Bill C-428 (Historical)

Indian Act Amendment and Replacement Act

An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement

This enactment amends the Indian Act to require band councils to publish their by-laws and repeals certain outdated provisions of the Act.
It also requires the Minister of Indian Affairs and Northern Development to report annually to the House of Commons committee responsible for Aboriginal affairs on the work undertaken by his or her department in collaboration with First Nations and other interested parties to develop new legislation to replace the Indian Act.

[Michael Anderson, Policing and Public Safety Advisor, Manitoba Keewatinowi Okimakanak Inc.]

Fourth, although we've made some progress regarding the recognition, respect, enforcement and prosecution of band bylaws, First Nations Land Management Act laws have not been enforced by policing authorities or prosecuted by Crown prosecutors for 20 years, since the coming into force of Bill C-49 in 1999.

As to the enforcement of land code emergency laws, the RCMP says, “The RCMP recognizes First Nations' authority under the FNLMA. However, there are concerns as to whether the FNLMA Land Codes provide the legal authority to enact COVID-19 related laws.” Please see page 13 of our documents.

ISC says, “I appreciate the frustration felt by First Nations who have taken on such fundamental aspects of their governance through the enactment of a Land Code, only to be forced to rely on Indian Act authorities”. Please see the MKO's book of documents, page 16.

The Public Prosecution Service of Canada says the role of PPSC set out in the Director of Public Prosecutions Act is inapplicable to FNLMA land codes and FNLMA first nation laws.

Fifth, there's a harmful uncertainty related to the appointment and empowerment of first nation safety officers to act as peace officers. Simply put, you have to be a peace officer to stop, search, seize and detain, and you need those four powers in order to effectively enforce first nation bylaws under subsection 81(1) and section 85.1 of the Indian Act.

Sixth, PPSC and the RCMP do not accept the validity of Indian Act bylaws enacted after December 15, 2014. Parliament repealed the ministerial power of disallowance and approval of Indian Act bylaws effective December 15, 2014, with the coming into force of Bill C-428. However, as PPSC witnesses have advised this committee and MKO, PPSC will not recognize the validity of bylaws enacted on or after December 16, 2014, unless reviewed by “an appropriate federal government department.”

PPSC, Indigenous Services Canada and the RCMP have each advised this committee and MKO that they will not review bylaws enacted after December 15, 2014. Therefore, there is no federal department that will review existing Indian Act bylaws enacted after December 15, 2014. This means that the protocol will not apply to any existing post-Bill C-428 bylaws, including the health and safety bylaws and their related health orders that have been specifically enacted to address the COVID-19 pandemic. PPSC's acceptance of MKO's proposal to conduct a third party review along with the Public Interest Law Centre appears to be the principal, if not the only, pathway to ensuring that the protocol will apply to the existing first nation COVID-19 emergency laws in the MKO region.

Seventh, the gaps uncovered by the COVID-19 pandemic, including those highlighted in evidence recently presented to this committee, reveal that the legislative framework, the federal civil service and policing authorities are incapable of supporting or are unwilling to support the exercise of first nations' self-determination and law-making powers enacted by Parliament through Bill C-428 and the First Nations Land Management Act.

Grand Chief Settee has a concluding comment.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

I thank the witnesses for coming in.

Allan, you mentioned in regard to the Indian Act how it's impeding development for first nations business opportunities on reserve. One of the things we mentioned, or what first nations have been doing or have been in partnership...was the First Nations Land Management Act, and how that's providing opportunities for businesses. You look at Osoyoos; you look at Westbank where they've moved away from that and we've seen them grow.

One of the things that Carol mentioned was in regard to first nations being able to draft their own legislation. Bill C-428, which I drafted, would allow first nations to develop their own band bylaws. Would that assist? That's one.

Two, in regard to first nations, also in my private member's bill, the Indian Act would actually be removed, and first nations could grow their own crops and sell them. How do you feel about that? Do you feel it would be beneficial?

I look at opportunities for first nations across Canada. They have different soils where things could be grown. You look in, say, Ontario where tobacco is being grown, for instance. You look in the Prairies where wheat, potatoes, corn, and anything like that can be grown for, say, alcohol production. Then you look at B.C., where they're actually growing grapes and making their own wine in Osoyoos. Could you elaborate further on that?

[The Chair, Conservative, Joe Preston]

It was in camera, so I can't discuss how painful it truly was.

The request for the project budget for the study of Bill C-428 is being distributed right now. It explains that we'll be doing a fair bit of video conferencing, along with the witnesses we've already had.

We're asking for a budget of funds in order to complete this study.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

It's just a segue with regard to that.

Hypothetically speaking, if my private member's bill, Bill C-428, does pass through the Senate, it will give first nations the right to form their own bylaws. That's a very key component of my bill. It's about self-governance. I think that's one component where first nations can use it.

As a follow-up with regard to wills and estates, would that give first nations the right or the option to put in their own bylaws about wills and estates, to be administered by their own communities, without them violating the current structure or constitution?

Is that a solution?

