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.
4:15 p.m.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
Again, I think the committee was pretty clear that the status quo is not okay, but what was attempted would have a whole bunch of unintended consequences. If you were writing the report for the committee, what would you be suggesting should be in our recommendations?
4:20 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
I think you can get input from your own staff on where they see gaps in their process, because they're going to have complaints coming at them on a number of issues. Externally I think you need to talk with first nations, however you devise that process, and figure out where they think that improvement can be made. If they want to do this from a regional approach, then have tribal councils deal with this. That is something they might want to consider. They might want to simply use a mediator of some sort, or an arbitration process, or deal with their own process if they have an existing indigenous legal order to deal with property that is passed on through their families or members of their first nation.
What that is saying is you're going to need to get some input externally on what should happen. It's tough because Canada is a big country and there are 630-odd first nations that might want to have some input.
I remember, too, that there was a comment from the think tank discussion group. I think it was the regional manager of estates for B.C. who mentioned that. I wasn't sure how to take her comment, but she said there was not a lot of uptake on first nations in B.C. for wanting to take on this jurisdiction. She said in treaties that have been negotiated in self-government agreements, when it comes to wills and estates, they'll defer to the existing sections of the Indian Act. It would be interesting to talk with those first nations that deal with that to ask why, and if they wanted to deal with it, what would they want to do? If you're talking with nations that are close to coming to an agreement or a treaty, broach the subject with them to find out what they want to do with this area. Ask them if you should draft something specifically for them. Then they can let you know if it works for them.
I'm sorry I don't have an answer in terms of sections and whatnot to repeat because that's not going to happen.
4:20 p.m.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
No, but it's just a matter that until the Indian Act is gone there needs to be some improvement. I think that's what the committee is being asked to have a look at. What are you suggesting we say?
4:20 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
My comment is you are going to need to engage in some type of a consultation regime just to get an idea from first nations people about what they think is wrong with it externally.
4:20 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
Yes, absolutely.
4:20 p.m.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
It shouldn't really be a parliamentary process. It should be Canada consulting with first nations, right?
4:20 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
Yes, and when you do that you're going to get some idea of the interest and uptake on whether or not first nations actually want to do anything about it, and if there's enough resources for them to do it, because there is a lot on their plates every day.
4:20 p.m.
Partner, Devlin Gailus Barristers and Solicitors
I don't think there is a silver bullet. As Brock mentioned, in the B.C. Treaty Commission process, the first nations that have negotiated treaties are just relying on provincial laws, so they don't seem that interested in it at this point. Those negotiations will go on and on for quite some time, as I'm sure this committee is aware.
I agree with Brock that there needs to be a broad consultation, and certainly, if there's going to be a move to bring in provincial law for instance, you need to sit down with the provincial people as well, the public guardians and trustees, which was in my opening remarks. But in the interim, you are right in that there is room for improvement. I think the approach is not simply to throw the baby out with the bathwater. There are actually, as Brock mentioned, some good things in the act, some efficiencies that come from things like holograph wills. The minister can actually move quite quickly to approve wills and appoint executors and administrators, way quicker than the court process. I've seen in my experience that you don't have to wait even weeks for an approval of a will and get an executor or executrix appointed to get on with managing the estate.
There are actually some good things there. The fact is that, as Brock mentioned, you are going to have to get an approval from somebody. It's either going to be a judge in the court or a person sitting in the regional office at AANDC signing off on it. I don't think it's a question of autonomy per se.
For this committee, I think you need to move slowly, actually, and consult widely. Perhaps until there is that silver bullet, you need to proceed incrementally to make changes to the act and the regulations until such time as the Government of Canada decides to get out of this business.
4:25 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
I'll just add that I'm not sure whether you've heard directly from first nations people yet and their leadership, but I would suggest that it happen. Doing things for the benefit of first nations people without having first nations people at the table is something of the past that we shouldn't really be repeating.
I heard some numbers, that currently the wills and estates program through AANDC is spending $3.5 million and has something like 44 staff. With those kinds of resources, I can imagine the amount of work that first nations communities can get done. The first nations bureaucracy has been cut drastically in the last few years, and so they're very burdened. I can imagine that these kinds of resources could go a long way towards dealing with wills and estates.
I think the committee could do a full analysis that involves first nations people and is led by first nations people.
4:25 p.m.
Conservative
The Chair Conservative Chris Warkentin
Thank you very much.
We'll go to Mr. Strahl now for the next questions.
