Wills and estates can be treacherous territory for aboriginals.

• Author: Edmond, John
• Position: Feature: Wills and Estates

The jurisdiction of the Minister of Aboriginal Affairs and Northern Development (until last year, "Indian Affairs") resembles in many ways that of an 11th province. Among the minister's responsibilities for First Nations people on reserves are education, operation of a land registry, review of municipal-type band council by-laws, and other functions unique in the federal realm. Where status Indians living on a reserve are concerned, matters of succession too, ordinarily within provincial jurisdiction over property, fall to the minister under the federal jurisdiction over "Indians." This eliminates provincial probate courts and other such normal processes except for matters expressly referred by the minister, and substitutes a bureaucracy within the department to carry out the processes set out in the Indian Act.

Under section 42 of the Act, "... all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister...." The Indian Estates Regulations set out how this authority is to be exercised, and guide the officials who discharge the minister's responsibilities. The Act restricts the application of this authority to Indians "ordinarily resident" on a reserve (any reserve; not necessarily his or her own), or Crown land. Moreover, it applies only to Indians who have Indian "status" under the Act; not to non-status Indians or to First Nations people who have negotiated self-government and have their own governing statute, such as the Nisga'a of north-western British Columbia. Of Canada's 29 self-governing First Nations, some have testamentary powers in their own statutes. The situation is somewhat muddied, however, because a First Nation may, in its self-government agreement, have reserved to itself jurisdiction over succession, yet not be ready to make the necessary laws. For example, the Westbank First Nation, in B.C.'s Okanagan Valley, in its self-government agreement, declares its jurisdiction "in relation to the wills and estates of Members ordinarily resident on Westbank Lands who are Indians as defined under the Indian Act," but goes on to provide that the Indian Act succession provisions apply "until such time as the coming into force of the first Westbank Law enacted pursuant to the jurisdiction described in this Part." Such situations create a minefield for lawyers. For self-governing First Nations without wills and estates jurisdiction, provincial or...