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Public Interest Law Journal of New Zealand |
Last Updated: 21 October 2014
Matrimonial Property Rights on Indian Reserves and Māori Land: A Comparative Study
Hannah Cobb[*]
In both Canada and New Zealand, there is a lack of legislation governing the division of relationship property on Indian reserve land and Māori land. This research report explains the causes of these ‘legislative holes,’ and explores the effects of this situation in both jurisdictions. Further, it examines the Canadian Bill S-2 Family Homes on Reserves and Matrimonial Interests or Rights Act, and address whether the changes proposed by the Bill S-2 could be used as a template for future legislation in New Zealand. Bill S-2 is an exciting step forward in the plugging of these legislative gaps in Canada. The Bill not only allows for indigenous self-determination through the enactment of community-approved laws, but further provides legislative protection for the rights of those living on indigenous lands. It is clear that New Zealand can learn much from this Bill, and, in its growing acceptance of the role of self-determination, should look to Canada’s example which ensures basic democratic processes and rights protections.
In both Canada and New Zealand, there is a lack of legislation governing the division of relationship property on Indian reserve land and Māori land. This paper intends to explain the causes of these ‘legislative holes,’ as well as explore the effects of this situation in both jurisdictions. Further, it will examine the proposed Canadian Bill S-2 Family Homes on Reserves and Matrimonial Interests or Rights Act, and the possible implications in Canada of this proposed legislation. Finally, it will address whether the changes proposed by the Bill S-2 could be used as a template for future legislation in New Zealand, with particular reference to the ongoing role of indigenous self-determination.
Before analysing the legislative holes surrounding the division of property on Indian reserve land and Māori land, it is important to determine what constitutes such ‘reserve land’ and ‘Māori land.’ Under the Indian Act, reserve land is a “tract of land”[1] which has been set aside for “use and benefit in common”[2] by an Indian band. An Indian band is a “body of Indians,”[3] who share territory and culture, and are deemed to be a band by the Governor in Council.[4] The legal title to the reserve land vests in the Crown,[5] but the band may allot segments of the land to individual band members for personal use. The Minister of Indian Affairs and Northern Development must approve this allocation, and, once approved, the member is awarded a Certificate of Possession.[6] There are currently 3,385,950 hectares of land area registered as ‘reserve land’ in Canada.[7]
The status of land in New Zealand is defined under the Te Ture Whenua
Māori Act 1993 (Māori Land Act
1993).[8] Māori land includes
both Māori customary land and Māori freehold
land,[9] which are defined in Part
6.[10] Māori customary land is
land held by Māori “in accordance with tikanga
Māori,”[11] or
“Māori customary values and
practices.”[12] Māori
freehold land is any land deemed by a ‘freehold order’ made by the
Māori Land Court to be ‘beneficially
owned.’[13] At September 2009,
Māori land comprised approximately five per cent of the total land mass in
New Zealand.[14]
The issue arises
when, at the demise of a relationship, relationship property is positioned on an
Indian reserve or Māori land.
In Canada, ‘relationship
property’ can include “homes and the land they sit on and other
property used for a family
purpose.”[15] The New Zealand
Property (Relationships) Act 1976 defines relationship property to include the
‘family home’ and ‘family
chattels.’[16] A relationship
collapse can be emotionally traumatic for all persons involved, and the painful
process of asset division frequently
causes relations between the parties to
become strained. In both New Zealand and Canada, legislative protection exists
to ensure
that the relationship property is divided equally between the
spouses.[17] Such protection does
not, however, extend to those living on Indian reserves or Māori land.