[Brock A. F. Roe]

There are two avenues by which I see this coming. One involves the clients we have who have to deal with these matters on reserve. I can't breach solicitor-client confidentiality, obviously, but this is the way I see the issue come in. I try to analyze it with the facts and I go to look at the law, as a typical lawyer would do, and I become frustrated. I look at the antiquated provisions and I say that there's no answer here for me, that I have to look at this and be creative. And lawyers will be creative; that's how you develop the common law around a subject. But it's incredibly frustrating. You're walking on eggshells, because you don't know whether a particular area has been proven or not, or whether it's going to be accepted by the judge, or whether the clients will like the advice you can give them.

That was one avenue. The other avenue on this.... I had no idea about this process until, actually, I heard about Mr. Clarke's private member's bill wanting to change certain portions of the Indian Act by taking out antiquated provisions. I had only printed if off—I think it was a year ago or so—and taken a very quick skim of it and said, “Oh, there's the wills and estates in there.” I remember thinking at the time—it was at about the same time the other matter I was dealing with at work came up—that I didn't think this was going to work, because if you're taking those provisions out, what is left in their place to deal with the possessory interests of the reserve land? That thought was similar to what Christopher Devlin, Mr. Gailus' partner in his law firm, provided in his report when this committee was studying Bill C-428.

[Brock A. F. Roe]

Similar to my colleague, I'm going to make some remarks on a broader level on issues that we see and some things that should be addressed.

Because this committee is discussing how to deal with the administration of the estates of first nations, i.e., the stuff that indigenous people possess and own, meaningful consultation obviously needs to take place with first nations on any changes that are desired, keeping in mind those objects that Ms. Richer just reiterated. It's important to remember that first nations in Canada have their own indigenous legal orders as well.

It's also important to remember that those first nations have been dealing with property of their own for a very long time. If we want to consider making changes to how a deceased first nations person's possessions are to be dealt with in Canada, then we need to consider how indigenous peoples in Canada already have been dealing with their property in the past, according to their own legal orders, how they can deal and are dealing with it now, and how that work can be supported by Parliament with sufficient resources.

Also, let us remember that the relationships between the crown and a large number of first nations in Canada are based on treaty. Do not be surprised when engaging on these issues if first nations come to it from a treaty perspective. For those first nations who have no treaty with the crown, be prepared to engage in a process from an aboriginal rights perspective, right? Those are two very different frames of mind.

We also understand that previously, under MP Rob Clarke's private member's bill, Bill C-428, a number of antiquated sections were removed, more or less, from the Indian Act. Subsequently, certain sections within the bill relating to wills and estates were then removed from the bill, so here we are today discussing these same sections, the wills and estates sections.

Before we get into a dialogue, I also want to highlight some important concepts and issues or items that ought to be considered in any type of amendments going forward. These are sporadic, by the way. I tried to organize them into some meaningful sense, but wills and estates are complicated and encapsulate a large area of law jurisdiction. I tried to filter it into some type of organizational paradigm.

One is the concept of “ordinarily resident on reserve”. It's not just on reserve. Even the “Decedent Estates Procedures Manual” acknowledges this, but this is the guide that the bureaucrats in AANDC use to help themselves when they administer these estates. It also refers to first nations who are on crown land, National Defence land, provincial parkland, national parks, and lands bought by the federal crown for first nations that don't have reserve status. Keep in mind that there are other people who are captured in this, not just people on reserve. In Alberta, there's a group of people living on crown land in the mountains, on the eastern slopes, in the Smallboy camp. That's an example.

Two is dispute resolution. This was discussed on April 8 before this committee as well, in a cursory context. The minister, or AANDC, doesn't have the administrative tool to deal with contentious estates. If some change is desired, consider talking with first nations to see what sorts of ideas they might come up with to deal with dispute resolution. They know their community best, so they would have a good idea of how to deal with contentious matters. Also, you can't just dump another administrative process onto first nations who are already dealing with estates matters. I think those processes need to be supported adequately with resources.

In regard to intestate thresholds, under the intestate provisions of various provincial regimes, there is a threshold dollar amount. The first dollar value would go to the spouse. Afterwards, any remaining value would be split up between the children and the spouse, or however the formula is set out. Currently under the Indian Act that threshold is $75,000. In Alberta it was $40,000 until it was recently amended up to $150,000 in new legislation. I'm not sure about B.C. In Ontario I understand it's $200,000. There's a disparity there that we need to consider. I've just been told that it's $300,000 in B.C.

There's a significant difference. We need to consider why there's a difference. Again, it's pretty obvious. Provinces can't deal with possessory interests in reserve lands, right? That's in sections 91 and 92, ultra vires, intra vires, and we have to keep that in mind.

There's also clarity. You can't simply enact a regime where the federal law applies in one context of the administration of estates and then provincial law comes in for another.

I'm trying to think, if a client came to me with a complex matter that considered both of those jurisdictions and the advice I needed to give, I'd have to research both areas of law and put together advice. I can tell you that would cost a lot of money, more than if it was under one regime or the other, simply where there is already an existing body of case law for both.

Regarding family administrators, you will recall previous evidence from Mr. Gray on April 8, that approximately 20% of estates are handled by AANDC administrators, the balance being handled by appointment of family administrators.

We're concerned that AANDC would look at these family administrators with potential liability for any decisions these family administrators make, and AANDC might distance themselves from these family administrators in order to protect themselves from liability.

