Aboriginal policy reform and the subsidiarity principle: a case study of the division of matrimonial real property on Canadian Indian reserves.

Abstract: According to the Indian Act, aboriginal women in Canada do not have the same equality rights as aboriginal men living on-reserve and non-aboriginal women living off-reserve. The Indian Act's provisions governing the division of matrimonial real property on Canadian Indian reserves have dispossessed many aboriginal women of their property entitlements during and after separation and divorce proceedings. Despite the existence of this problem for the last fifty-five years, the Indian Act has proven highly resistant to reform. A number of First Nations, however, have recently been able to address this issue by developing local matrimonial property laws through the First Nations Land Management Act, a federal piece of legislation that is separate from the Indian Act. Not only have these local laws provided solutions to a policy problem left unaddressed by the federal government, they have also given aboriginal women greater equality rights during and after divorce proceedings while respecting local preferences. This article argues that government and aboriginal policy-makers should consider making greater use of the subsidiarity principle when engaging in reforms to the Indian Act.

Sommaire : Aux termes de la Loi sur les Indiens, les femmes autochtones au Canada n'ont pas les memes droits a l'egalite que les hommes autochtones dans les reserves et que les femmes non autochtones hors des reserves. Les dispositions de la Loi sur les Indiens regissant la division des biens immobiliers matrimoniaux sur les reserves indiennes canadiennes ont depossede de nombreuses femmes autochtones de leurs droits de propriete pendant et apres les procedures de separation et de divorce. Alors que ce probleme existe depuis 55 ans, il se trouve que la Loi sur les Indiens a fortement resiste a la reforme. Cependant, un certain nombre de Premieres nations ont reussi recemment a aborder ce probleme en elaborant des lois locales sur les biens matrimoniaux par l'intermediaire de la Loi sur la gestion des terres des premieres nations, texte de loi federal distinct de la Loi sur les Indiens. Non seulement ces lois locales ontelles apporte des solutions a un probleme de politique que le gouvernement federal n'avait pas regle, mais elles ont egalement donne aux femmes autochtones de plus grands droits en matiere d'egalite pendant et apres les procedures de divorce tout en respectant les preferences locales. Le present article indique que le gouvernement et les decideurs de politiques autochtones devraient envisager faire un plus grand usage du principe de subsidiarite lorsqu'ils entreprennent des reformes de la Loi sur les Indiens.

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Over the last twenty years, there has been a growing consensus among members of the aboriginal policy community that the Indian Act needs to be replaced or at least significantly reformed. Despite this growing consensus, the Indian Act has proven highly resistant to reform and replacement. For instance, the last major attempt to overhaul the Indian Act was in 2001-02 when the federal government tried to pass the First Nations Governance Act, a comprehensive legislation that sought to modify on-reserve election rules, voting eligibility, and spending regulations, among other things. In the end, the federal government abandoned the First Nations Governance Act after a number of aboriginal leaders successfully mobilized significant opposition against it.

The durability of the Indian Act has generally had a negative effect on aboriginal peoples in Canada, and most particularly on status-Indian women. (1) Until 1985, for instance, the Indian Act mandated that Indian status could only be passed patrilineally (through aboriginal fathers), meaning that any status-Indian woman who married a non-status man had to give up her Indian status. Moreover, any children produced by that marriage could not gain Indian-status through their mother. In 1985, the federal government attempted to correct this gender discrimination by passing Bill C-31, with mixed results. Bill C-31, An Act to Amend the Indian Act, allowed any woman who had lost her status through marriage to apply to have her status re-instated. Her children could also regain Indian status but her grandchildren could not. In contrast, Indian men who had married non-Indian women could pass their Indian status to their children and to their grandchildren. (2)

A more significant problem is the Indian Act's provisions governing the division of matrimonial real property on Canadian Indian reserves. On many Indian reserves, due to patriarchal legacies, aboriginal men are frequently the sole possessors of matrimonial real property. (3) In the event of a divorce, provincial laws that would have allowed the courts to dispose of matrimonial interests in a fair and just manner are inapplicable because Section 24 of the Indian Act states that only the property holders and the minister of Indian affairs can engage in and approve land transactions involving reserve lands. (4) Despite the existence of this problem for over fifty-five years, the federal government has been unable and/or unwilling to amend the Indian Act to address this policy problem.

Although efforts at a universal solution have stalled, there have been some recent promising developments based on the principle of subsidiarity. This principle states that local units should have sole jurisdiction over a policy area unless a higher-level unit can administer the policy area more effectively. (5) In 1999, the federal government passed the First Nations Land Management Act (FNLMA), (6) allowing fourteen signatory First Nations to take greater control over the management of their reserve lands without repealing the Indian Actor negotiating treaties. Under the FNLMA, only signatory First Nations can opt out of the land management provisions of the Indian Act to develop their own land codes. Among other things, the land codes must provide for rules governing the division of matrimonial real property on Canadian Indian reserves. Of the eighteen FNLMA land codes currently in effect, seven First Nations have developed matrimonial property laws and the rest are currently drafting their laws. (7)