This lack of protection for couples living on Indian reserves is caused, in part, by Canada’s legislative framework. The Constitution of Canada is the supreme law of Canada and any law deemed inconsistent with the Constitution is invalid “to the extent of that inconsistency.”[18] Two levels of government exist beneath the Constitution: the Federal Government, which creates Federal law applicable to the whole of Canada, and the provincial or territorial Governments, which create law particular to individual Canadian states.[19] The Constitution Act 1867 awards the Federal Government legislative authority over matters concerning ‘Indians and land reserved for the Indians’ to the Parliament of Canada,[20] while placing the ‘property and civil rights in the province’ under the jurisdiction of each provincial government.[21] Therefore, while provincial government has legislative authority over provincial property rights, if such property-related legislation encroaches or conflicts with any federal jurisdiction over ‘lands reserved for Indians,’ it will be declared unconstitutional and thus inoperative to the extent of the inconsistency.
Such a declaration of inoperability occurred in Derrickson v Derrickson.[22] Mrs Derrickson claimed under Part 3 of the provincial Family Relations Act[23] that she was entitled to a one-half interest in the properties, situated on an Indian reserve, for which her husband held Certificates of Possession.[24] Justice Chouinard concluded that, as Part 3 of the provincial Family Relations Act provided for the equal division of property between spouses, it encroached on the “right to possession of land on an Indian reserve” [25] which is “manifestly at the very essence of the federal legislative power under s 91(2) of the Constitution Act 1867.”[26] Awarding Mrs Derrickson a one-half interest in the Indian reserve land infringed on her husband’s right to possession of that reserve land, and, as such, was outside the jurisdiction of the provincial Courts. Derrickson therefore establishes that provincial law entitling a partner to an undivided half interest in family assets is inapplicable on family reserves.[27]
The inapplicability of provincial family law on reserve land was further extended in Paul v Paul.[28] The Supreme Court overturned an order granting Mrs Paul interim occupation[29] of a reserve-based matrimonial home, for which Mr Paul held a Certificate of Possession. Stating that “occupation is part of possession,”[30] the court found that the granting of an order entitling Mrs Paul to temporary occupation of the house encroached on the possession rights which fell under federal jurisdiction.
Derrickson does, however, make provision for a compensation order in lieu of division of the matrimonial house. Such a compensation order takes into account the value of the undivided land for the “purpose of adjusting the division of family assets between the spouses under the relevant provincial law.”[31] However, other than compensation in lieu of division, the courts are unable to apply provincial laws of equal division to matrimonial homes on reserve land. Therefore, a spouse who is not named on the Certificate of Possession cannot share in the interest in that reserve land, or to the house positioned on that land. Even when both parties are jointly named on the Certificate of Possession, if there is a “disagreement over who should stay in the home, a judge has no authority to make a final decision.”[32] The Courts can provide no recourse when parties contest the possession of reserve land.
Furthermore, no recourse is available through federal legislation. While the federal government has the authority to legislate in regards to Indian land, no federal law governing matrimonial property has been enacted. The federal Indian Act 1985 dictates the rules of ownership of reserve lands, yet it makes no mention of the land’s division at the breakdown of a relationship. Such a lack of federal legislation, alongside the inapplicability of provincial enactments, has led to the legislative hole regarding the division of relationship property on Indian reserve land.
