Law, property and power: a critical legal geography of matrimonial real property on reserve

Until recently, spouses living on First Nation reserves in Canada did not have access to legal recourse when dealing with their family homes following the dissolution of their relationships. Federal law governing life on First Nation reserves did not address the division of matrimonial real property (MRP), and provincial/territorial law had limited application on reserve. In response to mounting concerns about this “legislative gap,” the federal government undertook a nation-wide “consultation” process (2006-2007) aimed at identifying a viable legislative solution to deal with MRP on reserve. The outcome of this process was a seemingly straightforward piece of property legislation that would apparently resolve the legislative gap while simultaneously addressing First Nation concerns around jurisdiction, culture/tradition, and consultation. However, despite being championed as a viable legislative solution, the Act was not widely supported. This research is broadly concerned with exploring theories of property to understand various ways in which property is conceptualized. I trace why these different and often competing conceptualizations of property matter in the context of matrimonial real property on reserve. The study is informed by critical legal geography literature and theories of property that argue spatial-legal categories are not fixed, apolitical and neutral. Rather, they are contested, enacted and inextricably linked to relations of power. I analyze discourses around “solving” the legislative gap in order to highlight the ways in which dominant conceptualizations of property serve to bracket matrimonial real property on reserve, and I consider the discursive “work” of property with respect to matrimonial real property on First Nation reserves in Canada. This research expands an understanding of the potential performativity of property with respect to matrimonial real property, and explores the applicability of property theory to questions concerning Indigenous people(s) and spaces in colonial contexts. Exploring the legal geographies of property on reserve is relevant to current Canadian political and social life, and this research contributes greater insight into and appreciation of this under-theorized topic.