This article examines four First Nations' matrimonial property laws in terms of their ability to address the unequal provisions governing the division of matrimonial real property on Canadian Indian reserves. Based on this case study, the main argument here is that policy-makers should make greater use of the subsidiarity principle to reform the Indian Act. The article begins with a brief discussion of the principle of subsidiarity and its applicability to Canadian public policy. It then presents the case study by first describing the unequal rules governing the division of matrimonial real property on Canadian Indian reserves. Next, the article notes the emergence of seven matrimonial real property laws at the local level developed through the FNLMA (thus filling a policy void that has been unaddressed at the national level) and then assesses four of the laws in terms of their ability to produce division of matrimonial property rules that effectively balance national interests (gender equality) with local preference. The article concludes by arguing that the principle of subsidiarity, as found in the FNLMA model, offers policy-makers two distinct advantages over universal, national solutions. First, the model encourages policy action by relying on First Nations to voluntarily opt into a policy regime rather than being forced into a national solution. Second, the model permits First Nations to craft policy solutions that balance national interests with local rules that respect local traditions, customs, values, needs and interests in ways that are more effective and desirable than national, universal solutions like the Indian Act.

The principle of subsidiarity and Canadian public policy

Aboriginal policy remains one of the most highly politicized fields in Canada. Unlike other policy fields, aboriginal policy is steeped in a history of colonial, paternal and ethnocidal relations between aboriginal and non-aboriginal peoples. Indeed, the Indian Act, which is the main federal legislation governing aboriginal life on Canadian Indian reserves, continues to exist despite its harmful effects on aboriginal peoples. Although aboriginal and non-aboriginal peoples have long condemned this legislation, "it has not proven possible to repeal it, for lack of agreement on what would replace it." (8)

One potential solution to this policy paralysis is to apply the principle of subsidiarity, which has received significant scholarly attention as a result of its inclusion in the 1993 Maastricht Treaty on European Union. Thomas Hueglin points to Article 3b of the treaty to define the concept of subsidiarity, which states that "the European Community can only take action in a concurrent policy field if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community." (9) Andreas Follesdal observes that the principle of subsidiarity, as specified in the European Union treaty, is a normative vision of multilevel governance in which "powers or tasks should rest with the lower-level sub-units ... unless allocating them to a higher-level central unit would ensure higher comparative efficiency or effectiveness in achieving them." (10) Hueglin defends this normative vision, emphasizing that subsidiarity is not only justifiable in terms of achieving efficiency and effectiveness but also in terms of necessity, especially in policy areas that are contentious and complex. (11) Initially, for instance, European actors balked at the idea of subsidiarity but over time have embraced it "as the decisive constituting element in the search for a final outcome of the [European] integration process." (12)

Despite its popularity in Europe, the principle of subsidiarity has been virtually ignored by Canadian scholars and policy-makers. Yet Hueglin argues that Canada would be an ideal candidate for adopting this principle because of "its sub-constitutional reliance on pragmatic and negotiated governance agreements--such as the Social Union Framework Agreement." (13) He suggests that contentious issues like healthcare would be a perfect policy arena in which to employ this principle. Specifically, health-care jurisdiction should be assigned by relying on the principles of efficiency, effectiveness and necessity, with a preference for local delivery. (14) Doing so would allow for effective policy action in a policy field that is usually highly contentious and sometimes subject to paralysis.

Recently, Canadian policy-makers have adopted the principle of subsidiarity, albeit in a modified form, to address the unequal rules governing the division of matrimonial real property on Canadian Indian reserves. In the following sections, I examine these efforts and argue that the principle of subsidiarity is particularly advantageous in situations where the federal government is unwilling and/or unable to act, usually as a result of territorially bound stakeholders or constituents who have a diversity of opinions regarding the nature of policy reform. Subsidiarity is also desirable because it encourages policy experimentation and policy action in situations where change is difficult to achieve due to historical legacies rooted in paternalism and colonialism.

A case study of the FNLMA and the division of matrimonial real property on Canadian Indian reserves

Legal framework

The unequal rules governing the division of matrimonial real property on Canadian Indian reserves flow from Section 91(24) of the Canadian Constitution, which gives the federal government sole jurisdiction over "Indians, and Lands reserved for Indians." The federal government has exercised this jurisdiction by passing the Indian Act, a piece of legislation governing a wide range of life on Canadian Indian reserves. In essence, the Indian Act states that all Indian reserve lands are owned by the Crown to be occupied and lived on by Indian bands. In practice, band councils, acting on behalf of the band as a whole, exercise primary usage and occupancy rights. Individual ownership of reserve lands by band members can take two forms: customary rights and certificates of possession. Under customary rights, the band council or the community may recognize that a particular person has usage and occupancy rights to an individual tract of land. (15) Customary rights, however, provide little, if any, security of tenure because the courts have refused to recognize their existence or enforceability. (16) In practical terms, a customary right is either created and/or exists at the discretion of the band council and/or is publicly recognized and tolerated by community members as belonging to a band member. The band council, however, can at any time evict or restrict a member's use of his land. In one case, a band council evicted a member from his land in order to build a school on it. Other First Nations have evicted band members from customarily held lands when oil and gas reserves were found on them. In these cases, the band councils provided the occupants with monetary compensation although they were under no legal obligation to do so. (17)

