Introductory thoughts
When we began assisting Indigenous clients with status under the Indian Act with drafting their wills, we found that there were few resources that addressed estate planning or estate administration matters under the Indian Act.[1] We soon discovered that estate planning and estate administration present several unique considerations for Indigenous peoples to whom the Indian Act applies. In this Wealth Matters article, we highlight several of these key considerations, with a particular focus on Indigenous peoples with status under the Indian Act and living on reserve. We have canvassed the information available and have produced this article in the hope that it will serve as a high-level resource for lawyers who assist Indigenous clients with these specific legal needs.
Context: Estate planning and estate administration
Generally speaking, estate planning is the process by which individuals anticipate and plan how to manage their assets during their lifetime and in preparation for their death or incapacity. Drafting a will is an integral part of the estate planning process, as it dictates how an individual’s assets will be distributed when they die. Estate administration is the process of organizing and distributing a deceased person’s assets to the beneficiaries of their estate. A person is considered to have died intestate if they do not have a valid will.
Terminology is important
The term “Indian” is outdated and offensive. In this article we will instead use the term “Indigenous person with status” – or “Indigenous peoples with status” – where possible. However, the term “Indian” still possesses legal meaning under the Indian Act as an Indigenous person “with status” and thus in certain circumstances it must be used.
The term “Indigenous” is an umbrella term for First Nations, Metis, and Inuit Peoples in Canada. However, in the context of estate planning and estate administration, the Indian Act only applies to Indigenous peoples who are members of a First Nation and have “status” under the Indian Act. Therefore, when we use the term “Indigenous” in this article, we are referring to someone who is a First Nations band member who has status and is living on reserve land. The term “First Nation” can describe a large ethnic grouping, such as the Cree Nation, or it can be synonymous with the term “band”, which describes smaller communities.[2]
Relevant sources of law
Federal legislation
Estate planning and estate administration are typically governed by provincial legislation in Canada. However, the Federal Government (or the “federal Crown”) possesses exclusive jurisdiction over “Indians and Land Reserved for Indians” under section 91(24) of the Constitution Act, 1867.[3] This includes estate planning and estate administration matters. These powers are enacted through sections 42-50.1 of the Indian Act[4] and the Indian Estates Regulations.[5] In addition, the Family Homes on Reserves and Matrimonial Interests or Rights Act[6] (“Family Homes Act”) was introduced by the Federal Government in 2013 to fill in certain legislative gaps related to the protection of spouses and common-law partners of Indigenous peoples with status who are not otherwise protected by the Indian Act.
Provincial legislation
Many practitioners think provincial laws that do not conflict with the Indian Act or the Indian Estate Regulations are applicable to Indigenous peoples with status’ estate planning and administration needs in accordance with section 88 of the Indian Act.[7] However, historical jurisprudence is not consistent on whether the Indian Act “constitutes a comprehensive testamentary code in respect of Indians”: see Canard v Canada AG and Re Williams Estate.[8] Practitioners should therefore approach estate planning and estate administration for Indigenous clients with some caution, and be up to date with current provincial legislation.
Customary law
Customary law that does not conflict with the Indian Act may also be a relevant source of law for estate planning for Indigenous clients.[9] Customary law is described as traditional law of Indigenous peoples that reflects the “broad consensus of the membership of a First Nation”,[10] and can include a First Nation’s self-governance agreement. Interestingly, several self-governance agreements expressly override the Indian Act’s wills and estates provisions and replace them with applicable provincial law, the laws of the First Nation, or specific legal standards delineated in the relevant self-government agreements for individual testators: see: Westbank First Nation Self Government Agreement;[11] the Sioux Valley Dakota Nation Self Government Agreement;[12] and the Tla’amin Final Agreement.[13]
Where possible, customary law must be recognized as valid law to honour and respect Indigenous peoples’ right to self-determination in the spirit of truth and reconciliation.[14]
For estate planning purposes, to whom does the Indian Act apply?
The Indian Act applies to “Indians” (i) with status; and (ii) who “ordinarily reside” on reserve land.[15]
With status
Indian status (or registration) provides legal standing, along with certain rights and privileges, to a person registered under the Indian Act. Eligibility is based on descent in one’s family. An Indigenous person must be First Nation to receive status, but not all First Nation Peoples qualify for status. For clarity, this means that in the context of estate planning and estate administration, the Indian Act applies to First Nations and it does not apply to Metis or Inuit Peoples. Metis and Inuit Peoples are recognized as “Indian” under s.91(24) of the Constitution Act, 1867; however, they are not eligible to receive status under the Indian Act.[16]
Ordinarily reside
Generally speaking, reserve land is land set aside by the federal Crown for the use and benefit of a particular First Nation.[17] The Crown is the legal title owner of the land, but members of the First Nation have beneficial ownership and possession of the land, evidenced by way of a possessory certificate.
