Indigenous and Northern Affairs Committee on April 8th, 2014

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

But is any other Canadian governed by the Indian Act besides first nations?

[Andrew Saranchuk]

No. What I would say is that the particularities that we try to explain in terms of the disposition of reserve lands, I think, complicate things certainly with respect to disposition. So, what you're getting at, if I understand correctly, is there are certain limitations in terms of how property can be bequeathed, because if it's tried to be bequeathed to somebody who is not a band member and it's reserve land, then that's not possible under the terms of the Indian Act. So there are certain limitations that non-first nations individuals would have.

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

In the department, how many individuals work on wills and estates?

[Andrew Saranchuk]

There are about the equivalent right now of 44 full-time equivalents spread out across the country.

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

How many new cases are brought up each year, on average? How many contested?

[Roy Gray]

There are, on average, about 3,600 open files each year. Some of those are new; some of those are old. As you can imagine, some estates may involve more complex issues which take longer to resolve, but on average it's about 3,600 open.

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

With 44 individuals working in aboriginal affairs, monitoring the wills that are uncontested and with the cost, how much money is expended on the caseloads per year, including the individuals working in the department?

[Roy Gray]

This isn't identified, for instance, in the core budgets of regional offices, but based on an analysis we've done, we think the cost runs at about $3.5 million annually. That includes, for instance, grants and contributions moneys, moneys that flow to communities for various capacity-building initiatives, or wills workshops. It also includes operations, maintenance, and salary dollars.

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

To provide some clarification here, I know Jonathan had mentioned during questions when my private member's bill was brought forward that Quebec law—and forgive me if I'm wrong—would supersede wills and estates.

Am I correct on that, Jonathan? No? Would it supersede any types of wills that are being contested in Quebec on first nations? I think it was one of the questions that was brought up.

[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.

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

My understanding was that Quebec law would supersede first nations wills and estates. Does it?

[Martin Reiher]

No, the same situation would occur in Quebec as anywhere else in Canada in terms of the application of rules regarding wills for on-reserve people. To the extent that the Indian Act deals with the subject matter, including the regulations, the provincial law would not apply. To the extent that there are possible gaps, it's possible that certain rules of the provincial legislation would find application currently.

My colleague might have something to add.

[Tom Vincent, Counsel, Operations and Programs Section, Department of Justice]

Certainly, the Indian Act rules would apply to the estates of people who died ordinarily resident on reserve, and Quebec rules would apply to people who died ordinarily resident in the province of Quebec.

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

We've heard testimony and currently are there first nations communities, for instance Cree law, and individuals of first nations administering their own type of law on wills and estates?

[Roy Gray]

If I'm not mistaken, under the Cree-Naskapi (of Quebec) Act, the Cree and Naskapi have the authority to deal with estates or successions, yes. There may be other self-government situations where this is occurring.

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

How is that working out? Are there any problems with that coming back to the department from Cree law?

[Roy Gray]

None that we're aware of, although we wouldn't necessarily know, if they're in a self-government situation.

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

I recall your mentioning the Constitution going back to 1867, both provincial and territorial. I look back at the current system of today's society. Do you think the Indian Act can be phased out in regard to wills and estates? If so, how can the department phase that out and let first nations govern themselves?

[Andrew Saranchuk]

I'll take a crack at it to start and then I'll turn it over to my colleagues.

I think anything is possible. It would be possible to phase out a large degree of the Indian Act. It wouldn't be easy. There would have to be a replacement system that clarified how things were going to apply. We don't think it would ever necessarily be possible to phase out the issue that you and I were just discussing with respect to reserve lands, because it wouldn't be possible for provincial laws to apply in that case, but it would be possible to phase out.

We tried to give a little bit of a sense of this in the opening remarks. It would be possible to think about some of the current functions, whether or not they be administrative or judicial, and look at whether or not those could be turned over to first nations, maybe aggregates of first nations as we said.

It would be possible to think about having provincial laws apply in their entirety, and I wouldn't want to tell people how to proceed, but that would probably require some sort of engagement with the provinces, because there would be practical implications for them. Their systems might not be set up right now or attuned to actually applying on reserve and some of the complexities there.

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

Doesn't provincial law—

[The Chair, Conservative, Chris Warkentin]

Mr. Clarke, your time is up.

If you have a follow-up question, I'll allow that, but we are out of time.

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

Just as a follow-up question to that, I'm wondering about provincial law. When a first nations member on reserve has an estate contested and he lives on the reserve and has provincial assets, how is that situation addressed by the department?

[Andrew Saranchuk]

You are talking about private assets that are not reserve land.

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

That's right.

[Andrew Saranchuk]

Those would be administered, depending on whether he was testate or intestate, by the executor or the administrator.

Am I missing something, Tom?