The second main ownership regime available to band members is the certificate of possession, which are allotted to individuals through band council resolutions. Once the allotment is approved by the minister of Indian affairs, the department issues the individual a certificate. A certificate of possession gives its holder possession rights to a parcel of reserve land that is stronger than a customary right, mainly because its existence is derived from the Indian Act. As a result, Canadian courts have been much more willing to enforce certificates of possession against intrusions by band members, non-band members, and even the band council. (18) This certificate, however, does not grant its holder fee-simple ownership rights, since transactions involving certificates of possession, such as land transfers, leases and wills, are subject to the approval of the band council, the minister of Indian and northern affairs, or the approval of both, depending on the transaction. (19)

Ordinarily, in the event of a marriage breakdown off-reserve, spouses who own matrimonial real property have access to provincial laws that allow Canadian courts to award or dispose of their matrimonial property in an equitable and just manner. For instance, even if a husband's name was the only name on the ownership papers, the wife could still gain possession of the matrimonial home, depending on the nature of her contributions to the marriage and the home, and whether she had custody of the children, among other factors. Provincial matrimonial property laws, however, are inapplicable on Canadian Indian reserves because they contravene the Indian Act's provisions on land transfers, found under Section 24: "An Indian who is lawfully in possession of lands in a reserve may transfer to the band or another member of the band the right to possession of the land, but no transfer or agreement for the transfer of the right to possession of lands in a reserve is effective until it is approved by the Minister" (emphasis added). Moreover, Section 88 of the act states that "all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act...." (emphasis added). The result of these sections is that Canadian courts cannot award possession of matrimonial on-reserve real property during separation and divorce proceedings.

In practical terms, this means that holders of customary rights must seek arbitration from the band council, which can be problematic if a community is male dominated, has a male-dominated band council, or if the band council is struggling with nepotism. Indeed, research has suggested that aboriginal leadership tends to be male, that much of the real property on reserves is held by male band members, and that nepotism is widespread on most Canadian Indian reserves. (20) Moreover, arbitration by the band council can be problematic if the band council decides to repossess the property rather than divide or award it to one or both spouses.

If the spouses hold matrimonial real property under a certificate of possession, the situation is not much better. Canadian courts cannot order the division of a certificate of possession nor can they award it to the spouse whose name is not on it. As mentioned above, Section 24 of the Indian Act only allows band members in lawful possession of a certificate of possession to transfer it to another band member. Moreover, a transfer can only become legal if the minister of Indian affairs approves it. (21) For spouses whose names do not appear on the certificate, these rules are unsatisfactory because, in general, reserve lands are in high demand and in short supply. In the event of a divorce, these spouses are forced to move off reserves unless they have family or friends with whom they can live. In general, spouses affected by this problem tend to be aboriginal women because historically, as mentioned previously, aboriginal men were usually the sole holders of certificates of possession and of other forms of individual property on Canadian Indian reserves.

The FNLMA and the emergence of First Nations' matrimonial property laws

In 1994, a number of chiefs, led by Robert Louie (Westbank First Nation), Austin Bear (Muskoday First Nation), and Strater Crowfoot (Siksika First Nation), approached then-Indian affairs minister Ron Irwin about the possibility of fourteen First Nations opting out of the land management provisions of the Indian Act to develop their own land management administrative regimes under a new legislative framework. The result was the First Nations Land Management Act, which allowed its signatory First Nations to develop land codes that addressed the following issues:

(a) the use and occupancy of First Nation's land, including licences, leases, and allotments under s. 20(1) of the Indian Act; (b) the transfer of land interests and the revenues from natural resources obtained from reserve land; (c) requirements for accountability to First Nation members for land management and moneys derived from reserve land; (d) community consultation processes for the development of rules respecting matrimonial property issues, use, occupation and possession of First Nation land and the division of interests in First Nation land; (e) publication of First Nation laws; (f) conflicts of interest in the management of First Nation land; (g) the establishment of a forum for the resolution of disputes in relation to interests in First Nation land; (h) granting or expropriating interests in First Nation land; (i) delegation by the council of its authority to manage land; (j) approvals of an exchange of First Nation land; and (k) amending the land code (emphasis added). (22)

The inclusion of jurisdiction over matrimonial property in the FNLMA was the result of three factors. First, Chief Robert Louie was highly motivated to have his band gain control over matrimonial property because two of his band members had gone to the Supreme Court of Canada to resolve a bitter dispute over their matrimonial property. (23) As such, he was highly cognizant of the fact that a jurisdictional "black hole" in the Indian Act was causing significant harm to members in his community. Second, seeing that the federal government had no plans to address this policy problem anytime in the near future, the negotiating chiefs were keen on ensuring they had the jurisdiction to fill this policy void. Third, the federal government was more than happy to give the signatory First Nations jurisdiction over this issue because the British Columbia Native Women's Society had sued the federal government in 1996-97 over the Indian Act's failure to provide rules governing the division of matrimonial property. Federal policy-makers saw the FNLMA as an opportunity to show interested stakeholders that the federal government was going to address this problem in some way. (24)

Since 1999, forty-one bands have opted into the FNLMA, ninety have inquired about doing so, eighteen have their land codes, and seven have passed matrimonial property laws. (25) The next section of this paper analyses the matrimonial real property laws of the Chippewas of Georgina Island First Nation (Ontario), the Muskoday First Nation (Saskatchewan), the McLeod Lake Indian Band (British Columbia), and the Whitecap Dakota First Nation (Saskatchewan) to show how their laws balance national objectives with local traditions, cultures, values, needs and interests to fill a policy void previously ignored by the federal government.

