Wills, Estates, and Guardianship under the Indian Act: the Potential Impact of the Reorganization of the Ministry of Indigenous and Northern Affairs Canada
The Trudeau Government announced on August 28, 2017, that the Ministry of Indigenous and Northern Affairs Canada (the “INAC”) will be divided into two separate ministries: the Department of Crown-Indigenous Relations and Northern Affairs (the “DCIRNA”) and the Department of Indigenous Services (the “DIS”), a proposal first made approximately 30 years ago by the Royal Commission on Aboriginal Peoples. Each of the new ministries has the potential to change the way that indigenous guardianships, powers of attorney, wills, and estates are governed under the Indian Act (the “Act”). In order to move beyond the historical paternalism of the Act, the bifurcation of the INAC will have to be more than a tokenistic restructuring of the Ministry bureaucracy; the success of this endeavor rests on a wholesale commitment by the Trudeau Government and its successors to replace colonial relationships with nation-to-nation relationships, and on the provision of the resources and personnel required to bring about such a transition in a collaborative way.
The INAC has existed, under a variety of pseudonyms, since the Department of Indian Affairs was established in 1880. The Act was first consolidated four years prior, in 1876, from pre-existing legislation such as the Gradual Civilization Act. The last legislative amendments aimed at revising the Act in a holistic or significant manner were undertaken in 1951 and 1985.
Wills and Estates
Under the Act, all authority with respect to matters and causes testamentary is “vested exclusively” in the Minister for all Indians ordinarily resident on reserve (I will refer to such a person as an “Indigenous resident of a reserve” or “IRR”). Therefore, under the Act, the Minister essentially stands in the place of the courts in determining issues such as the validity of wills, the administration of estates, testamentary transfers of land, and litigation with respect thereto. Additionally, should an IRR seek to access the provincial courts, which otherwise decide issues related to estates, they must first seek the consent of the Minister. Any appeals with respect to the Minister’s decisions must be made to the Federal Court within two months.
The Act is accompanied by the Indian Estates Regulations (the “Regulations”) which together lay out the powers and procedures for the disposition of property of a deceased IRR. Broadly speaking, many of the provisions are aimed at simplifying the estate administration process and ensuring the integrity of reserve lands. In effect, however, the Act and the Regulations uphold the special land rights of Indigenous residents of reserves by denying those same residents some of the legislative protections and testamentary freedoms proffered to other Canadians; all this at the discretion of a Ministry that, for most of its existence, pursued devastating policies of assimilation and colonization.
Guardianship and Powers of Attorney
The Act is similarly limiting with respect to the management of the property of an incapable IRR pursuant to a guardianship or power of attorney. The Act defines a “mentally incompetent Indian” as an IRR who has been deemed incapable pursuant to the legislation of the province in which they ordinarily reside. Similarly to the wills and estates provisions of the Act, “all jurisdiction and authority in relation to the property of mentally incompetent Indians is vested exclusively in the Minister.” The powers of the Minister in this regard include: the appointment of an administrator; orders with respect to the sale, lease, alienation, mortgage, and disposition of property for a variety of purposes; and orders and directions with respect to the satisfactory management of the living estates of an incapable IRR. The jurisdiction of the Minister extends to the off-reserve property of an IRR, as the Minister has the authority to make an order that such property be dealt with under the appropriate provincial legislation.
The above represents the entire legislative framework for the management of the property of an incapable adult IRR. What this means is that guardianship of property and continuing powers of attorney for property, as they exist in provincial legislation such as the Substitute Decisions Act, 1992, are functionally non-existent with respect to an IRR. Whereas someone living off-reserve can appoint an attorney for property who is empowered to act in a number of different scenarios, such an appointment would appear to be without legal effect for an IRR until the designated attorney is appointed as an administrator pursuant to Section 51(2)(a) of the Act.
Additionally, the silence of the Act with respect to guardianship of the person or powers of attorney for personal care, and the requirement that an IRR be deemed incapable pursuant to provincial legislation, force an IRR or someone seeking to care for them to navigate procedures and legislation in both the federal and provincial jurisdictions. In effect, in order to offer complete legal protection for an incapable IRR, interested parties would have to: (1) seek a determination that the IRR is incapable pursuant to provincial legislation; (2) seek an appointment as administrator the incapable IRR’s estate under the federal Act; and (3) if no power of attorney for personal care exists which is valid under provincial legislation, make an application for guardianship of the person pursuant to provincial legislation. Given that many Indigenous communities are under-served both in terms of the provision of healthcare and access to justice, it appears likely that many incapable Indigenous residents of reserves fall through the cracks of a system lacking comprehensive legislative provisions and judicial oversight.
The INAC Reorganization
According to the announcement from the Office of the Prime Minister, the split of the INAC is intended to reflect the renewed relationship between the Crown and Canada’s indigenous Peoples, with a focus on two tracks: “closing the socioeconomic gap between Indigenous Peoples and non-Indigenous Canadians, and making foundational changes to our laws, policies and operational practices based on the recognition of rights to advance self-determination and self-government.”  In essence, though the two goals are closely interrelated, the DIS will have jurisdiction with respect to the former, and the DCIRNA with respect to the latter.
