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Canada’s Aboriginals: The Legacy of Institutional Paternalism

As previously discussed by Arieh Bloom and Lionel J. Tupman in their Advocates Quarterly paper entitled “The Honour of the Crown and Indian Succession and Inheritance Law in Canada: Fiduciary Protection or Creeping Re-Appropriation of Aboriginal Property?,”[1] although Canada prides itself on being ethnically diverse, and is perceived by many in the international arena to be the “epicenter of cultural pluralism,” racism and patriarchal ideals arguably remain imbedded within our nation’s laws.[2] Although Canada’s particular brand of racism often carries with it a “soothing and even noble veneer,” its effects are no less devastating.[3] One must only look at the living standards of Canada’s Aboriginal populace and the lack of historical judicial awareness to their plight in order to have a basic understanding of how systemic racism has negatively impacted the legal-decision making process in Canada, and has successively led to the marginalization and dismissal of indigenous peoples and their cultures.[4]

In recent years, the notion that Canada is failing its indigenous populace has attracted increasing attention from scholars, as well as legislators at both the federal and provincial levels.[5] Yet, despite various public inquiries, and recommendations from those doing academic research, patriarchal policies remain entrenched within the statutory regime that governs survivorship rights and estates of aboriginals. The Indian Act and the Indian Estates Regulations collectively govern the wills and estates of Aboriginals in Canada. Under the Indian Act, the Minister of Indian and Northern Affairs Canada (the “Minister“) has broad jurisdiction over the estate of a deceased aboriginal individual if:

  1. A person was ordinarily resident on a reserve or on federal or provincial Crown land at the time of his or her death, and
  2. A person was registered as an Indian or entitled to be registered as an Indian (“Indian”).[6]

Section 46 of the Indian Act outlines a number of circumstances in which the Minister may declare a will to be void, either in whole or in part. The Minister may declare the will of an Indian to be void in whole or in part if he is satisfied that one of the following has occurred:

  1. the will was executed under duress or undue influence;
  2. the testator at the time of execution of the will lacked testamentary capacity;
  3. the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide;
  4. the will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to the Indian Act;
  5. the terms of the will are so vague, uncertain or capricious that proper administration and equitable distribution of the estate of the deceased would be difficult or impossible to carry out in accordance with the Indian Act; or
  6. the terms of the will are against the public interest.

In the event the Minister declares that a will is void in its entirety, or in part, the intestacy provisions of s. 48 of the Indian Act apply to the estate assets affected by the voided provisions. Under s. 48 the Minister has the authority to vary the quantum allocated to a surviving spouse, common law spouse or issue. Additionally, the Minister retains authority over all transfers of reserve land to the heirs or beneficiaries. The Minister will not register any administrative transfer of reserve land without documentary proof of a personal representative’s authority to act. As such, all transfers of reserve land must first be approved by the Minister.

Reserve land in particular is subject to a vastly different system which can have significant consequences in bequests of property for members of Canada’s Aboriginal populace. According to section 50 of the Indian Act, “a person who is not entitled to reside on a reserve does not by devise or descent acquire a right to possession or occupation of land in that reserve.” On intestacy, an interest in reserve land cannot be inherited by heirs more remote than brothers or sisters. Therefore, nieces or nephews of a deceased Aboriginal may not inherit an interest in reserve land through an intestate estate. Instead, in a situation where a niece or nephew would have otherwise inherited an interest in reserve land on intestacy, the interest in the land is transferred to the deceased Aboriginal’s band.

Prior to colonization, Aboriginal communities cared for their people and children in accordance with their cultural practices, laws and traditions.[7] These cultural based systems of care were based on the notion that one’s extended family should be valued and that each individual was a “prized gift from the creator.”[8] However, with the arrival of European settlers, and the subsequent imposition of colonial practices and policies, these traditional systems of care were all but destroyed. The Canadian judicial system, which was initially built in order to maintain peace, order, and stability in a Euro-Canadian society subsequently, established policies that continue to have a dramatic effect on the Aboriginal populace. According to Statistics Canada, approximately 799,010 people, or 3 per cent of Canada’s population, identified themselves as having an Aboriginal identity in 1996. Ten years later, the census reported 1,172,790 people, or 4 per cent of the population. The proportion of people reporting an Aboriginal identity continues to grow, according to the most recent data. As such, it is quite evident that the government of Canada needs to start adopting policies which “reconcile Indian rights, interests, needs and aspirations,” as this is the only way for members of Canada’s indigenous populace to truly be “recognized as important actors with independent objectives,” and receive the fundamental equality that they deserve as Canadians.

[1] See http://welpartners.com/resources/WEL-Indian-Act-Inheritance-Law.pdf

[2] Kline, M. (1994). The color of law. Social & legal studies: an international journal (pp. 451-476). USA: Sage.

[3] Mandell, L. (2003). Offerings to an emerging future. In A Walkem (Ed.), Box of treasures or empty box?: Twenty Years of Section 35 (pp. 159-174). Canada: Theytus Books.

[4] Roberts, J., & Melchers, R. (2003). The incarceration of aboriginal offenders: trends from 1978 to 2001. Canadian Journal of Criminology & Criminal Justice, 45(2), 211-242.

[5] Andersen, C. (1999). Governing aboriginal justice in canada: constructing responsible individuals and communities through ‘tradition’. Crime, Law & Social Change, 31.

[6] Indian Act, R.S.C. 1985, c. I-5,

[7] Ibid.

[8] Ibid.


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