Laws on Reserves

Rights and options for elder abuse response may be different on reserves due to the impact of the Canadian Constitution and the Indian Act^[^1] on jurisdiction. This section outlines laws that apply on reserve which are relevant to adult abuse and neglect. It also identifies resources to help you understand the rights of older people living on reserves.

We use the colonial legal term “Indian” only where we cite legislation. We do not use the word to refer to Indigenous people generally.

This section briefly discusses:

Jurisdiction generally
Family law and property
Protection orders and peace bonds
Band Policies
Income assistance
Resources for further reading

1. Jurisdiction on Reserves

The Constitutio n gives the federal government jurisdiction over “Indians, and Lands reserved for the Indians”.^[2] The Indian Act was enacted under this authority. It sets out the legal framework applicable to ‘Indians’ and on reserve lands.

Reserve lands are different from other land in:

Tenure: Legal title to reserve lands is held by the Crown rather than by individuals or organizations.^[3]
Alienability: The Indian Act has restrictions on possession and alienation of reserve lands. The land cannot be seized by legal process or be mortgaged or pledged to non-members of a First Nation;^[4] and
Ministerial Oversight: The Minister must approve or grant most land transactions under the Indian Act.^[5]

The Indian Act covers areas related to land, housing, property, wills, guardianship, finances, and bands. A provincial law that conflicts with the Indian Act does not apply.^[6]

The Indian Act and other federal laws do not cover all possible areas of law. As a result, a mix of federal laws, provincial laws, indigenous laws, band laws, and band or government policies apply on reserve.

2. Family Law and Property

Federal, provincial, and territorial laws apply to family matters. The federal Divorce Act^[7] covers divorce of married spouses, child and spousal support, and parenting orders. Common-law spouses are not covered by the Divorce Act. The Divorce Act applies both on and off reserve if the spouses are married.^[8]

Most provincial and territorial family laws apply on reserve. The main exception is property division, because provincial laws related to real property do not apply on reserves.

The Indian Act and the Divorce Act together have left some major gaps related to property division on reserves, particularly when it comes to the family home. The Family Homes on Reserves and Matrimonial Interests or Rights Act^[9] fills some of these gaps. The Act addresses common-law relationships, occupancy of the family home, when the family home can be sold, and how to divide the value of the home. It also creates emergency measures when there is violence (discussed below).^[10]

3. Protection Orders and Peace Bonds

3.1 Overview

When there is family violence or abuse occurring on reserves, the older person may be able to access a protection order under various laws:

All provinces and territories have family law or family violence legislation which allow the court to grant various types of protection orders for people experiencing abuse or relationship violence. These provisions apply to different types of family relationships. Provincial family or abuse legislation is available to Indigenous people living on and off reserves. These provisions are summarized in the province and territory sections of this website;

The federal Criminal Code allows a person to obtain a peace bond (also called a section 810 recognizance) in certain circumstances. The criminal law section provides information on peace bonds; ^[11] and

The Family Homes on Reserves and Matrimonial Interests or Rights Act provides protection measures.

3.2 Exclusive occupation of the home on reserves

The Family Homes on Reserves and Matrimonial Interests or Rights Act creates rules regarding exclusive occupation of the home on reserves. The court can grant a spouse or partner exclusive occupation of the family home even if that person is not a First Nations member. The court can also grant an interim order providing exclusive occupation.

Court order
20(1)A court may, on application by a spouse or common-law partner whether or not that person is a First Nation member or an Indian, order that the applicant be granted exclusive occupation of the family home and reasonable access to that home, subject to any conditions and for the period that the court specifies.

Interim order
(2)The court may make, on application by either spouse or common-law partner, an interim order to the same effect, pending the determination of the application under subsection (1).^[12]

In deciding whether to grant an exclusive occupation order, the court must consider several factors including:

The presence of family violence or psychological abuse;
The interests of an older person, or person with a disability, living in the home;
The best interests of a child in the home;
The interests of the First Nation members living on the reserve;
The financial situation of the family;
The health of the spouses or partners; and
The availability of other accommodation.^[13]

The order can include provisions requiring a person to:

Leave the home and stay away;
Pay some of the living expenses or maintenance of the home; or
Maintain the condition of the home.^[14]

3.3 Emergency protection orders

The Family Homes on Reserves and Matrimonial Interests or Rights Act also outlines how to obtain an emergency protection order. An emergency protection order can be obtained if there is family violence, and the order is needed because there is an imminent risk of harm to a person or their property. An order can be in effect for up to 90 days.