In New Zealand, the division of property is governed by the Property (Relationships) Act.[33] Under s 11, “each of the spouses or partners is entitled to share equally” in the family home, family chattels, and other relationship property.[34] Yet, Māori land is excluded from the ambit of the Property (Relationships) Act under s 6, which states that “nothing in this Act shall apply in respect of any Māori land.”[35] Therefore, Māori customary and freehold land is not subject to the equal division rules articulated in s 11. This means that when a relationship breaks down, the beneficial interest of the party who does not hold customary or freehold title in the Māori land is not protected, as it is not subject to equal sharing. If the spouse with the interest in the Māori land dies, however, the remaining partner may be entitled to a beneficial life interest in the land.[36]
The Family Court case of Rawhiti v Marama[37] affirms that s 6 of the Property (Relationships) Act is designed to exempt Māori land from equal division.[38] Further, the court in Marama deemed that the matrimonial ‘dwellinghouse’, which was situated on Māori land, was part of that land.[39] The parties’ matrimonial home, as Māori land, was therefore not subject to equal division under s 11.[40]
More recently, the courts have adopted a novel approach to the division of matrimonial property on Māori land. In the 2010 case of TG v RL,[41] the Family Court established that a family home could not be excluded under s 6 of the Property (Relationships) Act 1976 as Māori land, unless it was deemed “part and parcel” of that land.[42] The test for whether a chattel has become “part and parcel” of the land,[43] is determined both by the degree to which the chattel is annexed to the land and the purpose of such annexation. In TG v RL, the dwelling sat on “timber piles,”[44] rested on the land by its own weight, and was not intended to become a fixture attached to the land.[45] It was thus deemed to be a chattel, rather than part of the Māori land, under the Property (Relationships) Act 1976. Under s 11, the house was therefore subject to equal division.[46]
Furthermore, Shirtliff v Albert suggests that if Maori land is ‘removed from the pool of relationship property’, the remaining matrimonial property should be divided unequally to redress this imbalance.[47] Section 11B(2) of the Property (Relationships) Act 1976 makes provision for this, enabling the court to award each partner an: [48]
...equal share in such part of the relationship property as it thinks just in order to compensate for the absence of an interest in the family home.
Therefore, even if the matrimonial home was appropriately affixed to the land (so as to become part and parcel of it), the removal of this home from the pool of relationship property could be redressed through a s 11B(2) adjustment.[49]
While the rates of marital breakdown on Indian reserves are “comparable to the off-reserve population,”[50] the impact of such a breakdown is typically vastly more damaging to those seeking divorce and division of on-reserve matrimonial property. The lack of legislation governing division of matrimonial property on reserve land causes this damage. As the party who does not hold a Certificate of Possession for the reserve land does not acquire a one-half interest in the land at separation, the certificate-holding partner is free to “sell an on-reserve home and keep all of the money”[51] or “bar the other from the on-reserve home.”[52] The trauma of losing a home in this manner is compounded by the extreme housing shortage on reserves, which may force an alienated partner off the reserve, or even result in homelessness. In 2008, Aboriginal people represented just 2.5 per cent of Calgary’s total population and yet comprised 35 per cent of Calgary’s overall homeless population.[53] Aboriginal homelessness may be caused, in part, by the lack of protection of the non-Certificate of Possession owner’s interest in the matrimonial home.
Indigenous women are disproportionately affected by the lack of such protection. This is because women typically do not own Certificates of Possession for reserve land. While there is no “prohibition against women owning property through a Certificate of Possession,”[54] there exists a perception, built upon a “cumulative effect of a history of legislation that has excluded women,”[55] that women are not entitled to own such a Certificate. Without a Certificate, a woman acquires no interest in the matrimonial home at the end of a relationship. Moreover, the courts cannot “order an abusive spouse to leave the matrimonial home if the Certificate is in the abusive spouse’s name.”[56] Provincial protection orders cannot be enforced on reserve land as they interfere with the Certificate-holder’s right to possession of Indian land, which falls under federal jurisdiction. Women are forced to leave their homes when “fleeing domestic violence”[57] – only to return to the “abusive relationship due to a lack of housing options.”[58] Aboriginal women are five times more likely to be murdered than non-Aboriginal women in Canada.[59] This may be partly because these women, typically without Certificates of Possession and thus no interest in the family home, are left with nowhere to go when faced with an abusive partner.
When women flee in such circumstances, they typically take any children of the relationship with them. This removal from their home, and frequently their communities, causes suffering to both mother and child,[60] who are separated from the kinship groups within their band. Furthermore, while the Government of Canada provides indigenous peoples with community-based services such as Maternal Child Care, Children’s Oral Health, and educational support, these services (and others like them) are “administered almost exclusively by the bands.”[61] Few programmes exist for Indians who are not living on reserves.[62] Leaving the Indian band means the loss of governmental services and financial support, which may be crucial to the child’s educational and health needs.
