Indigenous and Northern Affairs Committee on April 23rd, 2013

[Christopher Devlin]

Even now, the department sometimes has copies of bylaws, sometimes it doesn't. It can be very tricky to find all the bylaws that a first nation has passed. Even in the current system, the departments may or may not have all the bylaws of a particular first nation on hand.

[Stella Ambler, Conservative, Mississauga South, ON]

So for you, the First Nations Gazette would be at the top of the list, if you had to write them.

[Christopher Devlin]

Yes, it's the easiest one to have access to.

[Stella Ambler, Conservative, Mississauga South, ON]

Is it available online?

[Christopher Devlin]

I think it is. I'm not sure. It is widely published across the country.

[Stella Ambler, Conservative, Mississauga South, ON]

Okay. I'm thinking of the access to the bylaw change from the perspective of someone living in the community as well as for the general public, so not just for the members.

[Christopher Devlin]

Not all first nations have websites. Some do, some don't. Some have websites that were put up 10 or 15 years ago. They're not updated. That can be a tricky requirement as well.

[Stella Ambler, Conservative, Mississauga South, ON]

Fair enough.

I just have one more question I'm wondering about. If Bill C-428 is enacted, then will first nation communities be able to review, repeal, amend bylaws once it's enacted? Given this new independence—I probably shouldn't use the word “independence”, but in effect it is—will they then be able to amend them just as any other jurisdiction would be able to?

[Christopher Devlin]

The bylaw-making power isn't being changed. What's being changed is the minister's ability to disallow a bylaw made under section 81 of the Indian Act. So the chief and council would still be able to make amendments to bylaws, repeal bylaws, make new ones. Bill C-428 isn't proposing to change the actual power to make bylaws. It's just proposing to change—

[Stella Ambler, Conservative, Mississauga South, ON]

The power of approval.

[Christopher Devlin]

—the minister's power to disallow bylaws made by first nations.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you very much.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn now to Mr. Genest-Jourdain, for five minutes.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Good morning.

I have read your brief on the potential impacts if section 47 of the Indian Act were repealed. Some of the comments in committee were on the impact this could have on the recognition of holograph wills, that is, handwritten wills, and on the problems this could represent in civil law. This is particularly relevant in Quebec, where holograph wills are not automatically deemed valid. Holograph wills must therefore be validated and authenticated by courts to be seen as valid.

I would like to hear your opinion on this.

[Christopher Devlin]

Thank you for the question.

My understanding of the civil law is very brief, but going by the research we did, we understand that the only time wills need to be authenticated in Quebec is when they are actually being challenged. The usual practice is that wills are deemed to be as they are unless they are so challenged in court, and then they are.

That was the information we received.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

No, it is a requirement as soon as you are dealing with holograph wills. They must be authenticated by a court. Otherwise, they are not valid. This is one of the basic premises for recognizing holograph wills and presenting them in court.

[Christopher Devlin]

Under the Indian Act right now, the holographic will, just a piece of paper signed by a testator, is deemed to be valid. Under the changes, then, similar to other provincial jurisdictions, in Quebec the laws you've described would prevail, and the Indian wills for Indians ordinarily resident on reserve would have to be validated in court.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

In your opinion, what could be the economic impact of this change, given the socio-economic realities of Indian reserves and the costs associated with presenting and producing documents in court and introducing this type of document?

[Christopher Devlin]

I think it's true of all aboriginal communities located in rural or remote locations that access to justice is a huge issue. If you have to go to court to prove your will, and go through those sorts of processes, as opposed to being able to rely on Indian Affairs to assist you with it, it's going to increase the cost. Particularly for people of modest means who are very distant from court services, it could make the difference between having a will probated or approved by a court or not, and, notwithstanding the existence of the will, families just not being able to access the court system. Then it remains unresolved.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Thank you.

How much time do I have left, Mr. Chair?

[The Chair, Conservative, Chris Warkentin]

You have about a minute and a half.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

I will share my time with my colleague.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

No, I think we can just wrap it up, Chair.

[The Chair, Conservative, Chris Warkentin]

Yes. I think we'll complete with that.

I appreciate your willingness to come here this morning, Mr. Devlin and Ms. Thomson. For those of us from western Canada, it's even earlier, so we certainly appreciate your willingness to be here and your being so prepared this morning.

We'll suspend the committee meeting for just a few minutes while we get our panel set up for the round table.

[The Chair, Conservative, Chris Warkentin]

Colleagues, we're going to resume the meeting. I'll call it back to order.

Today we're undertaking a different process for the second hour. As committee members, you're aware that we're going to undertake a little bit more of a round table approach to this second hour. We'll begin by simply going around the table and introducing ourselves, and then we'll begin the process of speaking generally about the bill we have before us today.

My understanding is that there are some members, witnesses this morning, who had hoped they could submit a 10-minute statement or an opening statement that would be included in the evidence of the committee hearing. It won't be read, but it will be tabled with the committee, and then will be included in the evidence of the committee. That is well within the provisions of the committee, so if there are members who would be interested in including that, I would be happy to receive that. I think there is support from committee members to ensure that happens.

We have Ms. Bennett on that point.