The family administrators are then kind of left to their own devices to deal with decision-making, and they undergo a steep learning curve just as lawyers do. We need to consider that, and we need to support them in their decision-making, and make sure they have clear guidelines. Otherwise estates matters aren't going to be helped or dealt with.

Next are the provincial government administrators. This was new, and I never knew this before, but on April 8 it was either Mr. Gray or Mr. Saranchuk who said that there are contracts with two provincial governments regarding their administration of estates files.

This was kind of interesting. I thought maybe individuals who are administering those contracts should be brought before committee to discuss how they think it's going, if there's anything they can improve, the same as first nations who are being dealt with under that contract.

There was a comment about regional disparities at the last meeting here as well. AANDC has about a 20% departmental administration take-up. When you break that up across the country, there was serious regional disparity between B.C. and Alberta, for instance. From what I understand, nobody really understood why when I looked at the transcript from the last meeting. So here are my thoughts on that, and this is based on our discussions from the think tank discussion group we had previously.

One, you have to look at how legally recognized possessory interests in reserve land are spread out across the country. In B.C., there are a lot more certificates of possession or certificates of occupancy that are issued, which we can otherwise call lawful possessory interests. In Alberta there are significantly less, so upon someone's death, you're going to be dealing with a lot less than if you were in B.C.

B.C. also has a treaty process that a number of first nations are engaged in. This triggers a lot of people needing to consider all of the outstanding estates because there are outstanding interests in reserve land that need to be taken care of.

Some nations are also considering whether to adopt the First Nations Land Management Act. Again, there are a number of outstanding interests in reserve land that need to be dealt with.

You can think about, if you're going to sell your house on regular titled land, you have a mortgage on title, maybe there's a certificate of lis pendens or some type of writ on your title. Before you sell that to the next person, you need to deal with those outstanding interests on title.

There's the same kind of idea or concept with reserve lands. Before that transfer of land occurs under a treaty or self-government agreement or under FNLMA, you need to deal with all of these outstanding interests in reserve land. So in B.C. you're going to have a pile of certificates of possession that are issued. There are a lot of old estates files that are taking a long time to deal with. I think in B.C. you're going to see more of that than in, say, Alberta just because of those processes.

I think that can explain why there's some regional disparity between the provinces.

In regard to holograph wills, these are rather easy to prepare. The concept is that you take a pen and write down your intentions on what you want to do with your stuff upon your death. As long as it's clear, and you clearly write out your property and your intentions with that, and it's your own signature in your own writing, it's usually non-contentious.

Under the Indian Act provisions under their will making, that's roughly the criteria. There is a set criteria that Mr. Gray and Mr. Saranchuk discussed at the last committee meeting.

If you have this provision of providing a means for a holograph will to be prepared by first nation individuals on reserve, and you replace it with a requirement for a formal will, we're concerned in that what you're saying is that instead of writing something in your own hand that you can do on the reserve with some limited guidance, you're going to need to seek legal counsel on how to prepare a will.

A will is a very different document from a holograph will, and there are certain formalities that need to be addressed. You can't have a beneficiary in your will as a witness to your will. That's going to be tough, because you have to educate everybody. For instance, you trust your sister a lot perhaps because she takes care of a lot of your family's business, but if you also want her to have something, then she can't witness your will, but you want her to help you prepare it.

You're also probably going to want to seek advice on whether or not your bequests or the testamentary dispositions in your will would be valid under your will. For transferring reserve land, if you have a valid lawful possessor interest, like a certificate of possession, you'll want to account for that in your will and transfer it.

There is a concept of something called a buckshee lease, which is what we'll call an unrecognized interest in reserve land, which isn't formally recognized. A lot of first nations live in a trailer in which the family has lived for a long time and everyone knows that they live on a certain piece of land. We can call that an interest, but in terms of the Indian Act, it's not recognized and it's an unrecognized lawful interest. When the individual living in the mobile home on that spot drafts a will, can they actually transfer that spot to someone else? This is something that needs to be addressed in the Indian Act, because there are a lot of interests like this out there.

I would say you need a lot of input from first nations on how that needs to be dealt with, because it's not simply inserting a title regime. There are lots of questions about that because of the collective nature of reserve lands.

Concerning probate, if you want to draft a will, you have to take it to probate and you have to have it approved by a court. If you live on a reserve three hours away, you may have to drive to a courthouse or somewhere to get the information, or maybe you're lucky and you have Internet and you can print it off and deal with it then. You're going to have to pay probate fees. You're probably going to have to seek legal help or legal information of some sort.

I don't know if somebody living on reserve can seek legal aid and whether they're going to meet the threshold requirements for legal aid in the provinces, and as we all know, across the country their budgets have been cut.

As well, what do we do with the 8% of people who have wills already? That was discussed as well. If 8% of first nations people living on reserve are drafting wills and we do something new, is there going to be something provided in any act or wherever that would account for those existing wills? Will those old holograph wills be grandfathered or are we going to require them to get legal advice and draft something new? Those people are going to be hard to find. You have to talk to them and say, “You need to reconsider all this. You can't give that away in that manner. We have to deal with it in a different way.”