Order of designated judge
16 (1) On ex parte application by a spouse or common-law partner, a designated judge of the province in which the family home is situated may make an order for a period of up to 90 days that contains one or more of the provisions referred to in subsection (5) and that is subject to any conditions that the judge specifies, if the judge is satisfied that
- (a) family violence has occurred; and
- (b) the order should be made without delay, because of the seriousness or urgency of the situation, to ensure the immediate protection of the person who is at risk of harm or property that is at risk of damage.^[15]

The Family Homes on Reserves and Matrimonial Interests or Rights Act defines family violence, which includes physical, psychological, sexual, or financial abuse against a partner, spouse, child, or other person living in the family home. This broad definition could cover elder abuse.

Definition of family violence
16 (9) For the purposes of this section, family violence means any of the following acts or omissions committed by a spouse or common-law partner against the other spouse or common-law partner, any child in the charge of either spouse or common-law partner, or any other person who habitually resides in the family home:
- (a) an intentional application of force without lawful authority or consent, excluding any act committed in self-defence;
- (b) an intentional or reckless act or omission that causes bodily harm or damage to property;
- (c) an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or damage to property;
- (d) sexual assault, sexual abuse or the threat of either;
- (e) forcible confinement without lawful authority; or
- (f) criminal harassment.^[16]

The court must consider several factors in determining whether to grant the protection order:

Considerations
16 (4) In making the order, the designated judge must consider, among other things,
- (a) the history and nature of the family violence;
- (b) the existence of immediate danger to the person who is at risk of harm or property that is at risk of damage;
- (c) the best interests of any child in the charge of either spouse or common-law partner, including the interest of any child who is a First Nation member to maintain a connection with that First Nation;
- (d) the interests of any elderly person or person with a disability who habitually resides in the family home and for whom either spouse or common-law partner is the caregiver;
- (e) the fact that a person, other than the spouses or common-law partners, holds an interest or right in or to the family home;
- (f) the period during which the applicant has habitually resided on the reserve; and
- (g) the existence of exceptional circumstances that necessitate the removal of a person other than the applicant’s spouse or common-law partner from the family home in order to give effect to the granting to the applicant of exclusive occupation of that home, including the fact that the person has committed acts or omissions referred to in subsection (9) against the applicant, any child in the charge of either spouse or common-law partner, or any other person who habitually resides in the family home.^[17]

Possible terms of an emergency protection order include:

Exclusive occupation of the residence;
Removal of a person from the home by a peace officer, regardless of status;
Staying away from a location;
Police accompaniment to collect belongings; or
Any other terms the court considers necessary.^[18]

4. Band Policies

In addition to the federal and provincial laws, band councils develop their own laws and policies, some of which could apply to abuse and neglect of older people.^[19] For example, the Tsleil-Waututh Nation has a law which addresses exclusive occupation orders and emergency protection orders.^[20]

5. Income Assistance

Some older people fleeing abuse may need to apply for income assistance to have access to a source of income to meet basic needs. Employment Insurance is under the federal jurisdiction and so applies on reserve.^[21] Income and social assistance laws created by the provinces and territories do not apply on reserve. Instead, Band Councils or other reserve agencies provide social assistance for people living on reserves.^[22] The federal government provides funding to relevant agencies to support, or help support, their income assistance programs.

The band or organization providing the social assistance on reserve must follow federal policy in administering income assistance programming.^[23] This policy allows hardship or emergency assistance where documentation establishes eligibility.