In New Zealand, “very few Māori now live on Māori freehold land.”[63] The number of people personally affected by the gap in legislature governing the division of property on Māori land is therefore small in comparison to Canada.[64] Furthermore, protection orders under Part 2 of the Domestic Violence Act 1995, which compel the immediate removal of a violent spouse from their home, are enforceable on Māori land, regardless of which partner owns the interest in the land.
While protection orders are enforceable on Māori land, the unequal share in interest in this land may create violence-inducing power imbalances in relationships. In a relationship, each party provides a “power base”[65] or their “personal resources”[66] which are “used to meet each other’s needs.”[67] The family home and land constitutes such a personal resource. Because whichever party holds the greater power base in the relationship has the greater power, this may contribute to the assertion of authority of the spouse with the interest in the land over the spouse without this interest. In turn, this may lead to domestic violence. New Zealand has 80,000 domestic violence cases each year.[68] The power imbalances caused by the legislative gap may contribute to this staggeringly high figure.
The Federal Conservative Government of Canada introduced a Bill in 2008[69] in an attempt to provide legislation to govern the division of reserve property.[70] On June 11 2013 the latest version of this Bill named ‘Bill S-2 Family Homes on Reserves and Matrimonial Interests or Rights Act’ passed its third reading in the House of Commons.[71] Although the Bill still awaits the approval of the Senate, and Royal assent, before it can become law, approval of the House of Commons is nonetheless a major step towards plugging the legislative gap regarding matrimonial interests in reserve land.[72]
Bill S-2 has two main objectives. Firstly, Clause 7(1) empowers First Nations to enact their own community-specific matrimonial real property laws, which provincial courts can then apply.[73] The Council of each First Nations Community must propose their suggested laws to the Community to vote on. These suggested laws are approved if at least 25 per cent of eligible voters in the band vote, and the majority of that 25 per cent approve them.[74] Bill S-2 therefore enables First Nations communities to establish laws specific to their unique culture and traditions and the community voting process ensures that these laws are in accordance with the community’s interests.
The Bill’s second purpose is to establish a set of interim rules, called Provisional Federal Rules.[75] These provide matrimonial real property rights and protections for residents living on reserves until a First Nation does develop and enact its own laws.[76] Such protections afford couples living on-reserve the same relationship property rights and protections as couples living off-reserve. For example, under the new Bill, Clause 16(1) enables a judge to make an emergency protection order, and grant the applicant exclusive occupation of the family home even if the applicant does not hold a Certificate of Possession for the land.[77] This would give a partner facing domestic violence the means to escape abuse without having to abandon the reserve or face homelessness.
Despite the advantages of the Bill, it has not been universally well-received. The Liberal Government of Canada has criticised the Bill as being paternalistic, claiming that the Aboriginal Affairs Committee were not adequately consulted in its creation.[78] Chief Garrison Settee of the Cross Lake First Nation further described the Bill as ‘redundant’ as indigenous peoples “know how to govern [them]selves.”[79]
The Liberal Government of Canada therefore proposes that better use be made of existing provisions for self-determination under the First Nations Land Management Act 1999. This Act is a self-government agreement and provides a limited number of First Nations Communities with the “opportunity to take responsibility for the management of their reserve lands.”[80] Such management includes rules and procedures governing matrimonial real property, which must be created in consultation with its members.[81] Yet this argument is flawed; only a limited number of communities can partake in this self-government exercise and the remainder of First Nations communities are still left without legislation governing the division of matrimonial property. Moreover, Provisional Federal Rules provided for in Bill S-2 protect matrimonial rights, while First Nations create their own culturally relevant laws. These indigenous laws will diminish “the role of the federal government in the day-to-day administration of first nations.”[82] Bill S-2, therefore, arguably promotes First Nation self-determination.
