Law Times

PAGE 8 OCTOBER 23, 2017 • LAW TIMES www.lawtimesnews.com Indian Act 'paternalistic' on will-making BY DALE SMITH For Law Times W hile most Canadi- ans are free to dis- pose of property in a will, that right is circumscribed for those indig- enous Canadians subject to the Indian Act who live on reserves. Lawyers say the impact of this can be problematic, but in some cases, it may actually prove more beneficial than being subject to a provincial regime. "The minister has very wide discretion about what happens when an Indian dies," says Jacob Kaufman, a lawyer with de Vries Litigation LLP in Toronto, using the terminology within the act. "They can change their estate trustees, they have jurisdiction about carrying out the terms of the will, about administering the property if an Indian dies without a will." The matter falls under the ju- risdiction of the Indigenous and Northern Affairs Canada estates program. "INAC encourages family members to take the role of set- tling the estates of family and friends who have passed away," says department spokeswom- an Stephanie Palma. "In cases where no one is willing or able to administer the estate, INAC will settle the estate by appointing a departmental employee. When required, INAC may refer any estate issue to the provincial or territorial court for clarification." Kaufman says that for most other Canadians, there are cer- tain formalities that must be observed, while the minister may accept any sort of written document from an Indian as a valid will, which could be seen as paternalistic. The minister must approve any will from a registered Indi- an, and for those who don't live on a reserve or Crown land, he says, the minister still has a veto over the will. "The minister could say that I don't agree with your will, and I'm going to come in and decide whether it's valid of not," says Kaufman. "That doesn't happen with you or I." While Kaufman says that the minister may have reasons for invalidation such as it being con- trary to public policy or the will being capricious, other Canadi- ans are not subject to these same strictures. It also means that the same safeguards available to other Canadians through the courts are generally not avail- able to registered Indians, who instead must have their affairs turned over to a bureaucrat. Kaufman notes that while these provisions were upheld by the Supreme Court of Canada, it was at a time before the Charter of Rights and Freedoms, which makes him suspect that it would not go the same way if argued today. At the same time, the gov- ernment is considering amend- ments by the Senate to Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), in re- sponse to court rulings against the current legislated rules for who is eligible for status. The amendments, if passed, could see the numbers of registered Indians increasing by the thou- sands, which would also make them subject to these testamen- tary provisions of the Act. "People are thinking that this is something that will be help- ful to them, and that will respect their identity, not knowing that now the government has author- ity over your will," says Kaufman. The change of status to the current framework under INAC may end up being a benefit to some people, says Lanise Hayes, partner with Nelligan O'Brien Payne LLP in Ottawa, who heads the firm's Indigenous Law practice group. "The provincial regime to which all Canadians in their respective provinces are subject when it comes to testamentary issues may not work well in a reserve or an Indian setting be- cause of the fact that there are rules at times about who can re- side in a First Nations commu- nity," says Hayes. Hayes adds that under the Indian Act, common-law part- ners are recognized as survivors and beneficiaries where they are not under all provincial re- gimes, such as in Quebec, where a common-law partner has no rights. As well, some traditions wouldn't be protected under a provincial regime either. Hayes also says the fact that the minis- ter can accept any document as a will is also predicated on the reality that access to lawyers and notaries are limited to those on remote First Nations. "Whenever I talk about the Indian Act, this is one good ex- ample that I raise that people are not aware of," says NDP MP Romeo Saganash, who was the first Cree lawyer admitted to the Quebec bar. "When I mention it, Canadians are totally shocked. There's a total fundamental overhaul that is required for the Indian Act." Saganash says there needs to be a framework that uses the minimum standards that are part of the United Nations Dec- laration on the Rights of Indig- enous People before any legisla- tive or policy changes are made. "There are many pieces of the Indian Act that are paternalistic and need addressing, and this is one area that does," says Conser- vative critic for indigenous af- fairs, Cathy McLeod. McLeod notes that former Conservative MP Rob Clarke had tried to address this issue with a private member's bill, but it never got traction. "It's one of those areas that does need to be addressed, but how are the communities [to] deal with any voids that get left after?" she asks. McLeod notes that with Bill S-3 and the Supreme Court of Canada decision in Daniels v. Canada (Indian and Northern Affairs) 2016 SCC 12, which af- firmed the government's obliga- tions to non-status Indians and Métis peoples, will take a long time to unravel. LT FOCUS ON Trusts & Estates Law Jacob Kaufman says safe- guards available to other Canadians through the courts are generally not available to people regis- tered under the Indian Act. FOCUS © 2017 Thomson Reuters Canada Limited 00247EU-89704-CE COMPLIMENTARY LEARNING SESSION Small Law Firms & the Business of Success November 2, 2017 | Toronto #SmallLawSuccess | #TRTLAEvents Register now at thomsonreuters.ca/small-law-business-success

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