Regarding public guardians and trustees, my understanding, based on a think tank discussion group at which we had three public guardians and trustees from Saskatchewan, Ontario, and British Columbia, is that they don't have the current administrative knowledge or expertise with respect to first nations issues on reserve. Some have an idea. There is a body of some case law on it, but not a lot, that they can learn from. They don't have that knowledge, nor do they have the budget to deal with this.

If you want to think about transferring any authority to the provinces to deal with these estates, think about those 3,600 open case files right now and just transferring them over to the provinces. Think of the administrative bureaucratic exercise that goes into saying that one group is in, or that somebody has to deal with the B.C. group because there are a lot more and they will have to have more staff on that. In Alberta, Saskatchewan, the territories, and across the country, it would be the same thing.

Those are just some things to keep in mind, because it seems to be a relatively easy process, but it's actually quite complicated and it's going to take a lot.

Those are my comments.

[John Gailus, Partner, Devlin Gailus Barristers and Solicitors]

Thank you, Mr. Chair. It's good to be back.

I want to thank you for inviting me here to talk about this really important topic. It is complex, and I know it's kind of a vexing issue for a number of first nations and first nations individuals.

Just by way of background, I'm a member of the Haida Nation in British Columbia. I'm also a practising lawyer. I've been practising in the aboriginal law area for the last 15 years throughout western Canada. Prior to that I spent four and a half years working for what was then the Department of Indian Affairs and Northern Development. I spent all of six weeks doing estates and got out of there and moved to lands for another four and a half years. But even working on lands, estate issues always seemed to pop up when we were trying to do economic development on reserve, and it still does today. As part of my practice I do some estates work. I have probably half a dozen files, complex files, usually involving land, usually involving leases of first nation land, so developments on reserve. I don't do any off-reserve estates work, just the on-reserve stuff, so hopefully I can give you a little bit of my knowledge in terms of ways to maybe improve the system.

What I want to talk about, and I want to be really brief on this, is sort of at a very high level, and this is really a question for the committee: what is the issue that needs to be resolved here? Is there a better way to address the wills and estates of status Indians who reside on reserve? I think the answer is yes, but the solution is not simple.

I think it was in February or March my colleagues here on the panel and I were invited here to Ottawa to a think tank that the department had put on to look at potential solutions. A number of solutions came out of that, so when I'm speaking of these solutions, I didn't come up with them myself. These were some solutions that the group as a whole came up with. It was good because we actually had representatives from the province, from the public guardian and trustee, and I was there representing the Canadian Bar Association. My friends here from the IBA were there, as well as people from the department who actually work on a day-to-day basis with these matters.

I think there are four possible responses. The first one is the status quo. I always give this to my clients when I'm giving them advice: do nothing. It's always an option. I'll leave that to my friends from AANDC to talk about. The second is moving to provincial jurisdiction. The third is the first nations control, first nations optional legislation, so something like we just saw recently with the Family Homes on Reserves and Matrimonial Interests or Rights Act. The fourth is amendments to the Indian Act and the Indian estate regulations.

As I said, I'm not going to address the status quo. I just want to point out some issues, though, that came up in terms of moving to provincial jurisdiction. As you're aware, the law is different from province to province. There are significant costs to retaining lawyers and court applications. The question you might want to answer is whether the process is going to be more efficient by moving to a provincial system. My experience is that it isn't. There are questions in terms of how the provincial law will intersect with the Indian Act lands provisions. One of the things that I learned from our think tank was that the public trustee actually charges to manage estates, so there may be a cost either to the individual first nations people or to the department if you decide that you want to move to a provincial system.

There were some submissions that the CBA aboriginal law subsection did on Bill C-428 that identifies some of these issues. I'd recommend them to the committee.

The second option would be moving to first nations jurisdiction. The question that I have is, and my friends probably might answer this, is this something that first nations want? Is this something that first nations should be exercising jurisdiction over? Unlike lands, estates are fundamentally personal matters. Any process would have to be adequately funded if first nations decided to take on this responsibility.

The fourth option would be amending the act and regulations. I think this should be seriously considered.

Much of the current process is policy driven rather than legislation and regulations. It's a fairly lean set of laws that you're dealing with, and there are a number of administrative gaps, as I would call them. One example is whether or not an administrator has to pass their accounts at the end of the administration of the estate. This is something that's required provincially under the Trustee Act, but it seems to depend, when you're talking to the folks at AANDC.

In British Columbia, where I reside and do most of my work, there's been a new act put in place just recently, as of March 31, called the Will, Estates and Succession Act. There are opportunities to look at other pieces of provincial legislation, and to, I'll use the word “cherry-pick”, from these various provincial legislative regimes to develop a comprehensive code.

Finally, I think any recommendations to make changes to the current system must consider: first of all, the constitutional responsibility of Canada under section 91, item 24; the costs that may be associated with individuals moving to a different system from the current system; the cost to the Government of Canada of change, for example, the need to enter into some sort of memorandum of understanding with the provinces for fee for services to manage these small-value estates that the public trustee is now going to be responsible for; whether making changes will lead to efficiencies in the management of these estates; and finally, the long-term cost to families and first nations of lands being tied up in estates.

Thank you.

