Indigenous and Northern Affairs Committee on April 23rd, 2013

[Greg Rickford, Conservative, Kenora, ON]

Far be it for lawyers to ever disagree about something, but I do believe British Columbia has some kind of provision. It may—

[Christopher Devlin]

It may be that they have new legislation and it may not go as far. I'm not certain about that, but certainly that wouldn't be true across the rest of the country.

You have a very clear definition now in the Indian Act that encompasses customary adoptions and that's something that—

[Greg Rickford, Conservative, Kenora, ON]

It's a residual category then.

[Christopher Devlin]

Yes, it confers civil rights to a class of people that may lose those rights if clause 7 were to go forward as is.

[Greg Rickford, Conservative, Kenora, ON]

Understood.

[Christopher Devlin]

So that's of concern.

The second question, as I recall, related to a time period for the coming into force. We didn't put any specific recommendations in there. We thought we'd leave that to the committee's wisdom.

I would suggest that in order to introduce companion legislation, as we recommend, to fill the gaps that would be created by the repeal of sections 42 to 47 of the Indian Act, I would think we'd be looking at a six months to a year's process in order for Parliament to consider that. That's usually the time that courts give Parliament to change unconstitutional pieces of legislation. I know that's a fairly tight schedule, given how Parliament works, but I think that anything less than a year would be unrealistic.

But that's outside our brief; that's simply trying to answer your question.

[Greg Rickford, Conservative, Kenora, ON]

Yes.

[Christopher Devlin]

Then the third—

[Greg Rickford, Conservative, Kenora, ON]

That question is an invitation, Christopher, to—

[Christopher Devlin]

It is, and that's where I would go with my third answer as well. I think we'd like to be part of a process. The CBA could provide considerable assistance in a process of trying to reimagine a regime for Indian wills and estates, to improve on the existing regime in areas in which it could be concurrent or congruent with provincial and territorial regimes, and then in areas in which a special distinction would still need to be made for land on Indian reserves—that kind of thing.

There is also a host of other pieces of legislation that have to be kept in mind and make it even more complex. You have the matrimonial real property on reserve; that's coming into force soon. You have land codes under the First Nations Land Management Act. All of these different regimes have different land consequences for Indians with land on reserve as they try to pass it on to their beneficiaries.

So I think we would love to be part of an ongoing dialogue about how to reform this particular area. That's as much as I can say today, I think.

[Greg Rickford, Conservative, Kenora, ON]

That's six minutes and 58 seconds, according to my stopwatch, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

You're absolutely correct. I wondered whether you had a question that would only take five seconds, but clearly that's not the case.

Ms. Bennett, we'll turn to you for seven minutes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thank you.

Thank you for the brief. It has been very helpful, even in previous hearings. So thank you, even though we're getting you at the end of this.

I guess all of us have been quite concerned that even the language of your brief is pretty strong language. For example:The CBA Section does not support the proposed repeal of sections 42 to 47 of the Indian Act. Significant mischief and hardship will occur if Section 7 of Bill c-428 is enacted....

I think it speaks to what my colleague said, that somehow we need to persuade the committee that the right thing to do is to vote no to that clause, with the provision that you and others would perhaps work with the member for a companion bill that could come forward in due course to deal with the complexity of this wills and estates piece, and to ensure that there's no void and that the problems you've articulated are dealt with in a comprehensive way.

Is that your advice to this committee?

[Christopher Devlin]

Yes, it is.

Part of my practice—not a big part, but a part of my practice—involves Indian wills and estates, and there are enough complications under the current regime. I think this is why it would be of interest to the CBA to participate in some sort of law reform in this area.

Even now under the Indian Act, because you have beneficiaries of Indian wills—some of whom are members, some of whom aren't, some of them status Indians, some of them not—any time you have a devise of real property on a reserve it can become intensely complicated. This means not only hardships for the family members involved, who have often grown up together but because one of them is a status Indian and one of them isn't, one is entitled to get the land and the other is not. Then they are forced to sell the land. You have to have a section 50 sale so that you can liquidate, so that the non-Indian can actually get the value under the will. These are hardships that exist now. The hardships we've identified in the paper would just exacerbate the situation.

So you have the hardships to these individuals, but then you also have the hardships to bands as a whole. If you have land on reserve that ends up not being able to be devised, such that it stays in the name of deceased Indians for years, it is very hard for band councils and first nations to then engage in any kind of land reforms on their own reserve, for land development issues. It locks in land almost in perpetuity to non-development, to non-use for other band members that would allow the first nation to move forward.

I've seen this with more than one client. You can have literally generations of land disputes that paralyze a reserve and prevent either the individual landowners from developing their land or the band as a whole from developing their land. These can ultimately be governance issues that are very complicated to unpack, and to the extent that we can prevent this happening or avoid exacerbating that situation, I think we ought to try to reform it so that it doesn't happen.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Was the CBA consulted before this bill was tabled?

[Christopher Devlin]

No.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Your first choice is that we vote no to clause 7.

[Christopher Devlin]

Correct.

[Carolyn Bennett, Liberal, St. Paul's, ON]

The second choice is that we amend it to say that it would not come into force until there has been companion legislation introduced.

[Christopher Devlin]

Correct.

[Carolyn Bennett, Liberal, St. Paul's, ON]

And the third choice is to put five band-aids on it.

[Christopher Devlin]

Correct.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Okay.

I think those are pretty clear instructions for the committee.

Obviously the consultation process is a huge concern to all of us. Without some sort of government-to-government consultation, this is probably not the way to go.

Although do you agree that for these sections that are antiquated, it is a step forward to actually allow the private member to eliminate these things, which have never been used and are completely outdated?

[Christopher Devlin]

Yes.

For the residential school sections, for example, there aren't any more residential schools. For the no barter and trade from the Prairie provinces, all the bands of those Prairie provinces have been exempted.

[Carolyn Bennett, Liberal, St. Paul's, ON]

So this would be a valuable bill going forward if it only dealt with those things that really need to be gotten rid of.