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.
Conservative
Conservative
Earl Dreeshen Conservative Red Deer, AB
I have a couple of questions.
Jean brought some of this up in talking about section 50. Just for my own awareness of this, it talks about heirs and beneficiaries who are not members of the same band with which reserve lands are associated but are entitled to the proceeds of a sale. Then you spoke about this “if after six months”, so I'd like to know when the meter starts running.
The other thing is when it says “heirs and beneficiaries”, can some of the beneficiaries be people who would not be subject to the act? When you're looking at a will, you can name pretty well anyone, so I'm just curious how that would fit into it, because that's a bit of a murky area.
If there's anything else that you can tell me about section 50 as well, I'd appreciate it so I can get a full feel for what is taking place there.
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
I'll let my colleagues answer.
My understanding with respect to your second question, though, is that heirs and beneficiaries don't have to be people who are necessarily...so they could be broader people.
Director, Indian Moneys, Estates and Treaty Annuities, Department of Indian Affairs and Northern Development
That's correct.
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
In terms of the clock running, Mr. Vincent, could you...?
Counsel, Operations and Programs Section, Department of Justice
The clock starts running when the minister advertises the sale. That could be six months after the death; it could be six years after the death and the estate still remains not administered.
Conservative
Earl Dreeshen Conservative Red Deer, AB
Is there anything else that a person should know on section 50 that might seem a little odd? I was thinking about it from one perspective, and I've been hearing a few different ideas here, so I'm wondering if there's anything else that I should be aware of about how section 50 is interpreted.
Counsel, Operations and Programs Section, Department of Justice
I think it's interesting to know that section 50 applies to Indians who weren't normally resident on reserve at the time of their death. Half of the Indians in this country live off reserve, so section 50 applies to only half of the estates.
For the Indians who are living off reserve and die off reserve at the time of their death, section 50 never becomes a problem for the department to administer the will. It becomes a problem for the estate representative, the executor or the administrator, who then can follow any process that he chooses to liquidate the asset and then provide a cash benefit for the heirs and beneficiaries who are not band members.
Conservative
Earl Dreeshen Conservative Red Deer, AB
Then, by definition, what about when the reverse happens? Someone has spent a great deal of time not on the reserve, but then they come back to the reserve, and they have assets that they have accumulated.
Traditionally, if I were an executor of an estate, nothing is gone until you've paid the taxes and everything else that's associated with it, so how would that scenario work if a person was outside of the system? You know, they went and worked, and did all these other things, accumulated the assets that they have, and then came back and spent the last 20 years of their life on the reserve so that technically they are ordinarily resident on reserve. How does that work?
Counsel, Operations and Programs Section, Department of Justice
In that case section 50 could apply to their estate if their will provided for a number of beneficiaries who would be non-band members.
For example, you might say, “I give my house to my grandchildren in equal shares”, and some of the grandchildren are band members and some of them are members of a different band. In that case, there would have to be a sale to allow for the grandchildren to inherit the money rather than to inherit the land, unless the grandchildren decided among themselves that they could divide it another way to their satisfaction.
Conservative
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
I'm sure there are other complexities that you can imagine, but I think Mr. Vincent has hit one of the main ones here.
NDP
Djaouida Sellah NDP Saint-Bruno—Saint-Hubert, QC
Thank you, Mr. Chair.
I would first like to let the witnesses know that I am not a permanent member of this committee. I am replacing a colleague.
I am pretty curious about what I read in your presentation, Mr. Saranchuk. When a will is deemed to be valid, the family has the right to challenge it. The minister can declare a will, or part of a will, void. You listed the reasons the minister could get involved. Afterwards, you said that, in case of a problem, Aboriginal Affairs and Northern Development Canada is not set up to hear and resolve disputes and that it would transfer jurisdiction of such disputes to a provincial court. Did I understand that correctly?
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
If you'll excuse me, I'll answer in English.
I suppose what I would say is—
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
Oh, sorry.
NDP
Djaouida Sellah NDP Saint-Bruno—Saint-Hubert, QC
I was just summarizing the procedure.
There could be a dispute neither the minister nor the provincial court was able to resolve. We could be talking about something like land transfers. Would that land go to the band or to the government? Of course, I am talking about land that belongs to someone living on reserve.
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
If that's okay with you, I will answer in English.
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
Like most questions today, it's a complex one.
I'll just go back and try to explain that the minister does have to decide whether or not he is going to approve the will, or whether or not there were difficulties with the will that would lead him not to approve it.
Once it's approved, family members could challenge the will, for the reasons of its duress, or they would say that the person who wrote the will didn't have the capacity and weren't in a position to understand.
At that point, if there were challenges, and I'm looking at my colleagues to confirm this, it could be referred to the courts. As was mentioned earlier, somebody would bring an application. The department would say that it is not in a position to judge between two family members who are disputing it. It would invoke that part or that section of the Indian Act that allows it to refer it to a court, at which point the court would be in a better position to hear from witnesses and make a determination about those issues.
Your question was what happens at that point with respect to the land portion of the estate. I guess I'm looking to Mr. Vincent to finish off my comments. I'm proud of myself for just having followed the question to this point.
Counsel, Operations and Programs Section, Department of Justice
If the matter is referred to the court, the court will make an order with regard to the validity of the will and whether any portion should be struck out as invalid. From that point, the court could also determine the rest of the issues of the will, such as who is going to receive the land. After the court has made its order, the minister gets to approve the transfer.
NDP
Djaouida Sellah NDP Saint-Bruno—Saint-Hubert, QC
So the court would issue an order, which would be approved by the minister. Is that what you're saying?