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

It may not have been brought to the attention of the department, but there was a fairly high-profile case in British Columbia where some ceremonial masks were sold off by a family member. There were some efforts made to recover it, but there was some allegation that the family members who sold it off did not have the rights to those ceremonial masks. So it may not have come to the department's attention, but I think it speaks to the complexity of these matters and where provincial jurisdiction simply would not have the background or the knowledge to deal with some of these complex matters.

I went through the testimony that was before committee on Bill C-428, where of course any number of issues were raised. Certainly one of them was that in other pieces of legislation where it's been suggested that provinces could step in, some serious concerns have been raised about the lack of capacity of the provincial jurisdiction to deal with some of these very unique situations.

[Andrew Saranchuk]

Sorry, I can't remember the question, but I do remember, and you're right, there was an issue about Quebec law and Bill C-428. I'm sorry, but I just can't remember the question at the time.

[Andrew Saranchuk]

Great. Thank you.

I'd like to thank the committee at the outset for providing this opportunity to speak to the administration of wills and estates on reserve.

My name is Andrew Saranchuk. I'm the assistant deputy minister responsible for the resolution and individual affairs sector in the Department of Aboriginal Affairs and Northern Development. That sector of the department includes the residential school settlement agreement, the secure certificate of Indian status card, the office of the Indian registrar, and Indian moneys, estates, and treaty annuities.

I have with me today, Roy Gray, who is the director who leads the Indian moneys, estates, and treaty annuities team, and two of my colleagues from the Department of Justice, Mr. Martin Reiher, acting general counsel, and Mr. Tom Vincent, legal counsel, since this is, of course, an inherently legal issue.

We're pleased to be here today to brief you on the administration of wills and estates on reserve land. I thought it would be helpful to begin by describing the existing system under the Indian Act and the process for the administration of estates. We will then identify some considerations that would likely be relevant to any review in this area that might be undertaken.

As you know, in Canada, wills and estates are a provincial responsibility. Therefore, for most Canadians, the laws of the province or territory where they lived at the time of their death apply to the administration of their estate, whether they died testate, with a will, or intestate, without a will. However, for first nations individuals who are registered or entitled to be registered under the Indian Act and who have died ordinarily resident on a reserve, the administration of wills and estates is the responsibility of the Minister of Aboriginal Affairs and Northern Development. To be clear, the minister does not administer the estates of first nation individuals who live off reserve.

There are some key differences between the Indian Act estates system administered by the minister and the provincial and territorial systems. I will identify five main areas related to the administration of estates on reserve and highlight the main commonalities and differences with the provincial and territorial systems. In doing so, I hope to provide the committee with an understanding of what both the minister and the department do in this area.

I would like to begin by examining the process related to wills.

As I mentioned, when a person dies, they will have either left a will or died without one. In most provinces, before a will is recognized as having legal force, it needs to be probated, which is the process of proving that a document is the valid final will of the deceased. Probate is usually granted by a court. In Quebec, individuals may also register a will with a notary. A notarial will in Quebec has legal force when the testator dies, and it does not need to be probated after their death.

On reserve, the Indian Act and the Indian Estates Regulations provide the legislative framework and administrative guidance for estates and will administration. Under the act, all registered Indians are entitled to write wills. However, after a death, rather than go to a court to have the will probated, the will is sent to a regional office of Aboriginal Affairs and Northern Development Canada, where an official will approve the document on behalf of the minister, based on the conditions set out in the act.

The conditions that need to be met for a will to be approved under the Indian Act are similar to those in the provinces and territories, but not as strict, in certain respects. For example, most provinces require that a will be witnessed, but that is not the case under the Indian Act. The will must also be written and signed by the deceased, and indicate the deceased individual's wishes with respect to the disposition of his or her property upon death.

Once the will has been approved as meeting the basic requirements, family members may challenge it, if they believe there are problems. It is at this stage that the minister, similarly to the provincial system, has the authority to declare a will, or part of a will, void in certain circumstances.

Those circumstances include the following: if the will was written under duress or undue influence; if the testator lacked capacity—for example, owing to illness or infirmity at the time it was made; if the terms of the will would impose hardship on the testator's dependants; if the will disposes of land in a reserve in a manner contrary to the interests of the band or to the Indian Act; or, if the terms of the will are too vague or uncertain and would render the administration and equitable distribution of the estate difficult or impossible to carry out.

This brings me to the second area of estates administration, and that is dispute resolution.

One of the main differences between the Indian Act system and that of the provinces and territories involves the way a will may be challenged.

Since Aboriginal Affairs and Northern Development Canada is not set up to hear and resolve disputes in estates in the same way as courts in the provinces, the general practice has been to transfer jurisdiction of such disputes to a provincial or territorial court. Under the Indian Act, on behalf of the minister, the department has the authority to refer a particular question, or an entire estate, to the court. In either case, the Indian Act continues to apply, but the family can plead their case before a provincial judge, rather than before the department's officials.

The third area of estates administration that I would like to mention is intestacy and the process of appointing estate administrators.

Generally in the provinces and territories, if there is no will, then family members need to apply to a court for letters of administration according to the laws of the province or territory.

Under the Indian Act, if there is no will for a first nation individual living on reserve, family members apply to the department to be appointed as the administrator of the estate. The department will make all efforts to appoint a family member of the deceased to administer the estate. Family members are invited to apply to be an administrator. Once an administrator is selected, the others with an interest in the estate will be given an opportunity to object to the appointment, if they wish. Departmental officials will only be appointed if no family member is willing or able to administer the estate.