If the New Zealand Parliament enacted
legislation providing for the division of Māori land, it is possible it
would follow the
Canadian example of providing for indigenous
self-determination. Self-determination has its benefits. It “enables the
preservation
of indigenous
cultures,”[83] and helps to
“rectify the historical injustices of loss of
self-government”[84] by
specifically allowing for such self-rule. Furthermore, there has been a recent
push towards Māori self-determination, and in the Te
Urewere National Park settlement, Tuhoe self-determination within its remote
territory
was agreed upon.[85] This
may be the start of the acquisition of greater self-determination for
Māori.[86]
It is in the implementation of mechanisms for indigenous self-determination that New Zealand may learn from Canada’s example. The Canadian situation serves to highlight that self-determination must be supported by basic democratic principles, and basic protections. The gender-biased awarding of Certificates of Possession for reserve land demonstrates that without guidelines in place to ensure all community members’ views are heard, subordinate groups can become marginalised within their own territories. The high prevalence of domestic abuse and homelessness on reserves shows that it is important to afford legislative protection to all members of society, regardless of where they reside. It is not enough simply to enact self-determination mechanisms as in the First Nations Land Management Act 1999. There must also be some safeguards in place to ensure both that subsequent community laws are enacted in the best interests of all of their members, and to guarantee the protection of all members’ rights. It is hoped that the Canadian Bill S-2 Family Homes on Reserves and Matrimonial Interests or Rights Act will achieve both of these aims.
The division of relationship property at the end of a relationship can be a traumatic experience for all parties involved. For those couples living on reserve land or Māori land, however, this trauma is exacerbated by the lack of legislation which exists to protect their interests in such land. This lack of protections is caused by legislative frameworks, failure to legislate within these frameworks, and subsequent case law. This has led to many problems – in particular, Aboriginal homelessness and domestic violence. The new Canadian Bill S-2 Family Homes on Reserves and Matrimonial Interests or Rights Act is an exciting step forward in the plugging of these legislative gaps. The Bill not only allows for indigenous self-determination through the enactment of community-approved laws, but further provides legislative protection for the rights of those living on indigenous lands. It is clear that New Zealand can learn much from this example, and, in its growing acceptance of the role of self-determination, should look to Canada’s example which ensures basic democratic processes and rights protections.
[*] Hannah Cobb completed a
BA(Classical Studies)/LLB at the University of Otago in 2013. She wrote this
paper in her fifth year of
study. She would like to thank Sarah Cobb and Thomas
Hay for their late-night editing and support, and Associate Professor Jacinta
Ruru whose lectures inspired this research. To date, the most comprehensive work
on this topic is Ruru, J, “Finding Solutions
for the Legislative Gaps in
Determining Rights to the Family Home on Colonially Defined Indigenous
Lands” (2008) 41(2) U.B.C. Law Review 315-348.
[1] Indian Act 1985 (CAN), s 2.
[2] Indian
Act.
[3] Indian
Act.
[4] Indian Act.
[5] Indian Act.
[6] Indian Act, s 20.
[7] Aboriginal Affairs and
Northern Development Canada “Land Base Statistics” (2013) Aboriginal
Affairs and Northern Development
Canada
<http://www.aadnc-aandc.gc.ca/eng/1359993855530/1359993914323>
.
[8]
Te Ture Whenua Māori Act 1993 (Māaori Land Act 1993) s 129.
[9] Maori Land Act, s 2.
[10] Maori land Act, Part 6.
[11] Maori Land Act, s
129(2)(a).
[12] Maori Land Act,
s 2.
[13] Maori Land Act, s
129(2)(b).
[14] Te Kooti Whenua
Māori “Māori Land Court” Māori Land Court
<http://www.justice.govt.nz/courts/maori-land-court>
.
[15]
Report of the Ministerial Representative Matrimonial Real Property Issues on
Reserves, Wendy Grant-John, March 9, 2007 at 17.
[16] Property (Relationships)
Act 1976 s 8(1).
[17] In New
Zealand, this is provided for in the Property (Relationships) Act 1976, s 11. In
Canada, different states have enacted their
own legislation; for example, in
British Columbia the Family Law Act 2011 (SBC) s 81 governs property division.
[18] Constitution Act 1982
(CAN), s 52.
