That's okay.
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.
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.
4:40 p.m.
Partner, Devlin Gailus Barristers and Solicitors
No, I think you put it very well.
4:40 p.m.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Okay. That's all I had to say, unless you have a comment, Mr. Roe, after looking at your notes.
4:40 p.m.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
As you can tell, we're struggling with this matter, because it is complicated. We haven't had people pounding down our doors saying that we have to fix this. If we're going to expend time and energy and effort, let's make sure it's meaningful in terms of the change and that it doesn't create more difficulties for first nations with regard to additional costs, additional complexities, and all those kinds of things. I think we have to keep that in mind as well.
Thank you for your time.
4:40 p.m.
Conservative
4:40 p.m.
Conservative
Earl Dreeshen Conservative Red Deer, AB
Mr. Gailus, you mentioned something earlier on in your testimony about some of the complex files you're looking at. Specifically they were leases on first nation land, or at least that was one of the items.
Since we'll have to take a look at all aspects of this, I'm just wondering if you could run us through what you think are some of the issues associated with the leases that might be there, just so that I can get an idea of what it was you were speaking about at the time.
4:40 p.m.
Partner, Devlin Gailus Barristers and Solicitors
In his presentation, Mr. Roe referred to buckshee leases. Certainly, in British Columbia, this is an issue.
This is a situation where a first nations entrepreneur, we'll say, decides to invite a developer or a number of people to come on to his property and build a mobile home park. Usually what happens is that it's a trailer park. They don't bother seeking the approval of the department for that, so they end up—they call it buckshee—basically not having any legal lease in place.
Oftentimes the individual passes away, which leads to all kinds of potential problems, given that the people who are living there—and usually these are people who are on a fixed income—don't have any legal tenure to be there. Often you're dealing with those sorts of issues, in terms of trying to figure out how to deal with the estate and whether that's actually an estate asset that you can transfer over. It's not a legal interest. It's not in the Indian lands registry system anywhere. You can't find it. It could be a one-page contract that the deceased signed off with a developer, who has now gone out and sold all of these lots. These people have fixed trailers there; they're not movable anymore.
That's an issue that I see quite a bit, in terms of how the lawyer manages those issues and tries to regularize that situation.
The advice I'm giving my clients in terms of the estate is that we need to regularize this. We need to get a formal lease agreement with the department or with the first nation. A lot of these first nations now have their own land codes in place.
4:40 p.m.
Conservative
Earl Dreeshen Conservative Red Deer, AB
Even from the position of the land codes and things of that nature, and the way in which first nations are managing their affairs, is there perhaps a way that they can have bylaws and so on that would give them some idea of how to administer wills and estates on the reserves?
I'm taking this from a little different position. Is there a structure available so that the first nations could say that this is how they are going to manage this, through some bylaw or whatever?
4:45 p.m.
Partner, Devlin Gailus Barristers and Solicitors
In theory, the two do intersect often, particularly for urban or suburban first nations where they do have development on the reserve. It's been a while since I've looked at the First Nations Land Management Act or the land codes, but there might be a possibility for them to put in certain regulations to say this is how they're going to address issues when estate matters arise.
I don't think you could go so far that they could develop their own code under the current regime.
4:45 p.m.
Conservative
Earl Dreeshen Conservative Red Deer, AB
There is another question I want to ask.
Mr. Roe, I believe you mentioned the concept of the $75,000 for the spouse and splitting it up with the rest of the beneficiaries after that, and how the changes were different in various provinces. Is that based on the value of the land or the assets? What are they looking at to make that determination? Obviously, even within a province, it's going to be different valuations that you would anticipate.
How did that come about, and is it related to land value, or is it a decision that's been made in those various jurisdictions?
4:45 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
I'm sorry, I don't know how that number came about for Ontario, B.C., or Alberta—B.C., $300,000; Alberta, $150,000; or Ontario, $200,000. I wish I did know, and even then, under the Indian Act, how they came about with a $75,000 number.
When it plays out in the community when you're talking about that, if you're the spouse survivor and your partner passes away, I don't want to say they're thinking selfishly, but let's say they have an acrimonious relationship with their children. They want to argue that the estate falls below that threshold because they want to keep that $75,000 for themselves. If anything goes above that and if they have one child, they're going to have to share. The first $75,000 goes to the spouse and then whatever balance is shared between them, and then on and on.