In the majority of cases, for first nations individuals who die ordinarily resident on reserve, there is no will in the estate. This means that the intestacy provisions in the Indian Act, found at section 48, apply to determine how and to whom the estate is to be distributed. These provisions are similar to those of the provinces and territories.

Under the act, section 48 specifies clearly how the estate is to be divided in the event there is no will. For example, if there is a survivor, the first $75,000 goes to the surviving spouse. If there is one child, the surviving spouse and the child split the estate after payment of the spousal preference share, and so on. You'll see there's quite a series of rules there. Intestacy can also include the division of any possession of interest in reserve lands that was held by the deceased.

This brings me to the fourth aspect of the Indian Act estates administration that I would like to mention briefly. That is the treatment of reserve land when it is part of an estate, and in particular, the rules of the Indian Act designed to maintain the integrity of on-reserve land.

The Constitution Act, 1867 grants the federal government exclusive jurisdiction over lands reserved for the Indians. This means that provincial and territorial laws cannot deal with the possession of interests in reserve land, and this includes provincial wills and estates legislation. It is for this reason that the Indian Act has rules regarding reserve lands and estates. In particular, the Indian Act clearly states that reserve land interests can only be transferred to people who are members of the first nation that holds that reserve, and this applies in the context of wills and estates as well.

The existing estate process provides that if an heir or beneficiary of the reserve land interest is not a band member, and is therefore not entitled to possess reserve land, under the Indian Act, the minister is obliged to try to sell that land to another band member and give the proceeds of the sale to the heirs or beneficiaries involved. If there is no buyer after six months, the land will revert to the first nation. Clearly, this is a significant difference from the provincial system.

The fifth and final aspect I'd like to note is that various services relating to wills and estates under the current system are provided by the department at no cost to first nations individuals. For example, the approval of wills and the appointment of administrators are both done at no cost to the estates or to the heirs. This is not the case under provincial systems, and there is normally a cost associated with those steps.

That's not to say all costs associated with the wills and estates of first nations individuals living on reserve are covered. In particular, there are costs such as legal costs and the court fees that are not covered for first nations individuals.

The five aspects I just presented relate to the existing system, and hopefully give this committee a sense of what the minister and the department do in this area. But as part of its general responsibility in the area of estates administration, the Department of Aboriginal Affairs has begun exploring how its services in this area could be improved. Since the introduction of Bill C-428 in June 2012, we have spoken with several experts to gain a better understanding of how estates work in the provinces and territories, and where there may be potential intersections and opportunities to improve the current system if changes are desired.

From that perspective, I would like to offer very brief comments to the committee on some of the considerations that would likely be relevant to any possible review or reform of the estates system for first nations individuals on reserve.

At the broadest level, a review could explore whether improvements could be made to the current Indian Act estates system. For example, in addition to its administrative function, as mentioned, the department currently has a role in the resolution of disputes arising from estates. Consideration could be given as to whether or not the department could maintain its administrative role and devolve the judicial function to another body. A review could also explore whether options exist for first nations, or aggregates of first nations such as tribal councils, to have a role in estates administration, particularly with respect to these judicial functions. This would be consistent, of course, with first nations' aspirations for more control over their own affairs and with the objective of reducing departmental and ministerial involvement in their day-to-day lives.

In any review, consideration will have to be given to the jurisdictional challenges that are inherent in any potential changes to the administration of estates on reserve land. The Constitution Act, 1867 grants the federal government exclusive jurisdiction over "lands reserved for the Indians”. The case law has interpreted the constitutional doctrines of distribution of powers to mean that provincial and territorial laws cannot deal with the possession and transfer of interests in reserve land, and this includes provincial wills and estates legislation.

Therefore, some federal rules will presumably always be required at least in respect to reserve lands. However, there might be options for greater application of provincial laws in other areas, although this would obviously necessitate engaging on these issues with provinces and territories to a certain extent.

As part of this, consideration would also have to be given to the fact that if the estates provisions in the Indian Act are removed, an alternative regime would be required to replace them. If no alternative were explicitly identified, provincial or territorial laws might apply to the administration of estates on reserve to the extent that they were not inconsistent with the Indian Act and did not deal with the possession of reserve land. However, it seems clear that provincial and territorial laws would presumably not apply of their own force to the possession or transfer of reserve lands. So, simply removing the provisions of the Indian Act would, at a minimum, create a partial legislative gap meaning that the courts would need to get involved to provide guidance in this area. The result is that meaningful and orderly change in this area is not as simple as simply repealing the estates provisions in the Indian Act. Our advice would be to be clear and explicit about any replacement regime and not leave it to the courts.

Finally, it would likely be relevant to consider the potential implications of modifying the services that are currently provided by the department to first nations individuals, some at no cost, and consider how they would be paid for in the future.

I hope we have made this complex area a little bit clearer. We would be pleased to answer any questions that you might have.

Motions in amendment

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Mr. Speaker, certainly this government is taking steps where we can to provide options for first nations to get out from under the Indian Act. When we look at things like the First Nations Land Management Act, which removes the land related provisions for first nations who want to opt in, the legislation allows first nations to opt out of the Indian Act election system.