6. Resources

Atira Women’s Resource Society, Your Rights on Reserve: A Legal Tool-kit for Aboriginal Women in BC (Vancouver, January 2014), online: <www.atira.bc.ca/sites/default/files/Legal%20Tool-kit-April-14.pdf>.
JP Boyd on Family Law, “Aboriginal Families”, online: Clicklaw <wiki.clicklaw.bc.ca/index.php?title=Aboriginal_Families>.
National Aboriginal Circle Against Family Violence, Anagosh: Legal Information Manual for Shelter Workers (Quebec, March 2017), online: <static1.squarespace.com/static/5f738ba8104fc0629adf2e86/t/5f755202fcfe7968a6b20e2f/1601524229069/NACAFV+-+EN+-+Anangosh+Manual.pdf>.
Centre for Excellence for Matrimonial Real Property, A Toolkit for On-Reserve Matrimonial Real Property Dispute Resolution (Victoria, 2015), online: <www.coemrp.ca/wp-content/uploads/2015/12/Final-MRP-DR-Toolkit-Version-1.0.pdf>.
Michelle Mann-Rempel, First Nations Real Property Laws Final Report (March 2015), online: <www.coemrp.ca/wp-content/uploads/2015/12/report-on-existing-first-nation-matrimonial-real-property-laws.pdf>. See appendix for list of First Nations with Matrimonial Property Laws.
Government of Canada, Benefits Finder, online: <srv138.services.gc.ca/daf/q?id=7e48b4c8-9635-4b0e-83d1-75acccecd0d8&GoCTemplateCulture=en-CA>.

Endnotes

[1] Indian Act, RSC 1985, c 1-5.

[2] The Constitution Act, 1867, 30 & 31 Vict, c 3, s 91(24).

[3] Indian Act, supra note 1,s 18.

[4] Ibid. Sections 24 and 28 of the Act operate together to prohibit the transfer of reserve lands to any entity other than the band or band members. This effectively limits the market for on-reserve housing. Section 89 of the Indian Act exempts all reserve lands except leasehold interests in designated lands from seizure and mortgages.

[5] Ibid. Canada, Crown-Indigenous Relations and Northern Affairs Canada, Evaluation of On-Reserve Housing (January 2017), online: <www.rcaanc-cirnac.gc.ca/eng/1506018589105/1555328867826>.

[6] Indian Act, supra note 1,s 88; Atira Women’s Resource Society, Your Rights on Reserve: A Legal Tool-kit for Aboriginal Women in BC (Vancouver, January 2014), online (pdf): <www.atira.bc.ca/sites/default/files/Legal%20Tool-kit-April-14.pdf>[Atira, Rights on Reserve].

[7] Divorce Act, RSC 1985, c 3 (2nd Supp).

[8] Ibid; Atira, Rights on Reserve, supra note 6, at 43-44.

[9] Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20 [FHRMIRA]. FHRMIRA does not apply when a First Nation has its own relevant laws, for example, a Land Code under the First Nations Land Management Act, SC 1999, c 24. Canada, Frequently Asked Questions- Family Homes on Reserves and Matrimonial Interests or Rights Act (September 2011),online: <www.canada.ca/en/news/archive/2011/09/frequently-asked-questions-family-homes-reserves-matrimonial-interests-rights-act.html>

[10] FHRMIRA, supra note 9;Atira, Rights on Reserve, supra note 6, at 46-50.

[11] Criminal Code, RSC 1985, s C-46, s 810; Atira, Rights on Reserve, ibid, at 74-75.

[12] FHRMIRA, supra note 9, s 20(1), (2).

[13] Ibid, s 20(3).

[14] Ibid, s 20(4).

[15] Ibid, s 16(1).

[16] Ibid, s 16(9).

[17] Ibid, s 16(4).

[18] Ibid, s 16(5).

[19] Atira, Rights on Reserve, supra note 6, at 12, 37, 49, 78.

[20] Tsleil-Waututh Nation, “TWN Laws & Bylaws”, online: <https://twnation.ca/twn-laws/>; TWN Matrimonial Real Property Law 2015, part 8 & 9.

[21] Canada, EI Regular Benefits: Do you qualify? (October 2021), online: <www.canada.ca/en/services/benefits/ei/ei-regular-benefit/eligibility.html>.

[22] National Aboriginal Circle Against Family Violence, Anagosh: Legal Information Manual for Shelter Workers (Quebec, March 2017) at 55, online (pdf): <static1.squarespace.com/static/5f738ba8104fc0629adf2e86/t/5f755202fcfe7968a6b20e2f/1601524229069/NACAFV+-+EN+-+Anangosh+Manual.pdf>

[23] The Constitution Act, supra note 2,ss 91, 92; Atira, Rights on Reserves, supra note 6, at 12; Indigenous Services Canada, On-reserve Income Assistance program (23 June 2020), online: <www.sac-isc.gc.ca/eng/1100100035256/1533307528663>; Indigenous Services Canada, Income Assistance National Program Guidelines 2019 to 2020 (Ottawa: Indigenous Services Canada, 03 Dec 2019), online: <www.sac-isc.gc.ca/eng/1565185888233/1565187157281>.