Chippewas of Georgina Island First Nation

The Matrimonial Real Property Law of the Chippewas of Georgina Island First Nation was one of the first to be developed under the FNLMA, coming into effect on 30 June 2001. The First Nation has a land base of 1,357 hectares and, according to Department of Indian Affairs' First Nation Profiles database, has 89 males and 96 female band members living on-reserve and 242 males and 250 female band members living off-reserve. (26) The Matrimonial Real Property Law is divided into six main sections: a "Preamble"; "Part I: Application of Law"; "Part II: Domestic Contracts"; "Part III: Compulsory First Nation Mediation"; "Part IV: Access to a Court of Competent Jurisdiction"; and "Part V: General Provisions." The preamble states that the First Nation "intends to honour its undertaking to prove rights and remedies, without discrimination on the basis of sex, with respect to spouses who have or claim interests in First Nation land upon the breakdown of their marriage" (emphasis added). It encourages spouses to come to mutual agreement with regard to the division of matrimonial real property and, failing that, that they submit to mediation and have access to a "court of competent jurisdiction."

In essence, the four principles laid out in the preamble-applying the law without discrimination on the basis of sex; respecting and encouraging mutual agreements; enforcing compulsory mediation; and allowing access to Canadian courts-are the main components of the Georgina Island First Nation matrimonial real property law, and, indeed, of most of the laws studied in this article. Part I of the Georgina Island law states that the law applies only to interests in First Nation lands and does not limit any right or remedy available to the spouses regarding interests in lands off-reserve. Part II encourages spouses to engage in domestic contracts, which in essence specifies each party's "use, possession, occupancy, disposition or partition of an interest in First Nation land, including an interest that is a matrimonial home" (Section 6). Such contracts, according to Section 8, are "valid, binding and enforceable." However, if a party fails to disclose all of his or her interests in First Nation lands, does not fully comprehend the nature of a provision, or if the provision is somehow in contravention of the law of contract, then Section 10 allows a court of competent jurisdiction to set aside a provision within the domestic contract.

In the absence of a domestic contract, Part III states that the parties submit to mediation with respect to matrimonial interests in First Nation lands (Section 12). To initiate mediation under the law, Section 14 requires a member to serve notice to his or her spouse and the band council that he or she has requested compulsory mediation. The band council, under Section 17, can then make available a mediator from a list of qualified mediators to assist the parties in amicably dividing their matrimonial interests. If the mediation is successful, Section 18 requires that the parties list the terms of their mediation in their separation agreement, with all relevant property transferred according to the rules set out in the Georgina Island land code. If mediation is unsuccessful, then under Section 21, the mediator must send confidential reports to the parties and the band council listing the issues that remain unresolved. At the end of the mediation, the band council shall issue a certificate of compliance to each of the parties indicating that Part III of the law was satisfied. If one party refuses to comply with mediation, the band council can issue a waiver of compliance under Section 13(g), allowing the cooperating spouse to seek redress from a court of competent jurisdiction.

In the event of an unsuccessful mediation, Part IV of the law allows the spouse who holds a certificate of compliance or waiver to apply to a court of competent jurisdiction (either the Ontario Superior Court of Justice or the Unified Family Court of Ontario) to arbitrate their differences (Sections 25 and 27). One of the key provisions in this part, and thus worth quoting, is Section 28, which states that "[s]ubject to this law, a court of competent jurisdiction may deal with interests in First Nation land held by either spouse, or both spouses, in manner [sic] consistent with the provisions of the Family Law Act (Ontario) relevant to the ownership, possession or occupancy of real property, the division of interests in real property, and net family property representing the value of interests in real property." For greater certainty, Section 37 allows the court to issue "a) an order declaring the right of possession to the interest in First Nation land."

Part IV also has a section that deals specifically with the matrimonial home. Re-affirming the law's commitment to the importance of gender equality with respect to matrimonial real property, Section 46 states that "[s]ubject to the limitations inherent in the nature of First Nation land, both spouses have an equal right to possession of a matrimonial home." Section 52 confirms that the court has the power to award an interest in the matrimonial home; the court may "(a) order the delivery, safekeeping, and preservation of the interest in First Nation land that is a matrimonial home; (b) direct that one spouse be given exclusive possession of the interest in First Nation land that is a matrimonial home, or part of it for such period as the court may direct consistent with the law.... (c) authorize a disposition or encumbrance consistent with First Nation law of a spouse's interest in First Nation land that is a matrimonial home." Section 52(b) is important because it allows the court to award either spouse, regardless of whether his or her name appears on the ownership papers, temporary or permanent exclusive possession of the matrimonial home. Overall, what these sections basically do is empower Canadian courts to treat on-reserve matrimonial real property as they would off-reserve property, essentially eliminating the unjust rules generated by the Indian Act.