The purview of the DCIRNA will primarily be concerned with nation-to-nation dialogue between the Crown and Indigenous Peoples, with the creation and implementation of new treaties and legislation to give effect to this dialogue; meanwhile, the DIS will focus on the provision of services to Indigenous Peoples, such as the administration of the estates of IRRs, and will use the increases in Indigenous self-governance as a benchmark for success. The dissolution of the INAC will be staged, with the creation of the two new Ministerial roles being immediate, and the Minister for the DCIRNA taking the lead in determining how to best replace the INAC, in consultation with Indigenous Peoples. As it stands, however, little is known about new or additional procedures or policies that will govern this transitional process. It is also unclear at present whether the reorganization of the INAC will be accompanied by the reallocation of resources, or the provision of additional resources, in order to give a strong financial underpinning to the renewed relationship between the Crown and Indigenous Peoples.
The response to the Trudeau Government’s dissolution to the INAC has been mixed. While some argue that the split, in creating more targeted mandates for the new Ministers, will simplify and expedite the process of developing less patronizing legal relationships with Indigenous Peoples, other worry that the split is a case of form over content. With the limited information available at this juncture, it is impossible to make a determination either way. As reported by APTN News, the national chief of the Congress of Aboriginal Peoples (“CAP”), was caught off-guard by the Prime Minister’s announcement, and as yet to determine what exactly the split means for the CAP. One hopes that more and better information will be forthcoming in the immediate future so that the new Ministries and Indigenous groups can adequately plan and prepare for the transition.
Impact on Indigenous Wills, Estates, and Guardianships
Despite the limited information available at this time, it is possible to conceive of how the dissolution of the INAC will impact the administration of the estates of IRRs, either incapable or deceased, under the Act. Most clearly, the reorganization would place the provision of services related to the wills, estates, and guardianship of IRRs under the purview of the DIS, while leaving the big-picture issues of treaty negotiation and legislative change regarding these services to the DCIRNA.
Viewed in a positive light, this would mean that the DIS would be better able to deliver services to IRRs as a result of its more specialized mandate. This has the potential to provide an IRR with greater access to justice if the reorganization allows the DIS to provide estates services in a more efficiently, with greater oversight, and with increased participation by concerned Indigenous individuals. A focus on the provision of legal and rights information by the DIS would also support access to justice for Indigenous Peoples.
However, as of 2014, the INAC had only 44 employees to deal with the approximately 3,600 estates files opened for IRRs in a given year. Several cases point to instances where delays by the Minister, inappropriate decisions by the Minister, and/or insufficient investigation by the Minister have led to problems with the administration of the estate of an IRR. These are procedural and organizational issues that will require adequate resources to resolve. Pending greater information, most concerned individuals are likely to remain skeptical about promised improvements to the provision of estates and guardianship services under the patronizing provisions of the Act.
It is with regarding the patronizing nature of the Act that the reorganization of the INAC has the potential to improve the substantive rights of IRRs as they pertain to estates and guardianship matters. Unfortunately, these improvements are years, if not decades, away. If the DCIRNA is granted sufficient resources and powers to pursue new treaties and legislative amendments, there is great potential for bands and other Indigenous groups to negotiate greater self-determination in estates matters. To this point, a few bands have already used treaties to opt out of the estates regime under the Act and opt in to the appropriate provincial legislation.
The best-case scenario as the INAC dissolution moves forward is that the DCIRNA is able to work collaboratively with various Indigenous groups to create legislation to amend the Act or use treaties to supersede the Act, thereby adapting Indigenous succession and guardianship law in a way that reflects the unique histories of Indigenous groups and protects the rights of individual IRRs. Conversely, the worst-case scenario is one where there is a lot of discussion, and some legislative changes, but little de facto difference between the old regime and the new. Insufficient consultation, under-resourcing of the Ministry, and changes in government could all stand in the way of progress. Unless the DCIRNA is able to achieve substantive change to the law in a relatively short time period, there is an ever-present danger that the commitment to a “renewed relationship” based on self-determination will become another broken promise to Canada’s Indigenous Peoples.
In the practice of estates law in Ontario, it is generally taken for granted that individuals are given a wide degree of testamentary freedom, and access to the protections of the courts as a matter of course. For Indigenous Canadians living on reserve this is simply not the case. The reorganization of the INAC presents an opportunity to move beyond the paternalistic and antiquated Indian Act by improving the provision of services to and legislating greater self-determination for Indigenous Peoples. This is especially important in the areas of succession and guardianship, as the laws respecting the transfer and maintenance of wealth have a significant impact on the socioeconomic structures of society from one generation to the next. It is now up to the DIS and DCIRNA to give effect to the language of reconciliation under the new Ministerial regime.