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Indian Act ‘paternalistic’ on will-making

Focus on: Trusts & Estates Law
|Written By Dale Smith
Indian Act ‘paternalistic’ on will-making
Jacob Kaufman says safeguards available to other Canadians through the courts are generally not available to people registered under the Indian Act.

While most Canadians are free to dispose of property in a will, that right is circumscribed for those indigenous Canadians subject to the Indian Act who live on reserves.

Lawyers say the impact of this can be problematic, but in some cases, it may actually prove more beneficial than being subject to a provincial regime.

“The minister has very wide discretion about what happens when an Indian dies,” says Jacob Kaufman, a lawyer with de Vries Litigation LLP in Toronto, using the terminology within the act. “They can change their estate trustees, they have jurisdiction about carrying out the terms of the will, about administering the property if an Indian dies without a will.”

The matter falls under the jurisdiction of the Indigenous and Northern Affairs Canada estates program.

“INAC encourages family members to take the role of settling the estates of family and friends who have passed away,” says department spokeswoman Stephanie Palma. “In cases where no one is willing or able to administer the estate, INAC will settle the estate by appointing a departmental employee. When required, INAC may refer any estate issue to the provincial or territorial court for clarification.”

Kaufman says that for most other Canadians, there are certain formalities that must be observed, while the minister may accept any sort of written document from an Indian as a valid will, which could be seen as paternalistic.

The minister must approve any will from a registered Indian, and for those who don’t live on a reserve or Crown land, he says, the minister still has a veto over the will.

“The minister could say that I don’t agree with your will, and I’m going to come in and decide whether it’s valid of not,” says Kaufman. “That doesn’t happen with you or I.”

While Kaufman says that the minister may have reasons for invalidation such as it being contrary to public policy or the will being capricious, other Canadians are not subject to these same strictures. It also means that the same safeguards available to other Canadians through the courts are generally not available to registered Indians, who instead must have their affairs turned over to a bureaucrat.

Kaufman notes that while these provisions were upheld by the Supreme Court of Canada, it was at a time before the Charter of Rights and Freedoms, which makes him suspect that it would not go the same way if argued today.

At the same time, the government is considering amendments by the Senate to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), in response to court rulings against the current legislated rules for who is eligible for status. The amendments, if passed, could see the numbers of registered Indians increasing by the thousands, which would also make them subject to these testamentary provisions of the Act.

“People are thinking that this is something that will be helpful to them, and that will respect their identity, not knowing that now the government has authority over your will,” says Kaufman.

The change of status to the current framework under INAC may end up being a benefit to some people, says Lanise Hayes, partner with Nelligan O’Brien Payne LLP in Ottawa, who heads the firm’s Indigenous Law practice group.

“The provincial regime to which all Canadians in their respective provinces are subject when it comes to testamentary issues may not work well in a reserve or an Indian setting because of the fact that there are rules at times about who can reside in a First Nations community,” says Hayes.

Hayes adds that under the Indian Act, common-law partners are recognized as survivors and beneficiaries where they are not under all provincial regimes, such as in Quebec, where a common-law partner has no rights. As well, some traditions wouldn’t be protected under a provincial regime either. Hayes also says the fact that the minister can accept any document as a will is also predicated on the reality that access to lawyers and notaries are limited to those on remote First Nations.

“Whenever I talk about the Indian Act, this is one good example that I raise that people are not aware of,” says NDP MP Romeo Saganash, who was the first Cree lawyer admitted to the Quebec bar. “When I mention it, Canadians are totally shocked. There’s a total fundamental overhaul that is required for the Indian Act.”

Saganash says there needs to be a framework that uses the minimum standards that are part of the United Nations Declaration on the Rights of Indigenous People before any legislative or policy changes are made.

“There are many pieces of the Indian Act that are paternalistic and need addressing, and this is one area that does,” says Conservative critic for indigenous affairs, Cathy McLeod.

McLeod notes that former Conservative MP Rob Clarke had tried to address this issue with a private member’s bill, but it never got traction.

“It’s one of those areas that does need to be addressed, but how are the communities [to] deal with any voids that get left after?” she asks.

McLeod notes that with Bill S-3 and the Supreme Court of Canada decision in Daniels v. Canada (Indian and Northern Affairs) 2016 SCC 12, which affirmed the government’s obligations to non-status Indians and Métis peoples, will take a long time to unravel.

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