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
Jean Crowder NDP Nanaimo—Cowichan, BC
I have more questions than five minutes will allow for.
I think you're well aware that the reason this is before the committee is the stripping out of the sections of the Indian Act without specifically, as you mentioned in your notes.... There were a couple of points that you did raise in your speech, but there were a number of other things you didn't raise that are different. I know that you only had a limited amount of time, but I wanted to touch on a couple of them.
One was that some provinces don't recognize custom adoption. This is a challenge I think for the department as well as perhaps provincial governments, but there are some custom codes in terms of who inherits what, based on some first nations practices.
For example, I'm aware that for some first nations there are certain things, such as ceremonial pieces, that perhaps go to specific family members and may be outside of what would happen if somebody died intestate. I also want to point out, is it roughly only 8% of people who have a will?
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
That's correct.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Ninety-two per cent of people die intestate, so the rules the department outlines may not actually respect custom and tradition within a first nation. I don't know how the department deals with that.
There's another thing that I wouldn't mind you touching on. The numbers have been raised...in terms of whether these numbers are credible.... I understand in the evaluation some concern was raised with regard to monitoring and the numbers themselves. It says that the lack of adequate performance data made it impossible to determine success on a number of things. I wonder if the department can comment on what they're doing in terms of the data capture so that it more accurately reflects what's going on.
I guess the final thing on these numbers is, are these all estates? I assume the number that is here, the 2,574, is for everybody who died, whether they had a will or not. Is that correct? Do you want to start with that one?
Director, Indian Moneys, Estates and Treaty Annuities, Department of Indian Affairs and Northern Development
I don't know if I understand the question.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
The total number of new estate files opened in 2010 is 2,574. Is that everybody who died? Does it include people with wills and without wills?
Director, Indian Moneys, Estates and Treaty Annuities, Department of Indian Affairs and Northern Development
Well, this would be the number of estates files opened. There could have been people who died where there wasn't a file open—
NDP
Director, Indian Moneys, Estates and Treaty Annuities, Department of Indian Affairs and Northern Development
Yes, it does.
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
And it's the number that Mr. Gray is trying to explain is the open basket.... It's the in basket. There are always.... I'm not sure it represents the exact number of deaths that year, but it represents an approximate number, because there are people coming out of there and people going in there, wills going in there and wills going out of there....
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
In fact, part of the evaluation identified that sometimes the department is not aware that somebody has passed away.
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
That's one of the big things we didn't mention. That's really one of the huge problems here. First nations individuals might not tell us about a death, at which point there's an issue for us if it's not brought to our attention. That's one of the reasons we're trying to do greater outreach in this area: to make people aware of the need for that. But it is a lacuna, if you will.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
But with regard to other issues that are unique to the Indian Act with regard to custom adoptions and the passing on of ceremonial items.... You did mention the issues about lands, but it's far more complicated than that, as you know. There are allotment lands, there are certificates of possession, and there are certificates of occupation. So it's even more complicated, and to expect a provincial jurisdiction to take this on....
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
I don't think they could take on the lands part, and that's the point, although they potentially could take on the other aspects. I'll defer to my colleagues on this, but I don't think, without some sort of clear legislation, it would be possible for them to take that on. It certainly wouldn't be possible in the absence of clear legislation.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
In effect, then, if we were going to make a change, we would still have part of wills and estates operating under the Indian Act because of the nature of first nations lands, and another part could operate under provincial jurisdiction with agreement from the provinces.
You've talked about consulting with provinces, but I'm assuming that you're also talking about consulting with first nations as well.
Assistant Deputy Minister, Resolution and Individual Affairs Sector, Department of Indian Affairs and Northern Development
Yes, obviously, and I think that's the point I was trying to make in terms of the last point about understanding what level of services are currently provided. Any transition to a new system might see those lost, so that would of course require engagement with first nations communities and also with individuals, I would assume. This is an area that's a little bit different, because it's very much focused towards individuals, partially, and also towards communities, as opposed to certain other areas of the Indian Act that may be a little more community focused.
I'm conscious, though, that we didn't answer your question, Ms. Crowder, about custom codes. I don't know who would be best placed to answer that.
Counsel, Operations and Programs Section, Department of Justice
I can tell you that with regard to ceremonial items, I've never encountered a dispute regarding those sorts of things in an estate, and I've been advising for 12 years for the department. My assumption has been that those precious ceremonial items actually devolved by the custom of the first nation and that they've been undisputed and never brought to the attention of the department for resolution.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
It may not have been brought to the attention of the department, but there was a fairly high-profile case in British Columbia where some ceremonial masks were sold off by a family member. There were some efforts made to recover it, but there was some allegation that the family members who sold it off did not have the rights to those ceremonial masks. So it may not have come to the department's attention, but I think it speaks to the complexity of these matters and where provincial jurisdiction simply would not have the background or the knowledge to deal with some of these complex matters.
I went through the testimony that was before committee on Bill C-428, where of course any number of issues were raised. Certainly one of them was that in other pieces of legislation where it's been suggested that provinces could step in, some serious concerns have been raised about the lack of capacity of the provincial jurisdiction to deal with some of these very unique situations.
Director, Indian Moneys, Estates and Treaty Annuities, Department of Indian Affairs and Northern Development
If I may say something, too, the complexity would also manifest itself in the context of individuals trying to administer estates. That's something we've been giving some thought to. I'm sure people who have personal experience would attest that it's difficult enough to work your way through the administration of an estate. It's hard to imagine having to do it within two legal systems or two jurisdictions. That's another aspect of the complexity.
Conservative
Kyle Seeback Conservative Brampton West, ON
Great.
I think I already have this answer from looking over your notes again, but I want to go back to when this is transferred to the court. I think I asked if you would give me numbers on that. I did ask that last time? Good. Okay.
Will any dispute that arises with respect to an estate result in the department saying, “We can't solve this, you have to go to court”? If so, what's the process that the parties to the dispute have to follow? Do they then go through the regular process with respect to a disputed estate? For instance, here in Ontario they have to file court materials, court documents, and have it adjudicated on by a judge, either in a summary fashion or in a longer way with a trial.
Counsel, Operations and Programs Section, Department of Justice
I can tell you that not every dispute ends up in court. In fact, very few of them do. Quite often the department is able to administer some decision-making authority and control over these estates and they don't end up in court.
It's largely the high-value estates where there are assets that are really worth the expense and you have two sides that are willing to put money into legal fees and take it to court. The process is that one side or the other sends a letter to the regional office, asks for a transfer of the minister's jurisdiction to the provincial court, and from there, once they receive that transfer of jurisdiction from the minister, which can typically take a few months to obtain, they have to commence their own court action in their own court, whether it be the Saskatchewan Court of Queen's Bench or the Ontario Superior Court—
Conservative
Kyle Seeback Conservative Brampton West, ON
Yes, hire their own lawyers, pay their own lawyers, all those kinds of things.