The hon. member for Desnethé—Missinippi—Churchill River proposed Bill C-428, which removes several sections of the Indian Act. As the Prime Minister said during the Crown-First Nations Gathering, simply blowing up the Indian Act would leave too big a hole. We need to work with first nations to systematically dismantle the Indian Act and that is what we are doing here. We are taking the election provisions and giving first nations the option to get out from underneath the paternalistic Indian Act.

Indian Act Amendment and Replacement Act

[The Acting Speaker, Conservative, Bruce Stanton]

It being 5:30 p.m., the House will now proceed to the taking of the deferred recorded division on the motions at report stage of Bill C-428 under private member's business.

Call in the members.

The House resumed from November 18 consideration of Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, as reported (with amendments) from the committee, and of the motions in Group No. 1.

[Grand Chief Craig Makinaw, Grand Chief, Confederacy of Treaty 6 First Nations]

Good morning.

[Witness speaks in Cree]

Today I am speaking for the Confederacy of Treaty 6 on Bill C-9.

I am pleased to appear today on behalf of the Confederacy of Treaty 6 First Nations as well as my home nation, the Ermineskin Cree Nation.

As grand chief of the confederacy, I'm tasked with advocating for the protection of our treaty rights which have been enshrined in section 35 of the Constitution Act, 1982, as well as in the sacred agreements themselves. As grand chief I advocate for the 18 member nations and speak from a unified position.

Today I've been tasked with outlining our concerns with Bill C-9, the first nations elections act, and the continued imposition of supposed Canadian authority over first nations and our governance. The problematic sections of Bill C-9 are as follows.

Overall Bill C-9 can be seen as a slight modification on the current default election system outlined in section 74 of the Indian Act. These slight changes, although minimal, have great implications for first nations that rely on their own custom laws or those encountering some leadership issues. According to INAC numbers, out of 617 first nations in Canada, 238 hold their elections according to the Indian Act, 343 hold custom election systems, and 36 are self-governing.

The changes proposed by the bill may be of interest to the 238 that hold their elections in line with the Indian Act, but they will also have implications for those 343 that hold custom elections.

Our specific concern is with clause 3 of the bill in which the opt-in legislation can be applied by order in council to a first nation for which a protracted leadership dispute has significantly compromised governance of that first nation.

Interpretation of this provision could lead to the imposition of the new act on a first nation that is following a custom election system and that is involved in a dispute. By empowering the minister to impose the act, the Government of Canada once gain is overstepping its bounds in regard to first nations governance.

Disputes in leadership are commonplace in politics, yet first nations are the only bodies of which the leadership can be unilaterally changed, be it through the Indian Act or through Bill C-9.

Further to this intrusion on first nations governance, the minister and INAC are given the ability to define who an elector is. Although some first nations have come in line with Corbiere, the onus falls on the government to determine who these bands are and to deal with them individually. There is no unilateral blanket definition of elector.

These intrusions of the federal government continue to serve as a detriment to leadership and to relationship building, and they seem to impose changes that fit the government agenda.

Compounding the definition of elector is the provision that empowers the electors to petition for a change in leadership. This petition exists and is unique to first nations in a very discriminatory fashion, and as well may lead to the attempted application of the provincial judicial system, which is a violation of section 91, class 24, of the BNA Act, 1867.

These issues must be taken into full consideration by the minister and government.

On the right to self-determination, attempting to impose new provisions regarding first nations elections is a violation of their rights as laid out in section 35.

There are also internationally recognized inherent rights of first nations. A UN declaration outlines the rights of first nations in regard to governance. I've referenced four articles in my presentation. I'll just give the numbers, because there are four different sections, as you all know, in the declaration: article 3, “Indigenous peoples have the right to self-determination; article 4, “Indigenous peoples, in exercising their right to self-determination...”; article 5, “Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social, and cultural institutions...”; and article 6, “Every indigenous individual has the right to a nationality.”

The chiefs of Treaty 6 call upon the INAC minister to respect and enact these provisions of the UN declaration, and not simply recognize, but affirm them through practice.

Bill C-9 is not to be construed as a respecting of first nations governance. The reality is that Canada is attempting to define the rules by which first nations govern themselves, and this is not self-determination.

With respect to the contradictory actions of the government, once again we have an example of the government acting contrary to the statement made by the Prime Minister at the crown-first nations gathering in 2012.

Unilateral imposition or altering of the Indian Act was targeted by Harper as a step in the wrong direction, yet we have been provided with numerous alterations and changes through Bill C-45, Bill C-27, Bill C-9, and finally with Bill C-428.

Chiefs call upon the continued attacks on our sovereignty to cease and for the Prime Minister to stand by his words. Archaic provisions of the Indian Act and perhaps the entire act itself must be scrapped. However, the replacement legislation must be created by first nations and embody the relationships that serve as a foundation for this country. A treaty must be fully implemented and enshrined.

In closing, I would like to state that the provisions that allow for a unilateral imposition of the act on those first nations that follow custom election systems must be re-examined as this is a direct violation of our treaty and their inherent rights enshrined in section 35 as well as in section 91, class 24, of the BNA Act, 1867.