As discussed by the Supreme Court of Canada in Canada (Attorney General) v. Canard, ‘ordinarily reside’ has been held to mean:
“residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence… it connotes residence in a place with some degree of continuity and apart from accidental or temporary absences”.[18]
Accidental or temporary absences, such as medical care, will not rescind a finding of “ordinary resident”: see Earl v. Canada (Minister of Indian & Northern Affairs) 2004 FC 897 (F.C.) and Dickson (Estate of), 2012 YKSC 71.
Key considerations
There are several key considerations for legal practitioners while handling the estate planning and estate administration of Indigenous peoples with status and who ordinarily reside on reserve land.
Federal ministerial powers
The Minister of Indigenous Services (the “Minister”) is granted significant authority over wills and estates governed by the Indian Act.[19] This includes approving executors of an estate where there is a will, or appointing administrators where an individual died intestate.[20] Indian Act wills do not need to strictly comply with provincial laws in order to be valid, as per section 15 of the Indian Estate Regulations, as the Minister may “fix” wills that fail to technically comply with the Indian Act. In fact, no will is of legal force or effect until the Minister has approved the will or a court has granted probate.[21] It is unclear why these actions are still required to be undertaken by the Minister, rather than having such powers be delegated to the First Nations bands themselves.
Intestacy
The Indian Act imposes its own rules of estate division upon intestacy. For example, spouses are entitled only to the first $75,000 of an intestate’s estate (compared to $350,000 under the Succession Law Reform Act, which applies to estates in Ontario not governed by the Indian Act).[22] Further, nieces and nephews are not entitled to an intestate’s reserve land: see Okanagan Indian Band v. Bonneau 2003 BCCA 299.
Unfortunately, intestacy is highly prevalent for Indigenous peoples with status to whom the Indian Act applies. According to a government report, approximately 90% of Indigenous peoples with status and living on reserve land die without a will.[23] For context, in 2022 only 51% of Canadians who are not Indigenous peoples with status do not have a will.[24] This is problematic. Where an Indigenous person with status living on reserve does not have a will, the Minister must appoint someone to administer the estate.[25] This results in lengthy delays and a failure to capture the deceased’s testamentary wishes. Comparatively, an intestate estate under provincial legislation is oftentimes administered by the deceased’s family member.
Increasing access to knowledgeable and culturally competent lawyers at an accessible cost may result in lower rates of intestacies of Indigenous peoples with status. Although the Truth and Reconciliation Commission does not directly address this, it is in the spirit of reconciliation to promote Indigenous self-governance and independence in all facets of life.
Land distribution
As discussed above, reserve land is held by the federal Crown for the benefit of a First Nation (“legal” title). Thus, individual Indigenous peoples with status who live on reserve land only have a possessory interest, which is evidenced by way of a possessory certificate (“beneficial” title).[26] Typically, off of reserve land, individuals own property in fee simple, which, put simply, means they own both the legal and beneficial title. Possessory certificates may be bequeathed only to members of the band, and the land transfer must be approved by the Minister. Often, there is poor documentation with respect to possession on a reserve, as many First Nations have their own ways of distributing land.[27] Thus, certainty of tenure is not absolute. This is one of the primary challenges that must be considered while drafting wills under the Indian Act: legal professionals must consider how these rules impact a grantor’s rights and a beneficiary’s eligibility. The beneficiary’s eligibility to receive the certificate is determined by whether they possess status under the Indian Act.
Spousal relief
Under the Indian Act, common-law partners are recognized as beneficiaries. However, if the matrimonial home is on reserve land, it can only be passed on to a partner if the partner is an Indigenous Person with status. The matrimonial home is the home ordinarily occupied by a person and their spouse as their family residence, and is granted certain protections under provincial legislation.
There are some remedies under the Indian Act and the Family Homes Act regarding the unique treatment of the matrimonial home. For example, the Minister may declare a will to be void if the will fails to appropriately provide for a person (i.e. a spouse or a child) for whom the testator had a responsibility to provide.[28] A spouse may apply for an order for exclusive possession under section 21 of the Family Homes Act, but this is rarely successful due to housing shortages and other legal and social concerns that many reserve lands face. Toney v Toney Estate 2018 NSSC 179 is one of the only published cases wherein an elderly and disabled widow without status was successful in obtaining an order for exclusive possession of the matrimonial home, which she shared with her husband, the First Nation’s Chief, until his death.
