In June, 2013, the Family Homes on Reserves and Matrimonial Interests or Rights Act (“FHA”) was assented to, and as at December 16, 2013 the ability of First Nations to pass legislation to deal with the division of property on reserves has come into force. Up until the passage of the FHA, the division of First Nations property was caught in legal limbo, neither covered by provincial legislation, nor referred to in the Indian Act. With the new law, First Nations will have one year to draft their own laws dealing with the division of reserve property on marriage breakdown or death, as well the use and occupancy of that property. If a First Nation does not create legislation within that twelve month period, the FHA will impose a regime of property division and use until and unless a new law is created.
Concerns are being raised that the imposition of a Federal regime, even a provisional one, harkens to colonialism. S.7 of the FHA does say that the Federal regime will only be in effect until a First Nation enacts its own law. However, as matrimonial law is tremendously complex at the best of times, the creation of new property division regimes the time limitation is effectively an at least temporary legislative imposition.
From a lawyer’s perspective, there are a multitude of questions which will not be answered until the communities begin presenting their own legislation. The addition of any new law – Federal, Provincial or First Nations – comes with its own complexities, potential conflicts and interpretations which will have to be determined by the courts over time.