The court, however, does not have carte blanche to award interests as it pleases. Besides being guided by relevant provincial laws under Section 28, Section 53 states that the court "shall be guided by the principle that the custodial parent of a child should have exclusive possession of the family residence for a period sufficient to ensure that the child, or the youngest child ... reaches the age of majority and has the opportunity to complete his or her education, provided that observance of this principle is consistent with the best interests of the child." If the spouses have joint custody, then the parent whose home is the principal residence for the child shall be favoured. If neither parent's home is the principal residence, then the court shall be neutral with regard to this section (Section 54). Moreover, when awarding an interest under these sections, Section 55 directs the court to take into account the fact that the child or children may not be band members.

Finally, Section 57 of Part V of the Matrimonial Real Property Law simply reiterates that a spouse must engage in compulsory mediation before seeking legal redress. Section 58 allows the court to fine a person who contravenes the law, up to a maximum of $5,000. Alternatively, it can impose a maximum imprisonment term of three months, or impose both.

Overall, the law is an attempt to balance the principle of gender equality with the desire to respect local customs and preferences in solving the problems inherent in the division of matrimonial real property on Canadian Indian reserves. The Georgina Island law has four important features worth emphasizing. First, it establishes the principle of gender equality (Section 46) and gender neutrality (Preamble) in the division of matrimonial real property. Second, Section 53 directs the court to be guided by who has custody of the children when awarding exclusive possession of the matrimonial home. This, and the section directing the court to consider whether the children are members, reflects the desire of the community to give aboriginal children every opportunity to stay on the reserve. Third, the law encourages members to use two alternative dispute resolution mechanisms (domestic contracts and compulsory mediation) before allowing them to access a court of competent jurisdiction. This reflects the desire of the community to deal with their problems internally before turning to external institutions for arbitration. Finally, in the event that alternative dispute resolution mechanisms fail, the law allows the spouses to seek the assistance of Canadian courts, which have modified powers under the band's Matrimonial Real Property Law, to resolve their dispute. This provision reflects the community's desire to ensure that their members do not continue to suffer from the unjust rules governing the division of matrimonial real property on Canadian Indian reserves under the Indian Act.

Muskoday First Nation

The Muskoday First Nation, like the Georgina Island First Nation, was one of the original signatories to the First Nations Land Management Act and one of the first First Nations to enact a matrimonial real property law, doing so on 30 June 2001. The Muskoday First Nation has a land base of 9,686.8 hectares and is located twenty kilometres southeast of Prince Albert in the province of Saskatchewan. In terms of population categorized by gender, the Muskoday has 276 male and 263 female band members living on-reserve and 429 male and 533 female band members living off-reserve. Overall, the Muskoday First Nation Matrimonial Real Property Law is almost identical to the Georgina Island law. Both laws respect and encourage the use of mutual agreements between the spouses. In the event of a marriage breakdown and the lack of a mutual agreement, the spouses must submit to compulsory mediation. If compulsory mediation fails, then they may seek redress from a court of competent jurisdiction, which in Saskatchewan is the Family Law Division of the Saskatchewan Court of Queen's Bench. This court, like the Ontario court, has the power to deal with interests in the Muskoday's lands in accordance with Saskatchewan's Matrimonial Property Act, 1977 (27) (Section 33). Specifically, the court has the power to order transfers and the disposition of matrimonial property, as well as the exclusive temporary or permanent possession of a matrimonial home to either spouse (Sections 38, 42 and 57). Section 58 states that if children are involved, then the court must take them into account in the same manner as in the Georgina Island law. Section 51 of the Muskoday code also reaffirms, for greater certainty, that both spouses have the right to equal possession of the matrimonial home.

There are, however, some differences between the two laws. Instead of the phrase "domestic contracts," the Muskoday law uses "interspousal contracts" to describe mutual agreements between spouses regarding the use, occupancy and disposition of matrimonial property. In contrast to Georgina Island's band council having jurisdiction over mediation, Section 14 of the Muskoday law delegates this authority to the Muskoday Lands Advisory Board. This committee, which is formed under the authority of the Muskoday land code with the task of advising the band council on all issues related to Muskoday First Nation lands, is made up of seven band council-appointed members, one of whom must reside off-reserve. Another difference is Section 13 of the law, which states that a council member must meet with the spouses to explain the mediation process. Other differences include Section 20, which requires compulsory attendance of the spouses when they are served notices of mediation appointments, and Section 21, which states that the spouses must share the costs of mediation equally between them.

In essence, the Muskoday Matrimonial Real Property Law is very similar to the Georgina Island law and, on some fronts, represents an improvement. One slightly improved feature is the delegation of authority over compulsory mediation to the lands advisory committee rather than to the band council. Any mechanism that distances the administration of reserve land from the band council is an improvement because it insulates the land administration process from undue influence. (28) Although it is true that there is still the potential for political influence, since the committee is appointed by the band council, the spouses do have a number of options to mitigate any such influence. For instance, they can still meet the requirements of Part III (attending meetings at the scheduled times and disclosing all relevant information), come to an unsuccessful mediation, and apply to a court of competent jurisdiction for redress. Moreover, Section 32 of the Muskoday law states that a court of competent jurisdiction can hear a petition for redress when "the requirement for mediation may result in an injustice." Although the Georgina Island band council is the administrator of the mediation provisions of that law, their band members also enjoy the options described above. (29)

Other differences in the Muskoday law include compulsory attendance, information sessions by a council member prior to mediation, and the equal sharing of costs by the spouses. Compulsory attendance is not very significant, since, under the Georgina Island law, if a member refuses to cooperate, the spouse can still apply to a Canadian court for redress. On the other hand, the requirement that a band council member must meet with the spouses to inform them about the mediation process is valuable, especially if a band council is reluctant about doing so. Laws that do not have such requirements, like Georgina Island's, however, must still be made available to band members and for public consumption because the First Nations Land Management Act requires them to do so. Therefore, a band member can still access the relevant information about the band's matrimonial property law from a reluctant band council. Finally, the sharing of mediation costs is significant, since it removes a barrier to mediation a spouse with little wealth might face. Neither the Georgina Island law nor the Muskoday law makes mention of what happens if the parties cannot afford mediation.

