Attawapiskat Chief Theresa Spence’s hunger strike has thrust aboriginal issues back into the national media spotlight. As I read and watch the many stories about this issue, I have started to think about how wills and estates of aboriginals are currently dealt with in Canada.
The statutory regime that governs wills and estates of aboriginals is made up of the Indian Act (the “Act”), together with the Indian Estates Regulations (“Regulations”) made under the Act. These two pieces of legislation purport to provide a code with respect to the domestic affairs of aboriginals and the use of reserve land.
On top of the Act and the Regulations, recently renamed Aboriginal Affairs and Northern Development Canada (AANDC) has also created the “Living Estates Program,” which is responsible for ensuring that the federal government’s obligations and responsibilities contained in ss. 51-52 of the Act are met by providing for the management and administration of the estates of aboriginal minors and mentally incompetent aboriginals as defined by the Act.
AANDC has also created the “Decedent Estates Program,” which is tasked with ensuring that the federal government’s legal obligations and responsibilities under ss. 42-50 of the Act are met by providing for the management of the estates of aboriginals.
It is interesting to note that the rules for aboriginal and non-aboriginal Canadians differ in certain respects. For example, the formal requirements for will-making are less strict under the Act than they are under provincial legislation regarding wills. Subsection 45(2) of the Act provides the requirement that the will be made in writing, signed by the testator and indicate his or her intentions regarding the disposition of his or her property upon death. Section 15 of the Regulations merely requires that the will be in writing and signed by the testator. Section 15 also states that a will need not conform “with the requirements of the laws of general application in force in any province at the time of the death […].” Furthermore, under s. 45(3) of the Act, the Minister of Aboriginal Affairs and Northern Development Canada has to approve the will in order to give it force and effect. Section 46 of the Act outlines the reasons the Minister may rely on in declaring a will void.
It is important to note that these estate provisions do not always apply. This is particularly the case when the relevant First Nation has enacted their own laws pursuant to a self-government agreement.