The First Nations Land Management Act (FNLMA) was passed by the federal Parliament in 1999 on the initiative of fourteen Indian Act Bands wishing to escape the land management provisions of the Indian Act in order to improve their capacities and opportunities for economic development. The Act provides the term "first nation" means an Indian Act band named in a schedule. Additional First Nations may request the Governor-in-Council to have the Act applied to them.

A Framework Agreement on First Nation Land Management between Canada and the 14 First Nations anticipated the legislation and describes its key components and is described as "a government to government agreement within the framework of the constitution of Canada".¹⁶⁰ The Agreement states that it is not a treaty within the meaning of s. 35 of the Constitution Act, 1982.

Each community opting to come under the FNLMA is required to adopt a land code in accordance with the Framework Agreement which is to replace the land management provisions of the Indian Act. Validly adopted land codes have the effect of law. The Framework Agreement anticipates the adoption of First Nation laws to address the specific issue of matrimonial real property as part of a comprehensive land code. Article 5.4 of the Framework Agreement provides:

In order to clarify the intentions of the First Nations and Canada in relation to the breakdown of a marriage as it affects First Nation land:

1. a First Nation will establish a community process in its land code to develop rules and procedures, applicable on the breakdown of a marriage, to the use, occupancy and possession of First Nation land and the division of interests in that land;
2. for greater certainty, the rules and procedures referred to in clause (a) shall not discriminate on the basis of sex;
3. the rules and procedures referred to in clause (a) shall be enacted in the First Nation's land code or First Nations laws;
4. in order to allow sufficient time for community consultation during the community process referred to in clause (a), the First Nation shall have a period of 12 months from the date the land code takes effect to enact the rules and procedures;
5. any dispute between the Minister and a First Nation in respect of this clause shall, notwithstanding clause 43.3, be subject to arbitration in accordance with Part IX;
6. for greater certainty, this clause also applies to any First Nation that has voted to approve a land code before this clause comes into force.

The FNLMA requires each community to establish a community consultation process for "the development of general rules and procedures respecting, in cases of breakdown of marriage, the use, occupation and possession of first nation land and the division of interests in first nation land" among other required elements of the land code¹⁶¹ Subsection 17(1) provides that a First Nation shall, following community consultations, "establish general rules and procedures in cases of breakdown of marriage, respecting the use, occupation and possession of first nation land and the division of interests in first nation land." Subsection 17(2) requires each first nation within twelve months after its land code comes into force, to incorporate the general rules and procedures into its land code or enact a first nation law containing the general rules and procedures. Under subsection 17(3) the First Nation or Minister may refer any dispute relating to the establishment of the general rules and procedures to an arbitrator in accordance with the Framework Agreement.

Notable aspects of the treatment of the matrimonial real property issue under theFNLMA are:

• The Agreement and the Act are ambiguous on the question of whether laws adopted by First Nations are an exercise of delegated federal power or are an exercise of inherent First Nations jurisdiction;
• While the requirement to address the matrimonial property issue within 12 months of adopting a land code is worded in mandatory language in s. 17, the implementation of this commitment is dependent on at least three separate actions by the First Nations in question: first on consultations being undertaken, then on the drafting of rules and procedures and finally on the incorporation of the rules and procedures into the land code or enactment as a first nation law under theFNLMA;
• There is no apparent means for individual members of First Nations to enforce the mandatory requirement to enact rules and procedures addressing the matrimonial real property issue;
• A requirement for non-discrimination on the basis of sex is contained in the Framework Agreement and appears to be referentially incorporated into the Act by s. 17(1);
• The requirement for non-discrimination on the basis of sex refers only to the rules and procedures and not to the law that is ultimately enacted;
• The requirement to address matrimonial real property applies to breakdown of "marriage" - it is not clear whether this is intended to apply to customary marriages or to common law relationships;
• TheFNLMA explicitly provides for the power of First Nations to adopt land codes dealing with interests in first nation land held pursuant to allotment under the Indian Act or "pursuant to the custom of the first nation", as well as licences and leases¹⁶² and provides explicit authority to pass "rules and procedures"¹⁶³ in cases of breakdown of marriage.¹⁶⁴ (It is not clear whether this power includes matters relating to domestic violence.)
• Band council lawmaking power in this area is subject to community approval defined as 25% plus one of eligible voters (this now includes members living off-reserve as a result of the Supreme Court of Canada decision in Corbiere);
• The lack of an interim or default statutory regime pending the adoption of First Nations matrimonial property laws;
• The statute and the Framework Agreement do not specifically address the issue of First Nations jurisdiction to determine matrimonial property rights in situations of violence;

So far, four of the fourteen First Nations to which theFNLMAapplies have adopted a matrimonial property law (Mississaugas of Scugog Island First Nation, Muskoday First Nation, Georgina Island First Nation and Lheidi T'Enneh First Nation). The four laws are quite similar to one another.

