Evidence of meeting #21 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 estate.
A recording is available from Parliament.
4:05 p.m.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Great, thanks. I will have a follow-up question in the next round.
4:05 p.m.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
Thank you to the witnesses for coming in today to talk about wills and estates and also about the Indian Act.
Just to spin off what Ms. Crowder was saying, what would be your recommendations to fix wills and estates? I have one good idea: scrap the entire Indian Act and draft all new legislation. We know that probably won't happen in our lifetime because we see the Indian Act as building an empire in itself through Aboriginal Affairs.
One of the interesting parts of your testimony here was you talked about policy, and in the Indian Act itself, regarding wills and estates. Now, what you are saying is that the wills and estates section of the Indian Act basically supersedes a treaty signed way back in the early years of Confederation.
I would like some clarification on the policy aspect. You say that with wills and estates, the policy is basically a guideline. Is there nothing concrete in that? Is the department basically following policy and not regulations?
My question is for whoever can answer it.
4:10 p.m.
Partner, Devlin Gailus Barristers and Solicitors
No, the fact is, though, there are seven sections dealing with estates and then you have the regulations which are kind of all over the place. When you read them, there doesn't seem to be a really comprehensive code, so you do fall back on policy. Policy implies discretion is what I always say.
4:10 p.m.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
It's like common sense. We're seeing some first nation communities...I'm not sure if you're aware about Cree law where that very issue for wills and estates is being addressed. Are you familiar with that?
4:10 p.m.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
When we're also talking about the administrative gaps under the Trustee Act that you were mentioning, one thing that really caught my attention was that contracts were being offered to the federal government to administer the wills and estates for individuals. Is that correct?
4:10 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
That was a comment that I made. I was actually just referring to the previous evidence from Mr. Gray or Mr. Saranchuk on April 8. What they were saying was that AANDC has a contract with two provincial governments to administer this section of the Indian Act. I didn't even know that and I didn't even know what provinces they were because they didn't disclose that. I thought it would be interesting to hear what their perspective was and the first nations that are under that.
4:10 p.m.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
Sitting here providing this testimony and coming from first nations background, do you think there are two different laws that govern Canadians on wills and estates? Is it a double standard?
4:10 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
I'm sorry, I don't understand.
4:10 p.m.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
Do you feel you have the same rights as every other Canadian, or is your life dictated by the Indian Act?
4:10 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
If it's not dictated by the Indian Act, by the minister, then it's dictated under provincial law by another minister under that act, so if we're not talking about the Indian Act and the minister of Indian affairs, then we're talking about the responsible minister in Alberta or B.C. for the wills and estates act, in my mind. I think there's more of a discretionary component, though, to the Indian Act than there certainly is to the wills and estates act in the province. The province I think has a more current will and estates act than what the Indian Act provides.
4:10 p.m.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
Realistically, the first nations are governed by two acts or two pieces of legislation—provincial and federal jurisdictions, where most Canadians are not.
4:10 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
Depending if you're on crown land or not, essentially....
4:10 p.m.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
You mentioned the length of time for wills to be administered. What is an average time frame for non-aboriginal, and the average for an aboriginal or first nations?
4:10 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
Do you mean to have it approved and then probated and then...?
4:10 p.m.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
Yes, from the onset of an estate being administered until completion. What is the time frame?
4:10 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
The last firm that I worked with, I was working on a matter with a contentious estate with a significant dollar value and it was for somebody that lived off reserve. That never got resolved during my time at that firm of two and a half years, and then when I came to the new firm, the same thing happened. I was put on a file which dealt with just one aspect of an estate matter, not the whole probate issue and whatnot. That took two years. That was a very litigious aspect. In terms of just a regular application under that act, I couldn't tell you because I've never actually dealt with one.
The same goes for first nations on reserve. The few matters that I've had to do research on, as far as I'm concerned, those are still open matters and that's about a year and a half already. That's just on one issue with respect to the estate administration. Those are contentious matters. They're being litigated, so necessarily, that's going to slow things down. As for just regular cases, I have no idea.
4:15 p.m.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
Through the litigation process, are you finding any hurdles you have to jump through, through the department, or get approval through the department bureaucracy?
4:15 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
In Alberta I was able to call whoever was appointed to deal with the matter relatively quickly and talk with them. I didn't think the conversation was satisfactory in my humble opinion. I was able to have a discussion on what they thought about the issue. I thought that was a little bit more frank, to be honest, than going through legal counsel on the other side and trying to figure out what they think their client says and getting back to instructions. It was a unique aspect.
I can't really say in terms of a regular file what that would look like. Sorry.
4:15 p.m.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
What I've heard from individuals here in committee is that there doesn't seem to be a problem, and just maintain the status quo. I don't think that's the right approach to effect change.
We talked about your four components. One of them was the status quo. We know the status quo doesn't work, and first nations are progressing further. Some of the areas or communities in first nations territories, they're doing self-government now through treaty.
Do you feel that might be an approach to be looked at for wills and estates? What are your recommendations to effectively change the Indian Act for wills and estates? What would be an effective means to look at this and make a change, a positive change?
4:15 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
We don't know what first nations want. I can only give you what we think and that's why we're here.
The provisions that deal with wills and estates are old and outdated. I think that's what you're getting at.
The problem is they're not really current. Like other jurisdictions, they have looked at their wills and estates acts, intestate succession acts, and modernized them, if you will. They've dealt with all sorts of new issues that come up, like dealing with common-law spouses, same-sex marriages, whatever.
I think you can look at those issues, and try and accommodate those into any changes that you want to make. You might want to look at clarifying the rules on appointment of family members as administrators. I don't want to say make it look like a provincial process, but I think you can definitely look at some lessons learned across the provinces on what they have been doing and see some areas that they said we need improvement on and do that.
It's also important to actually get some opinion from the public guardians and trustees because they had a certain idea for how things should be handled for people and for things that kind of fell through the cracks jurisdictionally, that fell on their laps that they had to deal with.
4:15 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
May I add something to that response?
4:15 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
I was struck by reading the testimony of the April 8 meeting, wherein it was reported that 92% of people passed away on reserve intestate, so only 8% had wills. Yet, there was a really small number of disputes that came forward to be settled.
It struck me that, obviously, first nations are dealing with this issue because if there is a small number of disputes and there's a small number of wills, they are being handled internally. If you're going to cherry-pick from a process, we should be cherry-picking from those processes that are working in first nations communities and looking at self-community autonomy in determining their own laws. Wills and estates would be one place to start that.