McLeod Lake Indian Band

The McLeod Lake Indian Band completed its land code under the FNLMA on 20 May 2003. Its Matrimonial Real Property Act came into effect on 20 May 2004. The Indian band has a land base of 20,053 hectares on twenty reserves and is located 140 kilometres north of Prince George in the province of British Columbia. The Indian band has 450 band members.

In essence, the McLeod Lake law is very similar to the laws of Georgina Island and the Muskoday First Nations. The McLeod Lake law preamble stresses that "each spouse should have an equal right to possession of the matrimonial home." Part II states that the band will respect and encourage interspousal contracts. In the event of a marriage breakdown and in the absence of an interspousal contract, then the spouses must submit to compulsory mediation under Section 14. As at Muskoday, the McLeod Lake law delegates jurisdiction over the administration of mediation to the band's land management committee, also appointed by the band council. Spousal attendance at mediation meetings is compulsory under Section 26, and costs are to be shared equally between the spouses, under Section 27. If mediation is successful, then the terms of the mediation must be set in writing as part of the separation agreement, and land is to be disposed of in accordance with that agreement and through applicable laws (Section 29). If mediation fails, then the mediator must distribute confidential reports to the parties and the band council, listing all outstanding issues between the parties. Regardless of the outcomes, Section 33 states that the band council shall issue a certificate of compliance or waiver to the relevant parties.

As in the previous two laws, after unsuccessful mediation, the spouses may seek redress from a court of competent jurisdiction (Section 35), which in British Columbia is the British Columbia Supreme Court. Under Section 39, the courts may, with evidence of compliance with the mediation provisions in the band's Matrimonial Real Property Act, determine interests in band lands according to the British Columbia Family Relations Act, (30) which in essence means they can determine the ownership, possession, occupancy and disposition of matrimonial property on-reserve as they would off-reserve. For greater certainty, the courts also have similar powers over matrimonial homes on the reserve, under Sections 61 and 62, and must take into account any children involved, under Sections 63 and 65.

In terms of the differences between the law in McLeod Lake and that in Georgina Island and Muskoday, the McLeod Matrimonial Real Property Act places a stronger emphasis on gender equality. The preamble states that, in addition to each spouse having an equal right to possession of the matrimonial home, "(c) each spouse should be entitled to an undivided half interest in the matrimonial home as a tenant in common"; Section 55 states that "both Spouses have an equal right to possession of a Matrimonial Home." Part I, Section 3 states that "Spouses are [to be] dealt with equitably on the basis of all their respective circumstances, including rights, entitlements and obligations in respect of Interests in Band Land." In the Georgina Island and Muskoday laws, gender equality was emphasized in only two sections (the preamble and one provision under access to a court of competent jurisdiction), whereas the McLeod Lake law emphasizes it in several sections. This variation in emphasis reflects the freedom that First Nations have under the FNLMA to design their land laws in accordance with their own local customs, traditions and community desires.

This freedom to design land laws in accordance with local desires and customs is also illustrated in the preamble of McLeod Lake's law, which states that "(e) no person is entitled to hold a permanent interest in Band Land." This provision, as well as other provisions such as Section 10, reflects the desire of McLeod Lake to resist movements towards adopting property tenure that lasts longer than a life estate interest (an interest that terminates upon the death of the holder). Previous research has indicated that many First Nations across Canada are suspicious of fee-simple ownership on reserves, preferring the use of customary rights or, to a lesser extent, certificates of possession. (31)

Whitecap Dakota First Nation

The Whitecap Dakota First Nation's land code took effect on 1 December 2003 and its matrimonial law in December 2004. The First Nation, which is 26 kilometres south of Saskatoon in the province of Saskatchewan, has a land base of 1,988 hectares, with 118 male and 116 female members living on-reserve. Its off-reserve population includes 108 male and 137 female members.

The Whitecap Dakota Matrimonial Real Property Law is similar to the three laws examined above except in a couple of important respects. In terms of similarities, their law stresses gender equality, stating that the First Nation intends to administer this law "without discrimination on the basis of sex" while formally ensuring that "both Spouses have an equal right to possession of a family home" (Section 26). It also encourages and respects interspousal contracts and views them as "valid, binding, and enforceable" (Section 9). It allows for a court of competent jurisdiction (Family Law Division of the Saskatchewan Court of Queen's Bench) to adjudicate disputes in a manner consistent with off-reserve practices (Sections 11 and 14). The court also has the power to award exclusive temporary or permanent possession of the matrimonial home to either of the spouses, although it must take into account the interest of any children involved (Sections 30 and 31).

