Testamentary Freedom and Indigenous Estates

The Succession Law Reform Act (“SLRA”) is the guiding Ontario legislation for determining the boundaries and limitations of testamentary freedom. The SLRA generally governs wills in Ontario, subject to certain exceptions, including the federal regime that applies to certain First Nations people under the Indian Act (the “Act”). This article will examine the differences between the requirements surrounding the validity of testamentary documents for First Nations people subject to the Act and those governed by Ontario’s general wills regime.

1. Indigenous Identity

The legal determination of who is an “Indian” for the purposes of the Act is defined in subsection 2(1). Although the term “Indian” is not an appropriate term to use when referring to Indigenous people generally and the federal government recognizes that the term is rooted in colonialism and racism, it is used as the legal term for First Nations people entitled to registration under the Act.

For the Act and Indian Estates Regulations (the “Regulations”) to apply to an estate, the deceased must fall within the Act’s definition of “Indian.” The Act defines “Indian” as a person who is registered or entitled to be registered. The Act, in subsection 4(1), expressly provides that a reference to an “Indian” does not include Inuit people. Métis people are likewise not entitled to registration under the Act merely by virtue of the difference in bloodline and family registry, which is determined according to the eligibility criteria in section 5 and 6 of the Act.

Unfortunately, due to a pattern of discriminatory practices, many First Nations people historically lost, or were denied, registration despite their First Nations ancestry. One such practice was enfranchisement, which could involve the voluntary or involuntary removal of an individual from the legal category of “Indian” under historical versions of the Act.

From 1869 until 1985, discriminatory provisions of the Act meant that First Nations women who married non-Indian men could lose their status, with consequences for their descendants. By contrast, First Nations men who married non-Indian women generally did not lose their status, and their wives could acquire status. These sex-based inequities were partially addressed through successive amendments to the Act, culminating in Bill S-3. In 2019, the remaining “1951 cut-off” was removed, extending registration entitlement to additional descendants of women who had lost status because of marriage.

However, not all historical effects of enfranchisement have been remedied. The federal government continues to identify enfranchisement as one of the remaining inequities in the Act’s registration provisions.

Historically, enfranchisement could also occur for reasons unrelated to marriage. For example, provisions of the 1876 Indian Act provided for enfranchisement in circumstances involving university degrees, admission to certain professions, and entering religious orders or becoming a minister.

The continuing effects of these historical provisions demonstrate that ancestry alone does not necessarily determine whether an individual falls within the legal status of the Act’s definition of “Indian.”

2. Residence

In addition to status requirements, the Act imposes a residency requirement for certain provisions relating to estates. Section 4(3) provides that sections 42 to 52 do not apply to an “Indian” who does not ordinarily reside on a reserve or on lands belonging to the Crown, unless the Minister otherwise orders.

The relevant estate provisions are found in sections 42 to 52 of the Act. Accordingly, an individual must generally satisfy both the statutory definition of “Indian” and the applicable residence requirement for this federal estate regime to apply.

In Canard v Canada (Attorney General), the Manitoba Court of Appeal considered whether the deceased ordinarily resided on a reserve for the purposes of the Act’s estate provisions. The concept of ordinary residence does not require continuous physical presence on the reserve. Rather, the relevant consideration is whether the reserve was the individual’s ordinary or customary place of residence, with temporary or occasional absences not necessarily defeating ordinary residence. The Supreme Court of Canada subsequently upheld the conclusion reached by Manitoba’s Court of Appeal.

3. Wills Governed by the Indian Act and Non-Indigenous Wills

For First Nations individuals who meet the status and applicable residence requirements, the Act and the Regulations govern the administration of their estates. This regime differs significantly from Ontario’s general wills regime under the SLRA.

Under Part I of the SLRA, a will is required to be in writing and, subject to certain exceptions, must satisfy specific execution requirements, including the presence and attestation of two witnesses. Section 21.1 nevertheless permits courts to validate a document that was not properly executed if they are satisfied that it sets out the deceased’s testamentary intentions.

The Act provides a different approach for wills governed by the federal regime. Under section 45(2), the Minister may accept as a will any written instrument signed by an “Indian” that indicates their wishes or intention regarding the disposition of their property on death. Further, section 45(3) provides that such testamentary documents  executed by have no legal force or effect as a disposition of property until they have been approved by the Minister or probate has been granted by a court under the Act.

The Regulations reinforce the flexibility of this regime. Section 15 provides that a written instrument signed by an “Indian” may be accepted as a will by the Minister regardless of whether it conforms to the requirements of provincial law.

4. Limitations of Testamentary Freedom

Although there appears to be greater testamentary freedom for First Nations people governed by the Act due to the lack of strict provincial statutory formalities, the determination of status, residence requirements and the Minister’s role paradoxically limit testamentary freedom through the colonial structure of the Act.

1. Status and Residence

About 62.5% of registered Indians live off reserves. As a result, many registered First Nations people will not satisfy the residence requirement for the application of sections 42 to 52 of the Act.

Additionally, a First Nations person who meets the residence requirements may not meet the status requirements. Hypothetically, an individual who lives on a reserve and has been granted membership by a First Nation may nevertheless not qualify for registration under the Act due to the historical effects of enfranchisement or other statutory registration requirements. This is because First Nation membership and registration under the Act are distinct legal concepts.

2. The Minister’s Role in Limiting Testamentary Freedom

Although there are benefits to the lack of statutory formalities for valid wills, the Minister’s role in approving and administering wills governed by the Act may also be viewed as a barrier to Indigenous autonomy.

The scope of the Minister’s statutory role raises concerns about the continued control of Indigenous estates and wealth by a federal institution. Despite Canada’s recognition of Indigenous self-government, the administration of estates under the Act remains, in many circumstances, subject to a federal statutory framework.

Another area of concern is that Western interpretations of traditions and customs surrounding estates and wealth may differ from those of various Indigenous communities. For example, in Louie v Canada (Indigenous Services), the Federal Court considered an argument based on the customary law of the Okanagan Indian Band. The Court did not definitively determine that customary law governed the issue, but it assumed, without deciding, that the “interest of the band” under the Act could include compliance with a First Nation’s laws or customs. The claim ultimately failed because the applicant had not established the relevant Okanagan law.

Many have suggested that it would be more sensible to place Indigenous estate administration in the hands of Indigenous communities. The transfer of this power has occurred for some First Nations in British Columbia through modern treaty and self-government agreements, as is the case for Westbank First Nation.

Conclusion

The statutory differences between the estate regimes applicable to First Nations people governed by the Indian Act and those governed by Ontario’s general wills legislation reveal that the benefits of reduced formalities are nuanced. While the federal regime may provide greater flexibility in the creation of wills, that flexibility exists within a statutory framework that continues to impose requirements based on registration, residence and federal administration.