The government appears to be making a habit of violating these foundational documents, including the breaking of the treaty with little recourse or penalty. This continued approach will only hamper progress not only for first nations, but for the country as a whole.

The chiefs of Treaty 6 call upon the government to retract all bills that are unilateral in nature and demand that meaningful consultation begin at the nation-to-nation level.

Thank you for your time and consideration today.

I have another paper besides my confederacy paper from the Treaty 6 chiefs. It's from Ermineskin. They are pretty much the same, so as you read them both, the arguments are the same.

Again, thank you for your time and consideration in my being here today.

[Ray Boughen, Conservative, Palliser, SK]

Mr. Speaker, I am very certain that we, in this House, can agree that it is time the first nations gained their independence from what is largely a paternalistic, almost feudal, system of governance, one predicated on an act that is almost obscene in its condescension and paternalism.

The Indian Act is archaic. Enacted in 1876, the act is more than 125 years old and is one of the oldest pieces of Canadian legislation. It has no place in contemporary Canadian society. The first nations deserve to have their own truly indigenous system of governance and are quite capable of doing so.

I am therefore proud to stand in full support of Bill C-428 and the remarkable efforts of the member for Desnethé—Missinippi—Churchill River to bring this matter before the House.

I would point out to hon. members that Bill C-428 is not a full-scale repeal of the Indian Act. Instead, it seeks to amend and replace very specific outdated and antiquated clauses that are either not being enforced or are hindering first nations from achieving lasting cultural freedom and true economic and societal success.

Time and time again in this House, we speak about government accountability, accountability to all our citizens, our constituents, this House, and most critically, our great nation.

Our government remains committed to working with first nations to make changes to elements of the Indian Act that are barriers to first nations governance and economic growth.

Today in this House of Commons, which should and must be representative of all the people of Canada, I would like to speak about another type of accountability, the accountability of first nations governments to their own communities. Bill C-428 would propose to enhance the essential links between those who govern and those who are governed, forevermore.

First nations band councils do not currently have the same opportunities that urban and rural municipalities have to independently develop and enforce bylaws, which are essential for the safe and timely running of their communities.

Unfortunately, there is no requirement for first nations to make their bylaws publicly available to their members. As a result, for years, first nations residents and law enforcement officials have found it difficult to ascertain the specific nature and quality of the bylaws that exist in each individual first nation.

Moreover, in a true testament to the paternalism of the Indian Act, first nations band councils have had to seek out the Minister of Aboriginal Affairs to request approval for each and every bylaw they wish to pass into legislation.

This cumbersome process has caused many bands to wait lengthy periods of time for formal approval, or conversely, to discover that their bylaws have been declined. Other band councils have chosen to completely bypass the minister, and as a result do not openly inform their membership of those changes to band bylaws.

Currently, following the submission of new bylaws to the minister, there follows a 40-day period during which the law properly voted on and passed by the respective band council may be disallowed by the minister. No such legislation exists anywhere in any provincial or municipal act within mainstream Canadian society.

In practise, this process often stretches out to well beyond the 40-day limit, a result of the back and forth between the bureaucracy in Aboriginal Affairs and the band council on change requests to the already passed bylaw.

The proposed bill would eliminate the requirement for aboriginal councils to request approval from the Minister of Aboriginal Affairs for bylaws, which are formalized into law as a matter of course in the various other legislative bodies, be it at the borough, village, or municipal level, as they currently exist within greater Canadian society.

Bill C-428 would create a more transparent and accountable process for all first nations band members and would remove the department and the minister from the equation.

First nations councils would be required to publish their bylaws on their websites or via some readily accessible public communication channel, such as a band newsletter, a widely read local newspaper, television, radio, or some or all of the above.

All first nations communities deserve to have the opportunity to hold their councils fully accountable without external, and at times naive and unenlightened, oversight.

I believe that an integrated step in government accountability lies in providing the ability for all first nations to not only make their own bylaws but to publish them.

Bill C-428 would place the responsibility for bylaw-making powers squarely in the hands of the first nations communities, where it belongs. It would provide the grassroots membership of the bands with greater accountability from their band councils. The requirement to make each first nation bylaw publicly accessible would provide clarity for first nations residents, visitors, and law enforcement officials seeking to understand their collective community obligation to either abide by or enforce the laws within the community.

Bill C-428 would repeal sections of the Indian Act, which, though they might remain in law, are no longer enforceable or relevant. This redundancy confuses the real issues facing the Crown and the first nations. However, before we can proceed, we must remove this redundancy so that we, as a House, can begin to see the portions of the Indian Act that substantively affect the daily lives of the first nations people.

Bill C-428 would seek to bring the language and content of the existing statute into the modern era. By taking concrete steps to amend the language and remove outdated and irrelevant sections of the Indian Act, the bill would address some of the challenges facing first nations communities with regard to their political, social, and economic development.

Firm incremental changes such as these would truly pave the way for further legislation to be developed in collaboration with first nations legislation, which, indeed, would benefit all Canadians.

It is only by building on the goodwill of all Canadians, who I believe wish to see us work together on this momentous journey to bring all of our citizens to greater prosperity and a sense of self-worth, that we can begin to share the true potential of this great land we call Canada.