[19] Government of
Canada “About the Court” (2012) The Supreme Court of Canada
<http://www.scc-csc.gc.ca/court-cour/sys/index-eng.asp>
.
[20]
Constitution Act 1867 (CAN), s
91(24).
[21] Constitution Act
1867, s 92(13).
[22] Derrickson
v Derrickson [1986] 1 SCR 285.
[23] Family Relations Act 1996
(RSBC). This has subsequently been replaced by the Family Law Act (SBC)
2011.
[24] Pursuant to Indian
Act, s 20.
[25] Derrickson v
Derrickson, above n 22, at [41].
[26] Derrickson v
Derrickson, above n 22.
[27]
In making this decision, Justice Chouinard stated that he was “not
unmindful of the ensuing consequences for the spouses arising
out of the laws in
question according as real property is located on a reserve or not”.
Derrickson v Derrickson, above n 22,
at
[81].
[28] Paul v Paul [1986] 1
SCR 306.
[29] Family Relations
Act 1996 (RSBC) s 77.
[30] Paul
v Paul, above n 28, at 465.
[31]
1 November 2012 146 HCD 1055.
[32] Above n
31.
[33] Property (Relationships)
Act 1976.
[34] Property
(Relationships) Act.
[35]
Property (Relationships) Act.
[36] Maori Land Act, s
99(2).
[37] Rawhiti v Marama
[1983] 2 NZFLR 127.
[38]
Property (Relationships) Act.
[39] Rawhiti v Marama, above n
37, at 127.
[40] Property
(Relationships) Act 1976 s 11.
[41] TG v RL [Māori Land:
removable home] [2010] NZFLR 135.
[42] TG v RL, above n 41,
at 1.
[43] This test was first
expressed in Holland v Hodgson [1872] UKLawRpCP 24; (1872) LR 7 CP 328 at
355.
[44] TG v RL, above n 31, at
1.
[45] Clause 8.1 of the site
licence agreement stated “all parties to this deed agree that... the house
remains as a chattel and
does not become a fixture attached to the land.”
TG v RL [Māori Land: removable home] [2010] NZFLR 135 at
1.
[46] Property (Relationships)
Act, s 11(1)(b).
[47] Shirtlidd
v Albert [2011] NZHC 1876; [2011] NZFLR 971 at
[11].
[48] Property
(Relationships) Act, s 11B(2).
[49] Property (Relationships)
Act.
[50] Report of the
Ministerial Representative Matrimonial Real Property Issues on Reserves, Wendy
Grant-John, March 9, 2007 at 8.
[51] 1 November 2012 146 HCD
1015.
[52] Above n 51.
[53] Yale Belanger, Gabrielle
Head, Olu Awosoga “Assessing Urban Aboriginal Housing and Homelessness in
Canada” (Final report
prepared for the National Association of Friendship
Centres and the Office of the Federal Interlocutor for Metis and Non-Status
Indians,
Ottawa, March 2012) at 30.
[54] Katrina Harry “The
Indian Act and Aboriginal Women’s Empowerment: What Front Line Workers
Need to Know” (paper
presented to Batterd Women’s Support Services
event for frint-line workers, Vancouver, January 2009) at 18.
[55] Harry, above n 54.
[56] Minister of Indian Affairs
and Northern Development After marriage breakdown: Information on the on-reserve
matrimonial home (2003)
7.
[57]
Minister of Indian Affairs and Northern Development and Federal Interlocutor for
Metis and Non-status Indians, Consultation Report on Matrimonial Real
Property (2007) 263. In this report, 73% of the participants were Indigenous
women, who shared their perspectives on the issue of matrimonial
real property.
[58] Consultation Report on
Matrimonial Real Property, above n 57.
[59] 1 November 2012 146 HCD
1015.
[60] Consultation Report
on Matrimonial Real Property, above n
57.
[61] Harry, above n 54, at
15.
[62] Harry, above n 54.
