Evidence of meeting #20 for Indigenous and Northern Affairs in the 41st Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was indian.
A recording is available from Parliament.
Counsel, Operations and Programs Section, Department of Justice
Then the process is there and the court then has those powers that the minister doesn't have to sit, convene court, issue subpoenas, hear witnesses, and adjudicate their credibility.
Director, Indian Moneys, Estates and Treaty Annuities, Department of Indian Affairs and Northern Development
I just want to make the point that the court would apply the Indian Act rules.
Conservative
Kyle Seeback Conservative Brampton West, ON
Of course, that's understood. They would have to. Sorry, I thought that was understood.
I guess in certain circumstances then, you act almost as a mediator in some of the smaller value estates. Would that be a fair comment?
Director, Indian Moneys, Estates and Treaty Annuities, Department of Indian Affairs and Northern Development
I would say so. The regional folks would do that, yes.
Conservative
Kyle Seeback Conservative Brampton West, ON
With respect to appointing a family member to administer, what are the rules on that? I remember way back in law school we talked about degrees of consanguinity, but do you look at that when you're choosing which person should administer the estate?
Counsel, Operations and Programs Section, Department of Justice
Yes, absolutely, that's what we do. We look for the closest family relative, and that's usually what guides us. We do have a policy and we look for somebody who is willing and has an interest in administering the estate.
Conservative
Kyle Seeback Conservative Brampton West, ON
One of the things I noticed that was interesting with respect to an intestacy is that the first $75,000 goes to a surviving spouse. I know that in Ontario, I think if the estate is under $200,000, the first $200,000 goes to the spouse. There's a bit of a difference there. Have you heard anything anecdotal about that affecting children? I don't know the general size of an estate that comes through for members of the first nations. Would most estates end up, from your experience, with the first $75,000 going to the spouse and nothing for the children? Do you detect any problems with that?
Director, Indian Moneys, Estates and Treaty Annuities, Department of Indian Affairs and Northern Development
I'm not aware of any.
Counsel, Operations and Programs Section, Department of Justice
That could be an issue, and there is a provision in section 48 of the Indian Act that the minister has the authority to transfer some of that $75,000 to the children to relieve hardship. That is not an application that I've heard raised; it just doesn't seem to come up.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
I want to turn to section 50 sales just for clarification. You did touch on them. My understanding is that, if there is a certificate of possession or something, and the spouse is either non-status or not a member of that particular band, then the department is required to attempt to sell the land under section 50 and share the proceeds of that sale with the survivors. Do I have that right?
Director, Indian Moneys, Estates and Treaty Annuities, Department of Indian Affairs and Northern Development
That's correct.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
So there's a rule where—I can't imagine having provinces look at this—if it's not sold within six months, the property reverts to the band. Is that correct?
Director, Indian Moneys, Estates and Treaty Annuities, Department of Indian Affairs and Northern Development
That's correct, yes.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Do you know many cases where the land actually reverts to the band, where you're not able to sell it?
Counsel, Operations and Programs Section, Department of Justice
I don't know. I don't have that information here today. We'll have to get back to you.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
It would be interesting to look at how often that happens, because that has implications. For example, the matrimonial real property bill that the House considered looked at division of assets when there's a spouse living, but you could have similar circumstances where the spouse has passed away and there's a division of assets.
The second piece was with regard to one of the things that witnesses raised with respect to the First Nations Land Management Act and the land code. I looked at a paper that was put together by Devlin Gailus. They looked at the Tsawout First Nation on the Saanich Peninsula that does have a land code. They say that the land code must be consulted, but that the majority of estate provisions of the Indian Act, including sections 42 to 48 and subsections 50(1)to 50(3), continue to apply. I had understood that if there was land code developed, it excluded these conditions, but that's not how I'm reading this. Can you clarify this for us?
Director, Indian Moneys, Estates and Treaty Annuities, Department of Indian Affairs and Northern Development
I don't think the First Nations Land Management Act excludes all of the estates provisions of the Indian Act. It only applies to the transfer of land. But I'll look to my colleagues.
Counsel, Operations and Programs Section, Department of Justice
Yes, I can clarify that what is excluded under the First Nations Land Management Act is the role of the minister to approve the transfers. Under section 49, the minister would approve the transfer from the deceased to the living and under the FNLMA, the first nation would take on that role.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Okay, but the rest of the act, as noted, sections 42 to 48, continues to apply.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Okay. With regard to the capacity building, one of the things that was raised in the evaluation was that everybody agrees that capacity development for first nations was identified as the single most effective way to improve program effectiveness and efficiency, but the evaluation revealed that there's a lack of consistency in training across all regions, and low participation. I think the department has put on sessions but there has been very low take-up on that.
Are you doing anything differently as a result of the evaluation?
Director, Indian Moneys, Estates and Treaty Annuities, Department of Indian Affairs and Northern Development
Thank you for the question. I was going to mention this earlier. In response to the evaluation, we have developed an action plan and implementation of that action plan is under way.
NDP
