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.