[63] Te Kooti Whenua Māori
“Judge’s Corner” Māori Land Court
<http://www.justice.govt.nz/courts/maori-land-court/news-events/judges-corner>
.
[64]
This issue has been litigated on only 4 instances: TG v RL [Māori land:
removable home] [2010] NZFLR 135; Rawhiti v Marama (1983) 2 NZFLR 127; Baker v
Baker HC Palmerston North AP 14/93, 10 September 1993; Shirtliff v Albert [2011] NZHC 1876; [2011]
NZFLR 971.
[65] TNM Malik and KM
Lindahl “Aggression and dominance: the Roles of Power and Culture in
Domestic Violence” (1998) 5 Clinical
Psychology: Science and Practice 409.
[66] Malik and Lindahl, above n
66.
[67] Malik and Lindhal,
above n 66.
[68] Peter Boshier
“Domestic Violence and the Impact on Children’s lives” (2013)
Sixth World Congress on Family Law
and Children’s Rights
<www.justice.govt.nz/courts/family-court/publications/speeches-and-papers/domestic-violence-and-the-impact-on-childrens-lives>.
[69]
Gillian Taylor “First Nations Matrimonial Property Bill Met with Mixed
Reactions” CBC News Canada 12 June 2013
<www.cbc.cx/news/canada/mantinoba/story/2013/06/12/mb-first-nations-divorce-reserves-property-law.html>.
[70]
Taylor, above n 69.
[71] Taylor,
above n 69.
[72] On June 19,
2013, shortly after this article was written, Bill S-2 Family Homes on Reserves
and Matrimonial Interests or Rights Act
(2011) received Royal Assent and is now
law. First Nations can now establish their own community-specific matrimonial
real property
laws, which will be applied by provincial courts. From December
16, 2014, Provisional Federal Rules will apply to First Nations who
have not
enacted such matrimonial property laws. See Aboriginal Affairs and Northern
Development Canada “Backgrounder - Family
Homes on Reserves and
Matrimonial Interests or Rights Act” (2013) Aboriginal Affairs and
Northern Development Canada
<https://www.aadnc-aandc.gc.ca/eng/1371645998089/1371646065699
>.
[73] Bill S-2 Family Homes
on Reserves and Matrimonial Interests or Rights Act (2011) cl 7(1).
[74] Bill S-2, cl 8, 9.
[75] Bill S-2, cl 12.
[76] Bill S-2, cl 13 – 52.
[77] Bill S-2, cl 16(1).
[78] 1 November 2012 146 HDC
1045. Insufficient consultation might amount to a breach of the duty to consult,
as articulated in Haida
Nation v British Columbia (Minister of Forests) [2004] 3
SCR 511.
[79] Taylor, above n
69.
[80] Minister of Indian
Affairs and Northern Developments After Marriage Breakdown: Information on the
On-Reserve Matrimonial Home (2003).
[81] After Marriage
Breakdown, above n 80.
[82]
1 November 2012 146 HDC
1030.
[83] Te Konkonga
“Self-determination and the politics of indigeneity” (2006) 1 MAI
Review 1.
[84] Te Konkonga,
above n 83.
[85] The New Zealand
Herald “Editorial: Settlement with Tuhoe good for NZ” The New
Zealand Herald
<http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1 & objectid=10889421>
.
[86]
The 2013 review of the Te Ture Whenua Māori Act 1993 supports this trend
towards self-determination. The fourth proposal in
the discussion document
suggests that ‘there should be an enabling institutional framework to
support owners of Māori
land to make decisions and resolve any
disputes.’ Such an institutional framework aims to empower Māori
landowners by
giving them decision-making authority about the use and management
of their land. See Te Puni Kōkiri “Te Ture Whenua Māori
Act 1993
Review Panel Discussion Document”. Review Panel
<http://www.tpk.govt.nz/en/in-print/our-publications/publications/te-ture-whenua-maori-act-1993-review-panel-discussion-document/download/TTWMA-discussion-document.pdf>
.
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