When you start playing with that threshold level, you start adjusting the amount that the spouse is entitled to. I don't know how you can value a reserve interest that would be creeping up into the $150,000 to $200,000 to $300,000 range for first nations that are remote. For first nations that are located in an urban context, you can start to maybe see that threshold come into play.
That's where I see that.
4:45 p.m.
Conservative
Earl Dreeshen Conservative Red Deer, AB
With that threshold, if the first $75,000 goes to the spouse and you had, say, three kids, is the rest split among the four of them? Let's say it was a $500,000 estate. Of that, $200,000 would go to the spouse. Then you'd have another $300,000. Is that split evenly among three children and the spouse, or is that all the spouse gets? How does that work?
4:45 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
There's the first cut, which is the $75,000 or whatever the threshold amount is. That goes to the spouse. Then afterwards, it's simply a formula in the Indian Act or the provincial regimes, whichever one you go on. They're all kind of different. My understanding is that it goes spouse, then spouse plus one child, but it's spouse before child.
4:45 p.m.
Conservative
4:45 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
If there are no children, it goes to the parents. If there are no parents, then it goes to the brothers and sisters. That's typically how it goes.
4:45 p.m.
Conservative
4:45 p.m.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
It's just a segue with regard to that.
Hypothetically speaking, if my private member's bill, Bill C-428, does pass through the Senate, it will give first nations the right to form their own bylaws. That's a very key component of my bill. It's about self-governance. I think that's one component where first nations can use it.
As a follow-up with regard to wills and estates, would that give first nations the right or the option to put in their own bylaws about wills and estates, to be administered by their own communities, without them violating the current structure or constitution?
Is that a solution?
4:45 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
In my head, the trigger that goes off right away is that under the act as it is, the minister has to approve the will. I don't know if you're thinking of taking the discretion of the minister to do that out and then placing it in a bylaw power for chief and council to make a decision on. Then subsequently for administering the estate, it could be the same thing. The department wouldn't do it, but the chief and council or their administration would. Is that what you're getting at?
4:50 p.m.
Conservative
Rob Clarke Conservative Desnethé—Missinippi—Churchill River, SK
What I'm getting at is that I want to see the minister removed from the whole process outright and the power given back to the first nations. Would having that first nations community incorporate the wills and estates legislation into bylaws work as a possible solution?
4:50 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
It's complex, I know. I understand where you're going with that. I as well want the first nations to be able to deal with this on their own.
When you have a small reserve with small membership.... You're from Muskeg, right? There are thousands of first nations out there. I'm from Bigstone. It's the same thing. There are thousands. The administration is big, but there are still large family groups involved. I get sort of concerned with procedural fairness when you have a system set up on reserve administered by the people on reserve for their thing. I want to make sure everybody has a fair process in dealing with their family's estate. You want to be able to make sure that integrity isn't tainted. If you have, on some kind of a regional level, something that everybody kind of is in agreement with, maybe that's something that can be considered.
Giving bylaw power specifically to each nation without talking with the nations, I feel, is making things a little bit too discrete in terms of decision-making.
4:50 p.m.
Member, Board of Directors, Indigenous Bar Association in Canada
Can I jump in?
I think you have to have a legislative source for that. You couldn't just establish a bylaw without knowing where that source of power came from, and it would come from sections 42 to 50 of the Indian Act. If you removed sections 42 to 50 and said we're just going to deal with these things through bylaws, then you'd also have a problem, because the province couldn't deal with them. There would be this legislative vacuum. You need to have a legislative source to ground that bylaw.
4:50 p.m.
Conservative
The Chair Conservative Chris Warkentin
I think there are many questions. Clearly you have provided us with a lot of questions as to why those questions exist, so we appreciate your testimony today.
Committee, we will suspend for a few minutes, but before we do that, we want to thank Ms. Richer, Mr. Roe, and Mr. Gailus for being here today.
We know that you're very busy and that you've given your time today. Thank you so much.
We'll now suspend.
[Proceedings continue in camera]