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Federal law impacts First Nations property rights

A new federal law affects matrimonial property rights in First Nations reserves in Alberta and across the nation. On Dec. 16, 2013, Bill S-2 was enacted as the government tries to address a problem that dates back decades. Under the new law, now known as the Family Homes on Reserves and Matrimonial Interests or Rights Act, a gap in the Indian Act regarding marital property rights is filled, and courts are allowed to give exclusive occupation rights to one member of a couple, particularly in cases of domestic violence.

The Supreme Court of Canada previously determined that territorial or provincial laws related to marital property did not necessarily apply to First Nations reserves. The new legislation applies a federal standard and gives the First Nations 12 months to develop laws locally. If they do not, federal laws that support the equal distribution of property will apply. The Aboriginal Affairs Minister added that jurisdictions that already have laws in place will not be affected by the federal ruling.

British Columbia's regional Assembly of First Nations chief, Jody Wilson-Raybould, expressed concern that the government's actions may be premature and noted the complexity of the issue, which involves local customs, decolonization, property tenure and culture. Even though the transition has been in process for two years, she thinks the process could take much longer than a year and that forcing the issue would not benefit reserves. She labelled the approach neo-colonial and suggested that the reserves should be allowed to work on changing laws at their own pace instead of under pressure from the federal government.

In the changing legal landscape regarding divorce and property rights, pursuing the dissolution of a marriage may become a complicated issue. A family law lawyer may be able to help those pursuing divorce or division of property.

Source: The Tyee, "Feds Impose New Marriage Property Law on Reserves", Katie Hyslop, December 18, 2013

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