The Chippewas of Georgina Island First Nation passed a Matrimonial Real Property Law under theFNLMAin December 2000. One of the preambular paragraphs declares the intent to provide "rights and remedies, without discrimination on the basis of sex, with respect to spouses who have or claim interests in First Nation land upon the breakdown of their marriage". The law applies only to interests in First Nation land or claimed pursuant to the law. The law does not apply to situations involving two spouses, neither of whom is a member of the First Nation.

Matrimonial home is defined as:

an interest in First Nation land that is or, if the spouses have separated, was at the time of separation, ordinarily occupied by the person and his or her spouse as their family residence, and where a parcel of First Nation land that is an interest in First Nation land for purposes of this law includes a matrimonial home and is normally used for a purpose other than residential, the matrimonial home is only the part of the interest in First Nation land that may reasonably be regarded as necessary to the use and enjoyment of the family residence.

The definition of "spouse" in this law may include marriages under provincial law as well as customary law (the issue is not clear) but does not appear to include common law marriages:

1. are married to each other; or
2. have together entered into a marriage that is voidable or void, in good faith on the part of the person relying on this clause to assert any right under this law.

Part 2 of the law contains provisions relating to domestic contracts. Part 3 provides the Lands Advisory Board with authority to administer mediation for spouses unable to conclude their own domestic contract regarding their respective interests in matrimonial real property. This includes provision for "compulsory mediation." The costs of mediation are to be paid equally by each spouse. Successful mediation is to result in a written separation agreement that contains the agreement of the parties respecting interests in First Nation land; and is to include provision for all interests in First Nation land held by either spouse, or both spouses.

Focus Group participants expressed a strong interest in mediation processes and emphasized the need for these to reflect First Nation traditions and values respecting dispute resolution. However, difficulties could arise where mediation is mandatory and a First Nation woman is leaving a relationship that involved violence. Many women feel intimidated by the man and may agree to a settlement because they fear the consequences of refusing. Specific mediation techniques are clearly needed to address these situations.

It is not clear from the mediation requirement in the Matrimonial Property Law whether both parties will also have access to independent legal advice on whatever agreement may be reached.

Part 4 provides for access to a court of competent jurisdiction (the Ontario Superior Court of Justice or the Unified Family Court of Ontario) where mediation under Part 3 is not successful. In such cases, a court of competent jurisdiction may deal with interests in First Nation land held by either spouse, or both spouses, in a manner consistent with the provisions of the Family Law Act (Ontario). This means provincial matrimonial real property law relevant to the ownership, possession or occupancy of real property, the division of interests in real property, and net family property representing the value of interests in real property would apply on the relevant reserves on a case by case basis (as parties bring applications to court for this purpose). (It should be noted that any approach involving the further application of provincial matrimonial property laws were regarded by some Focus Group participants as not supportive of general First Nation goals of reasserting community control over property issues and reclaiming First Nations traditions.)

There are no provisions addressing situations where parties cannot afford the cost of the compulsory mediation. This may be a barrier to lower income spouses, and ultimately a barrier to access to the courts where a more difficult and wealthier spouse holds a CP to the matrimonial home and is less inclined to settle out of court.

Overall, the Georgina Island Matrimonial Property Law is quite comprehensive. Among other matters, the law provides that:

1. the courts may make any order in relation to interests in First Nation land held by a spouse, or by both spouses, that the court may make in respect of real property situated in the province of Ontario, including orders to transfer an interest in First nation land to a spouse absolutely or for partition and sale of an interest in First Nation land held by both spouses;
2. a spouse may apply for an order declaring the right of possession to the interest in First Nation land;
3. regardless of which spouse holds an interest in First Nation land that is a matrimonial home, the court may on application order that one spouse be given exclusive possession, including interim or temporary orders (and provides guidance for situations where children are involved);
4. the possession of an interest in First Nation land under the Matrimonial Real Property Law by a person who is not a member is not assignable and shall be deemed to terminate when that person ceases to use or occupy that interest personally.

Laws, adopted by Mississaugas of Scugog Island First Nation and Muskoday First Nation, are similar to the Georgina Island Matrimonial Real Property Law. Each of these laws represent a huge step forward compared to the situation under the Indian Act. The First Nations under the FNLMA can call on the assistance and resources of the Lands Advisory Board to further develop and refine laws in this area as required.

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