4:25 p.m.
Conservative
Mark Strahl Conservative Chilliwack—Fraser Canyon, BC
I'd like to thank you for giving me many more questions today than I had at the start of this.
I guess my fundamental question—and I asked a variant of it to the officials—is whether this change or modernization or some improvement to the wills and estates regime.... Are you hearing a call for this coming from grassroots first nations people or chiefs in council? Or is it something that has been examined and about which it is said to be something we could get out of the Indian Act and that therefore, because we discovered there are two different ways of doing it, there is reason enough to remove it or change it?
Whoever wants to answer this, all or a couple of you, may.
Is this something that first nations communities have said they don't want to...? You said there hasn't been uptake in B.C., but is there a groundswell for this on any level? We have made changes before to the elections act for first nations elections, when a couple of groups said they wanted to change it and we said, “Okay, here's some opt-in legislation”. Is there something similar out there? Are there groups calling for this?
4:25 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
There are two avenues by which I see this coming. One involves the clients we have who have to deal with these matters on reserve. I can't breach solicitor-client confidentiality, obviously, but this is the way I see the issue come in. I try to analyze it with the facts and I go to look at the law, as a typical lawyer would do, and I become frustrated. I look at the antiquated provisions and I say that there's no answer here for me, that I have to look at this and be creative. And lawyers will be creative; that's how you develop the common law around a subject. But it's incredibly frustrating. You're walking on eggshells, because you don't know whether a particular area has been proven or not, or whether it's going to be accepted by the judge, or whether the clients will like the advice you can give them.
That was one avenue. The other avenue on this.... I had no idea about this process until, actually, I heard about Mr. Clarke's private member's bill wanting to change certain portions of the Indian Act by taking out antiquated provisions. I had only printed if off—I think it was a year ago or so—and taken a very quick skim of it and said, “Oh, there's the wills and estates in there.” I remember thinking at the time—it was at about the same time the other matter I was dealing with at work came up—that I didn't think this was going to work, because if you're taking those provisions out, what is left in their place to deal with the possessory interests of the reserve land? That thought was similar to what Christopher Devlin, Mr. Gailus' partner in his law firm, provided in his report when this committee was studying Bill C-428.
4:30 p.m.
Conservative
Mark Strahl Conservative Chilliwack—Fraser Canyon, BC
Thanks.
Mr. Gailus, I believe you said there's room for improvement, and I think Mr. Roe would agree. You've been asked this a few times, but I'm trying to get a better grasp of it. What form do you think that should take? Is legislative change necessary? Is regulatory change sufficient? Is a modern....?
We walked through it all here. There's no quick simple fix, and as Ms. Richer has said, until the consultation process is engaged you probably shouldn't do anything. I think we can all agree on there being room for improvement, but as Carolyn was asking, how do you get there? What is the first step? Are there things that can be done without major legislative change that would be acceptable in order to move forward, or is the recommendation really that we start a national conversation with first nations on this issue?
You're not supposed to ask a question you don't know the answer to, but there it is.
4:30 p.m.
Partner, Devlin Gailus Barristers and Solicitors
Only when you're a lawyer.
It could take many forms. I think there is certainly room for policy improvement at the department now. There are the regulations. It's a lot easier to change the regulations than it is to change the act itself. The regulations certainly could be brought up to date and refined. I think you do need to start at the grassroots. You need to consult widely if you're going to make any of those sorts of changes. I think the first step is maybe, when I went back to it, defining what the problem is and putting forward some potential solutions to it, but in a very broad-brush way, and going out and consulting, and talking to the people who work in the department, talking to first nations, and getting a sense of whether any of this is going to fly.
4:30 p.m.
Conservative
Mark Strahl Conservative Chilliwack—Fraser Canyon, BC
I'm not convinced. We have yet to really define what the problem is. We're going round and round. There are problems that it's not modern, that there are antiquated provisions, that there are gaps. I think that's where we have to wrestle this thing to the ground almost as a committee, and keep coming back to that. Perhaps I'm just not grasping it entirely, or I'm not legally trained to grasp it. Are there papers that we should be consulting that lay these things out: here are the specific problems that someone should address in some way? We're kind of broad-stroking it here and I'm trying to get maybe a little more specific.
4:30 p.m.
Partner, Devlin Gailus Barristers and Solicitors
There's a paper I did back in 2010, which was a presentation to the CBA wills and trusts subsection. I reviewed it again this morning. It's a great paper—
4:30 p.m.