The Whitecap Dakota law is different from the other laws in that it does not have a section on compulsory mediation. It encourages and respects interspousal agreements and, failing that, allows the spouses to access a court of competent jurisdiction for redress. Another difference is in the preamble, which affirms that the First Nation has "inherent rights, customs and traditions, including Aboriginal rights such as the right to self-determination."

These two differences are not major ones, but they do reflect the type of variation that the FNLMA allows First Nations to engage in when designing matrimonial real property laws. In the case of the Whitecap Dakota law, the variations do not weaken the protections afforded to its band members in the event of a marriage breakdown. The preamble still calls for the application of the band's law without discrimination on the basis of sex, and Section 26 states that both spouses have an equal right to possession of the matrimonial home. Moreover, the parties, in the absence of an interspousal agreement, still have the option of seeking redress from a Canadian court whose powers are modified to avoid the legal entanglements involved with transfers of interests in reserve land inherent in the Indian Act regime. The variations, then, reflect the band's desire to not set up and administer compulsory mediation, preferring to let individual band members work it out between themselves or through Canadian courts. Allowing members to petition Canadian courts, however, does not mean that the First Nation is ceding any of its aboriginal rights. Hence, the Whitecap Dakota law stresses that despite the passage of its Matrimonial Real Property Law, the First Nation retains all of its inherent aboriginal rights, traditions, customs and beliefs, including its right to self-determination.

Conclusion

This article has argued that the principle of subsidiarity holds significant promise for policy-makers interested in aboriginal policy reform. Specifically, policy-makers should consider establishing separate legislative frameworks based on the FNLMA model to allow signatory First Nations to opt out of the Indian Act to pursue specific and locally based policy reforms. The FNLMA model provides policy-makers with two distinct advantages over universal solutions. First, the model encourages the development of policy solutions in situations where national-level issues are highly complex, subject to diverse interests, and are unlikely to lead to federal action. By moving the policy process to the local level, the number of potential actors who have diverse interests is reduced, as are the complexities (e.g., the issue of paternalism) that come with the involvement of the federal government in aboriginal policy reform. Second, the FNLMA model allows aboriginal communities to develop local laws that effectively balance national and local interests in ways that national solutions probably could not achieve.

To apply the subsidiarity principle to other Indian Act reform would involve groups of First Nations negotiating with the federal government to establish new legislative frameworks (national standards) for developing local laws. Once these frameworks are in place, other First Nations could choose to opt into them or remain under the status quo (the Indian Act, for instance), depending on their individual preferences and needs. Overall, adopting a subsidiarity approach to aboriginal policy reform would foster innovation, experimentation, and perhaps greater satisfaction and policy effectiveness at the First Nation level. The subsidiarity principle would be especially useful for addressing those aboriginal policy areas that are subject to highly diverse aboriginal and government interests.

The author is assistant professor, Department of Political Science, Wilfrid Laurier University. The author would like to thank the Journal's editor and the two anonymous reviewers for their helpful comments on an earlier version of this article.

Notes

(1) Indian Act, R.S. 1985, I-5. For a discussion of some of the dynamics between aboriginal women, men and the Canadian state, see Jo-Anne Fiske, "Political status of native Indian woman: Contradictory implications of Canadian state policy," American Journal of Culture and Research 19, no. 2 (1995), pp. 1-30; K. Jamieson [for the Advisory Council on the Status of Women], Indian Women and the Lazo in Canada: Citizens Minus (Ottawa: Ministry of Supply and Service Canada, 1978); Sharon McIvor, "The Indian Act as patriarchal control of women," Aboriginal Women's Law Journal 1, no. 41 (1994), pp. 41-52; Mary Ellen Turpel-Lafond, "Patriarcy and paternalism: The legacy of the Canadian state for First Nation women," in Caroline Andrew, ed. Women and the Canadian State (Montreal and Kingston: McGill-Queen's University Press, 1997).

(2) Peggy J. Blair, "Rights of aboriginal women on- and off-reserve," The Scow Institute (October 2005), pp. 3-5; Patricia Montour-Angus, Thunder in My Soul: A Mohawk Woman Speaks (Halifax: Fernwood Publishing, 1995); John Borrows and Leonard I. Rotman, Aboriginal Legal Issues: Cases, Material and Commentary (Toronto: Butterworths, 1998); Sharon McIvor, "The Indian Act as patriarchal control of women," Aboriginal Women's Law Journal 1, no. 41 (1994), pp. 41-52.

(3) Canada, Royal Commission on Aboriginal Peoples, Report. Volume 4. Perspectives and Realities (Ottawa: Canada Communications Group Publishing, 1996), Chapter 2.

(4) Wendy Cornet and Allison Lendor [for Indian and Northern Affairs Canada], Discussion Paper: Matrimonial Real Property on Reserve (Ottawa: Public Works and Government Services Canada, 2002); Karen Abbott [for Indian and Northern Affairs Canada], Urban Aboriginal Women in British Columbia and the Impacts of the Matrimonial Real Property Regime (Ottawa: Public Works and Government Services Canada, 2003).

