Lessons From History: The Recent Applicability of Matrimonial Property and Human Rights Legislation on Reserve Lands in Canada

The 1986 decisions of Derrickson v Derrickson and Paul v Paul highlighted the legislative gaps in the Indian Act with respect to the division of on-reserve matrimonial property. Provincial family property legislation could not apply to account for the absence of matrimonial land rights provisions in the federal Indian Act. This is because the Supreme Court of Canada rigidly applied the doctrine of interjurisdictional immunity. Indigenous women have been disproportionately affected by the lack of on-reserve matrimonial real property provisions. The recent enactment of the Family Homes on Reserves and Matrimonial Interests or Rights Act (MIRA) is meant to finally address the absence of matrimonial real property provisions in the Indian Act. The MIRA allows band councils to enact their own matrimonial property laws and provides default federal rules for band councils that do not enact their own provisions. This article examines possible post-separation outcomes that may arise under the MIRA. It suggests the challenges that Indigenous women will face seeking redress under the MIRA will likely parallel the historical challenges they continue to face in disputes regarding status discrimination. It also suggests potential remedies for addressing discriminatory outcomes that may arise under this legislation. This paper ultimately emphasizes the importance of consultation with Indigenous women when enacting laws under the MIRA, and the importance of the Canadian Human Rights Tribunal as a forum for drawing attention to the larger problems regarding the division of property on-reserve that the MIRA alone fails to address.