, and not those of the province or of the federal government

Context: The Indian Act has many flaws and 'gaps', because it is still based on a nineteenth century plan to assimilate Indian people. In addition to the MRP issue, other 'gaps' include discrimination against non-resident members' voting rights, a lack of accountability to band members or protection of individual rights, and the problem of membership and status control. Which of the following statements best reflects your opinion about Indian Act "gaps" and how to address them?
  The MRP issue cannot be fixed by "piecemeal" amendments to the Indian Act. The entire Indian Act needs to be replaced
  Matrimonial property issues are too important to wait for broader change down the road. Action to fix the MRP issue is needed now.
  MRP issues are closely connected to certain other issues -- like band government accountability or status and membership rights. While the entire Indian Act may take time to reform or replace, these closely connected issues need to be addressed together.

What do you think about a new federal law to deal with the issue in the same way all across the country, which would give spouses equal rights to possession or a fair share of the home, but not threaten any break-up of the reserve land-base? (Please check one only)
  Very strongly in favour of federal law in this area
  Somewhat in favour of this approach
  Unsure about this idea
  Somewhat opposed to a federal law handling the issue
  Very opposed to this approach
  Don't Know/Unsure

Context: Some Indian leaders argue that issues like the possession of homes on reserve or requiring the sale of homes to divide its monetary value between couples should not be made subject to either provincial or federal laws. They argue that such issues should be left to the Band to deal with under its "inherent right" to self-government. Which of the following statements best reflects your view? (Please check one response only)
  As long as Bands remain under the Indian Act, and are not self-governing, federal or provincial laws for Matrimonial Real Property should protect marriage or common law/custom partners
  Indian Act Bands should not be required to wait for self-government to be able to control MRP issues like possession or sale of the family home. Band Councils can be trusted to deal with these matters without any federal or provincial rules applying
  As long as Band Councils are under the Indian Act, they should be given the necessary power to pass MRP laws, just as they now pass laws for membership or property taxes. But if a Band Council doesn't pass its own law, fall-back rules to protect MRP rights need to be in place.

Context: Some First Nation leaders have suggested that there is a fourth option to deal with the MRP issue: involving recognition that the issue is already able to be dealt with by existing Chiefs and Councils, or can be resolved as long as existing Chiefs and Councils are recognized as holding the necessary jurisdiction to deal with the matter -- with no need for fall-back federal or provincial laws. How do you feel about this approach, which would involve leaving the matter up to Chiefs and Councils to decide on?
  Very strongly in favour of this approach
  Somewhat in favour of this approach
  Unsure about this idea
  Somewhat opposed to Band Councils being left to handle the issue
  Very opposed to this approach
  Don't Know

About half the reserves in Canada were set up as a result of formal Treaties. Do you believe that the Indian Act should control who has Treaty rights, including rights to treaty-based reserve interests? (Check one response only)
  Yes, the Indian Act should control all reserve-based rights and determine who gets benefits of reserve lands and property, even when that goes against Treaty rights
  No, Treaty rights -- including access to treaty-based reserve lands and property -- should not be extinguished or defined by the Indian Act
  The Indian Act rules on membership, status and property rights on reserve conflict with the spirit and intent of the Treaties that established many reserves. A reconciliation is needed to balance the interests of all those who hold such Treaty rights

Context: The Congress of Aboriginal Peoples and a number of our regional affiliates are actively consulting with off-reserve Aboriginal people on the MRP issue -- and particularly First Nation (status and non-status) people -- to obtain your views. Once these consultations are completed -- by early February, 2007 -- the federal government has announced that it wishes to enter into a "consensus-building" phase of discussions before proceeding to introduce legislation. The Assembly of First Nations and the Native Women's Association of Canada have already been assured a role in this consensus-building phase. Do you think the Congress of Aboriginal Peoples should also participate in the consensus building phase of discussions in order to represent the interests of off-reserve First Nation and other Aboriginal interests?
  Yes
  No
  Unsure/Don't Know

Please feel free to provide us any other comments you wish to share with us on the MRP issue or any other matter of concern to you.

The Congress of Aboriginal Peoples thanks you for completing this MRP On Reserve Lands Online Survey!


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