(5) See Paul Spicker, "The principle of subsidiarity and the social policy of the European Community," Journal of European Social Policy 1, no. 3 (February 1991), pp. 3-14; Andrew Jordan, "The politics of multilevel environmental governance: Subsidiarity and environmental policy in the European Union," Environment and Planning A 32, no. 7 (July 2000), pp. 1307-324; Burkard Eberlein, "French center-periphery relations and science park development: Local policy initiatives and intergovernmental policymaking," Governance: An International Journal of Policy and Administration 9, no. 4 (October 1996), pp. 351-74.

(6) First Nations Land Management Act, S.C. 1999, c. 24. See Thomas Isaac, "First Nations Land Management Act and third party interests," Alberta Law Review 42, no. 4 (April 1995), pp. 1047-1060; Tom Flanagan and Christopher Alcantara, "Individual property rights on Canadian Indian reserves," Queens Law Journal 29, no. 2 (Spring 2004), pp. 512-17.

(7) For more information on the First Nations Land Management Act, see Christopher Alcantara, "Reduce transaction costs? Yes. Strengthen property rights? Maybe. The First Nations Land Management Act and economic development on Canadian Indian reserves," Public Choice 132, nos. 3/4 (September 2007), pp. 421-32.

(8) Gurston Dacks, "Implementing First Nations self-government in Yukon: Lessons from Canada," Canadian Journal of Political Science 37, no. 3 (September 2004), p. 672.

(9) Thomas Hueglin, "The principle of subsidiarity: Tradition-practice-relevance," in Ian Peach, ed., Constructing Tomorrow" s Federalista: New Perspectives on Canadian Governance (Winnipeg: University of Manitoba Press, 2007), p. 202.

(10) Andreas Follesdal, "Survey article: Subsidiarity," Journal of Political Philosophy 6, no. 2 (June 1998), p. 190.

(11) Hueglin, "The principle of subsidiarity," Peach, Constructing Tomorrow's Federalism, p. 202.

(12) Ibid., p. 214.

(13) Ibid., p. 206.

(14) Ibid., p. 216.

(15) Tom Flanagan and Christopher Alcantara, "Customary land rights on Canadian Indian reserves," in Terry Anderson, Bruce Benson and Tom Flanagan, eds., Self-Determination: The Other Path for Native Americans (Palo Alto, Calif.: Stanford University Press, 2006), pp. 134-58; Claudia Notzke, Indian Reserves in Canada (Marburg/Lahn: Im Selbstverlag des Geographischen Instituts der Universitat Marburg, 1985).

(16) Tom Flanagan and Christopher Alcantara, "Individual property rights on Canadian Indian reserves: A review of the jurisprudence," Alberta Law Review 42, no. 4 (April 2005), pp. 1021-1026.

(17) Flanagan and Alcantara, "Customary land rights on Canadian Indian reserves," Anderson, Benson and Flanagan, Self-Determination, p. 150.

(18) Christopher Alcantara, "Individual property rights on Canadian Indian reserves: The historical emergence and jurisprudence of certificates of possession," Canadian Journal of Native Studies 33, no. 2 (2003), pp. 406-10.

(19) Christopher Alcantara, "Certificates of possession and First Nations housing: A case study of the Six Nations housing program," Canadian Journal of Law and Society 20, no. 2 (2005), pp. 186-88.

(20) Canada, Royal Commission on Aboriginal Peoples, Report; Comet and Lendor, Discussion Paper, pp. 4, 11; Canada, Parliament, Senate, Standing Committee on Human Rights, A Hard Bed to Lie In: Matrimonial Real Property on Reserve (Ottawa: Public Works and Government Services Canada, 2003); Joyce Green, "Canaries in the mines of citizenship: Indian women in Canada," Canadian Journal of Political Science 34, no. 4 (December 2001), pp. 715-38; Tom Flanagan, First Nations? Second Thoughts (Montreal and Kingston: Mc-Gill-Queen's University Press, 2000).

(21) Christopher Alcantara, "Indian women and the division of matrimonial real property on Canadian Indian reserves," Canadian Journal of Women and the Law 18, no. 2 (2006), pp. 513-33.

(22) Isaac, "First Nations Land Management Act and third party interests," Alberta Law Review, pp. 1049-1050.

(23) Derrickson v. Derrickson, [1986] 1 S.C.R. 285.

(24) Meko Nicholas, Director of Operational and Developmental Services West, First Nations Lands Management Resource Centre, Kanata, Ontario, E-mail correspondence, 16 July 2007

(25) Alcantara, "Reduce transaction costs," Public Choice.

(26) Canada, Department of Indian and Northern Affairs, First Nation Profiles (Ottawa: Public Works and Government Services Canada, 2006), available at http://pse2-esd2.ainc-inac.gc. ca/FNProfiles/FNProfiles_home.htm.

(27) Matrimonial Property Act (Repealed), S.S. 1979, c. M-6.1 was replaced with the Family Property Act, S.S. 1997, c. F-6.3.

(28) See Flanagan and Alcantara, "Customary land rights on Canadian Indian reserves," Anderson, Benson and Flanagan, Self-Determination.

(29) See Section 27 of the Georgina Island code for a similar provision.

(30) Family Relations Act, R.S.B.C. 1996, c. 128.

(31) Flanagan and Alcantara, "Customary land rights on Canadian Indian reserves," Anderson, Benson and Flanagan, Self-Determination"; Canada, Royal Commission on Aboriginal Peoples, Report.