Indigenous and Northern Affairs Committee on April 8th, 2014

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Okay. Thank you.

[The Chair, Conservative, Chris Warkentin]

We'll turn to Mr. Boughen.

[Ray Boughen, Conservative, Palliser, SK]

Thanks to the panel for sharing their afternoon with us. We appreciate your input.

As we look at estates and wills, there's a passage that talks about the wife being heir to $75,000 if and when there's $75,000 in the estate to begin with.

Is there anything else that says the wife is automatically entitled to something, or the reverse, is the husband entitled to something? If his wife owns two sections of land, can he be the recipient of that land?

[Andrew Saranchuk]

I didn't mean to imply it was a wife. I think probably in the ordinary course, it's the surviving spouse. Probably in the ordinary course, if I understand society, it's the husband dying before the wife in the majority....

If you look at section 48, it provides those very express rules with respect to intestacy, for somebody who has died at that point without a will. If you have a will, you can put what you want in the will. If you die without a will, then this other system takes over, under section 48, and it uses the $75,000 threshold for the surviving spouse. Then it has a series of other—

[Ray Boughen, Conservative, Palliser, SK]

So either male or female can receive the $75,000.

[Andrew Saranchuk]

That's correct. I'm sorry if I implied otherwise.

[Roy Gray]

To be clear, that includes common-law spouses. There's another option for spouses now. Since the enactment of an act with a very long name, the Family Homes on Reserves and Matrimonial Interests or Rights Act, a spouse may have an option when the other spouse dies in terms of whether to take the $75,000 share under the Indian Act or to take half of the matrimonial assets under the new legislation.

[Ray Boughen, Conservative, Palliser, SK]

Thanks, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

Ms. Bennett, do you have any follow-up questions?

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

I do not.

[The Chair, Conservative, Chris Warkentin]

All right. Good.

I think Mr. Clarke maybe has one final question, and then we'll be done.

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

Thanks, Mr. Chair.

I have two small ones.

One question is about provincial jurisdiction. Is it possible to use the Queen's Bench to resolve any of the issues coming forward on contested wills and estates instead of using provincial jurisdiction?

[Roy Gray]

Under the current system, that could come into play if the minister made the decision to transfer the jurisdiction to the provincial system. Then I guess it would be the provincial superior court. I'm not certain.

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

It would be the Queen's Bench for any jurisdiction.

Now just to segue, we're looking at the Indian Act and at how wills and estates affect first nations in their daily lives. As a committee, we sit here and look at ways to help first nations on a daily basis. We can look at how South Africa back in the 1920s used the Indian Act as a template for apartheid. In this current day and age, in 2014, we're still under the Indian Act. However, back in the 1990s, South Africa got rid of apartheid and basically almost got rid of the entire Indian Act.

Maybe Carolyn can add some input here too. I think it might be an excellent idea to look at how the Indian Act may have been dismantled in South Africa. In the sense that it's on both sides of the world, and that the Indian Act and apartheid were so similar, what would the consequences be if wills and estates were dismantled in the same manner that apartheid was? That could be an option to look at it. Maybe there could be a further study.

Do you have any input or are you aware of any similarities between wills and estates through the South African apartheid process and wills and estates under the Indian Act currently?

[Andrew Saranchuk]

I'm not aware of that in terms of the South African regime. I would just add, with respect to the main thrust of your question, that it is open to Parliament to abolish or repeal these parts of the Indian Act.

I think what we tried to demonstrate in our answers and in our presentation is that you just have to be aware of certain factors when you're doing that. If that's the policy thrust, that's fine, but you have to be aware that the lands issue complicates things. As well, you need to be aware of the need to have a clear alternate system so that the courts and first nations individuals and communities are clear about what applies.

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

I think it would be an excellent idea to see how South Africa—

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Clarke.

Unfortunately, we're going to have to end there. We will have bells ringing in 15 minutes, and we do need some time for committee business.

We want to thank our witnesses today. Thank you for spending your afternoon with us. We appreciate your expertise and your willingness to share it with our committee.

Colleagues, we'll just suspend for a few minutes to go in camera and get through a couple of things on committee business.

[Proceedings continue in camera]