Some hon. members
Oh, oh!
4:30 p.m.
Partner, Devlin Gailus Barristers and Solicitors
—that really sets out, I think even for lay people, the framework that we're in right now. I think that might assist the committee. It's there already.
4:30 p.m.
An hon. member
Fantastic.
4:30 p.m.
Partner, Devlin Gailus Barristers and Solicitors
I could probably come up with a list of the top 10 things that need to be changed if you want me to do that, but it won't be as entertaining as Letterman's.
One thing that comes to mind, for instance, is that when you're dealing with estates, particularly intestacies, it's not necessarily that these estates are being resolved; they're just not being dealt with. Then it becomes a point in time when somebody, the grandchild, comes around and is on the certificate of possession land and says, “I wouldn't mind getting the certificate of possession of this land,” and then goes back and says, “Grandpa passed away and nobody ever dealt with his estate, and Mom and Dad passed away and nobody dealt with their estates.”
Now you have 20 to 30 potential heirs who are going to get this fractional interest in the land, and it's all undivided interest, and so one of the problems you face with these estates is trying to get everyone to agree to transfer the land. Or you have this infighting going on, or if it finally comes to a situation where the land does get transferred and we have 30 people, then they all have to agree if they want to develop that land. So opportunities pass by, because essentially any one of those 30 people has a veto.
One of the things that's missing in the current regime is the ability to actually go to the court and say, “I want an order of partition and sale,” which is something you wouldn't have. You would have offers, so that if you can't come to a conclusion, you can actually deal with the land and get on with it. That's one example of something legislatively that could be changed in updating the acts to allow these deadlocks to be broken.
I have three of these files right now, where I have these fractional interests and essentially it's only one twenty-fifth in this case, but essentially they're holding the other beneficiaries hostage on the distribution.
4:35 p.m.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
I'll try to do a recap here.
First of all, we have complex land issues that don't exist in provincial jurisdictions, which you've rightly pointed out, Mr. Gailus. I've read your paper and of course previous testimony. The land study we previously did identified those complex issues as well. So we have that piece, which we can't disregard.
The second piece we have that we can't disregard is there are different statuses on reserves. There are people who are ordinarily resident on reserve, yet who do not meet the criteria for being status on reserve due to second generation cut-off, or whatever that might look like. People may be subject to a section 50 sale even though they are a community member. There's that piece.
Ms. Richer, you pointed out, quite rightly, that no major changes should be made unless the duty to consult is fulfilled, as has been laid out in any number of decisions. To my understanding, it's in that kind of context that we're dealing with this.
Then I come down to a couple of pieces which I think the committee could still look at.
First of all, are there any first nations who are currently exercising jurisdiction with regard to wills and estates? I don't know that we know of any, but it would be interesting for us to talk to first nations who have decided to exercise that jurisdiction.
Second, I think I heard you say, Mr. Roe, that it would be useful for the committee to hear from the two provinces that have a contract with AANDC and to hear from some public trustees about their perspective.
Then I'm sort of making a leap here. This is my bugaboo, but I'm also thinking that because the department did an internal evaluation on some problems with internal processes, it would be useful to get a report out from the department about what they're doing to fix their own problems internally. Next, they could tighten up policy and process without any kind of legislative change. If you can't find forms, if people aren't clear, whatever that looks like, there should be a clear process that is applicable across Canada with regard to how wills and estates are handled by the department.
On the dispute resolution piece, the Canadian Human Rights Commission has a very good framework for communities to develop dispute resolution. I'm understanding Ms. Richer to say that it doesn't appear to be a problem, but there are mechanisms out there for dispute resolution processes that could be adopted.
Finally, without getting into major legislative change, there could be an examination of the regulatory process to see if those could be cleaned up and modernized in the context of what some provincial governments have looked at in terms of modernization.
Have I got it? Have I kind of summarized some of the key points?
Mr. Roe did a very good job outlining a whole list of things that I haven't even gone there on yet, but I'm just thinking of terms of where this committee goes with this next. There are some things that we could hear from future witnesses, but then there are some things that we could make recommendations on in this regard without wholesale change to the current act, given the complexity of this, to allow a fulsome process to go forward. In the meantime we could clean up some things that would make people's lives easier while that fulsome process went forward.
Do you have any comments on that? Are there no big, glaring errors?
4:35 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
Sorry, I'm just reviewing my notes.