Assessing Matrimonial Real Property Law on First Nation Reserves: Domestic Violence, Access to Justice, and Indigenous Women

Abstract

This thesis offers a doctrinal analysis and assessment of the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) and the case law and legislative history that led to its enactment. FHRMIRA operates on First Nation reserves with respect to matrimonial real property and includes provisions dealing with the division of property upon relationship breakdown or death of a spouse and protections from domestic violence, like emergency protection and exclusive occupation orders. This thesis assesses the utility of FHRMIRA with respect to the protection it provides to Indigenous women experiencing domestic violence, as well as their access to justice in this context. In addition, it examines the challenges First Nations experience enacting their own matrimonial real property laws, whether under FHRMIRA or other legal frameworks. It also includes a review of First Nations matrimonial real property laws enacted pursuant to FHRMIRA and the extent to which they protect against domestic violence. Lastly, the thesis discusses qualitative interviews undertaken in a collaborative case study with the Ermineskin Cree Nation to understand how one First Nation governs in this area. The thesis argues that in order to ensure that Indigenous women have access to justice and protection against domestic violence, a holistic, Nation-specific approach must be taken to enacting matrimonial real property laws on reserve, and these legal regimes should be determined by the First Nation itself, in order to mitigate the jurisdictional confusion and implementation challenges arising from the FHRMIRA.