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Difference between revisions of "Aboriginal Law"
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→How does family law apply to Aboriginal people?
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Two BC laws – the ''[http://bclaws.ca/civix/document/id/complete/statreg/11025_00 Family Law Act]'' and the ''[http://bclaws.ca/civix/document/id/complete/statreg/96046_01 Child, Family and Community Service Act]''—apply to Aboriginal families on and off reserve. But there are some important exceptions. | Two BC laws – the ''[http://bclaws.ca/civix/document/id/complete/statreg/11025_00 Family Law Act]'' and the ''[http://bclaws.ca/civix/document/id/complete/statreg/96046_01 Child, Family and Community Service Act]''—apply to Aboriginal families on and off reserve. But there are some important exceptions. | ||
The ''Family Law Act'' deals with parenting arrangements, child and spousal support, and division of matrimonial property after family breakdown. But the parts of this law dealing with real property do not apply on reserves. So there is a gap in the law dealing with the ownership, division, and possession of real property on reserves and what happens when a spousal relationship ends or a spouse dies. | The ''[http://bclaws.ca/civix/document/id/complete/statreg/11025_00 Family Law Act]'' deals with parenting arrangements, child and spousal support, and division of matrimonial property after family breakdown. But the parts of this law dealing with real property do not apply on reserves. So there is a gap in the law dealing with the ownership, division, and possession of real property on reserves and what happens when a spousal relationship ends or a spouse dies. | ||
The federal ''Family Homes on Reserves and Matrimonial Interests or Rights Act'' responds to this gap in two ways. First, as of December 16, 2013, it allowed individual First Nations to make their own matrimonial real property laws. A list of First Nations that have done this is available on the website of Aboriginal Affairs and Northern Development Canada. | The federal ''[http://laws-lois.justice.gc.ca/eng/acts/F-1.2/ Family Homes on Reserves and Matrimonial Interests or Rights Act]'' responds to this gap in two ways. First, as of December 16, 2013, it allowed individual First Nations to make their own matrimonial real property laws. A list of First Nations that have done this is available on the [http://www.aadnc-aandc.gc.ca/eng/1408981855429/1408981949311 website of Aboriginal Affairs and Northern Development Canada]. | ||
Second, as of December 16, 2014, the federal law has provisional (or temporary) rules that apply until First Nations make their own laws. The provisional rules allow for three types of orders: emergency protection orders; exclusive occupation orders; and orders on the division, ownership, and transfer of the interests or rights in real property under sections 29 to 33 of the federal law. If you live on reserve, and you need an order—especially an emergency order to protect yourself, your property, or your family—get legal advice. | Second, as of December 16, 2014, the federal law has provisional (or temporary) rules that apply until First Nations make their own laws. The provisional rules allow for three types of orders: emergency protection orders; exclusive occupation orders; and orders on the division, ownership, and transfer of the interests or rights in real property under sections 29 to 33 of the federal law. If you live on reserve, and you need an order—especially an emergency order to protect yourself, your property, or your family—get legal advice. | ||
Aboriginal Affairs and Northern Development Canada has more on this topic. So does the Centre of Excellence for Matrimonial Real Property (hosted by the National Aboriginal Lands Managers Association). | [https://www.aadnc-aandc.gc.ca/eng/1100100032553/1100100032557 Aboriginal Affairs and Northern Development Canada] has more on this topic. So does the [http://www.coemrp.ca/ Centre of Excellence for Matrimonial Real Property] (hosted by the [http://www.nalma.ca/ National Aboriginal Lands Managers Association)]. | ||
Also, other rules may apply if an Indian band or First Nation has signed a modern treaty or has a matrimonial property regime under the ''First Nations Land Management Act''. | Also, other rules may apply if an Indian band or First Nation has signed a modern treaty or has a matrimonial property regime under the ''First Nations Land Management Act''. | ||
The ''Child, Family and Community Service Act'' deals with child protection on or off reserve. Some First Nations have their own child protection agencies with authority from the province. This means the First Nation hires its own social workers and applies community standards, as far as this law allows. Most First Nation child protection agencies have authority on reserve only, but work closely with social workers from the Ministry of Children and Family Development to help families living off reserve. The Act also applies to First Nations with modern treaty agreements, subject to the agreements. | The ''[http://bclaws.ca/civix/document/id/complete/statreg/96046_01 Child, Family and Community Service Act]'' deals with child protection on or off reserve. Some First Nations have their own child protection agencies with authority from the province. This means the First Nation hires its own social workers and applies community standards, as far as this law allows. Most First Nation child protection agencies have authority on reserve only, but work closely with social workers from the Ministry of Children and Family Development to help families living off reserve. The Act also applies to First Nations with modern treaty agreements, subject to the agreements. | ||
The key principles guiding all family laws are the best interests of the child plus protection and safety of the child. To decide on an Aboriginal child’s best interests and safety, courts look at the child’s community, extended family, and culture. | The key principles guiding all family laws are the best interests of the child plus protection and safety of the child. To decide on an Aboriginal child’s best interests and safety, courts look at the child’s community, extended family, and culture. | ||