Alternatively, and more commonly, a spouse may make an application under section 36 of the Family Homes Act for an equalization payment with respect to the matrimonial home within 10 months of the deceased band-member spouse or common law partner’s death. In many cases, enforcement of equalization payment is difficult, even where court ordered, for the same reason that exclusive possession orders are rare.[29] This is contrasted with provincial treatment of the matrimonial home, where both parties are equally entitled to share in the full value at the date of separation or death regardless of who brought the home into the marriage.
Final remarks
Lawyers who serve clients whose estate planning and estate administration goals are governed by the Indian Act should have a basic understanding of the topics discussed in this paper in order to effectively meet the needs of these clients. Cultural competency and understanding is highly important in this area of the law,[30] as is a basic understanding of the Indian Act, Indian Estate Regulations, and Family Homes Act. We hope that this paper will act as a primer for practitioners who assist Indigenous peoples with status and who live on reserve.
Should you have any questions or concerns, please feel free to reach out to a member of Miller Thomson’s Private Client Services group.
[1] Indian Act, RSC 1985, c I-5,
retrieved on 2022-12-02.
[2] Gadacz, René R. “First Nations in Canada.” The Canadian Encyclopedia. Historica Canada. Article published February 07, 2006; last edited September 23, 2022.
[3] The Constitution Act, 1867, 30 & 31 Vict, c 3, retrieved on 2022-10-28.
[4] Indian Act, RSC 1985, c I-5, retrieved on 2022-10-28 [Indian Act]
[5] Indian Estates Regulations, CRC, c 954, retrieved on 2022-10-28.
[6] Family Homes on Reserve and Matrimonial Interests or Right Act, S.C. 2013, c. 20 [Indian Estates Regulations].
[7] Section 88 of the Indian Act states: “Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.”
[8] Canada (Attorney General) v. Canard 1972 CarswellMan 69 [Canard] at para 25; Re Williams Estate (1960), 32 W.W.R. 686, 1960 CarswellBC 89, [1960] B.C.J. No. 81 (S.C.), at paras 9-12.
[9] Louie v. Canada, ibid., at para 1. Louis v. Canada (Indigenous Services) at paragraph 1.
[10] Whalen v. Fort McMurray No. 468 First Nation, 2019 FC 732 (CanLII), [2019] 4 FCR 217, retrieved on 2022-12-04.
[11]Section 78(a): Westbank First Nation has jurisdiction in relation to the wills and estates of Members ordinarily resident on Westbank Lands who are Indians as defined under the Indian Act. Westbank First Nation Self-Government Agreement, at s. 78, online: https://www.wfn.ca/docs/self-government-agreement-english.pdf.
[12]Sioux Valley Dakota Nation Self Government Agreement, s.22.0, online: https://www.rcaanc-cirnac.gc.ca/eng/1385741084467/1551118616967.
[13] Tla’amin Final Agreement Act, SBC 2013, c 2 (in particular, Schedule – Chapter 17, ss 1-5).
[14] Truth and Reconciliation Commission of Canada, “Truth and Reconciliation Commission of Canada: Calls to Action,” s. 48(ii). Exhibits, accessed November 29, 2022, https://exhibits.library.utoronto.ca/items/show/2420.
[15] Indian Act, section 4(3).
[16] See Reference as to whether “Indians” includes in s. 91 (24) of the B.N.A. Act includes Eskimo in habitants of the Province of Quebec, [1939] S.C.R. 104; and Daniels v. Canada (Indian Affairs and Northern Development) 2016 SCC 12.
[17] We are not precluding other legal groups from having unique relationships with the Crown regarding reserve land title and use in Canada.
[18] Canada (Attorney General) v. Canard 1975 CarswellMan 32 at para 59.
[19] See s. 45(2) and 18(1) of the Indian Act.
[20] Indian Estate Regulations, supra, at s.9 and 11.
[21] See s.45(3) of the Indian Act.
[22] See s.48 of the Indian Act, and s. 44 and 46 of the Succession Law Reform Act.
[23] Final Report: Evaluation of Indian Moneys, Estates and Treaty Annuities,” Project Number: 1570-7/11003; citing AANO, 2nd Session, 41st Parliament; see also, British Columbia Assembly of First Nations “Wills and Estates”, Governance Toolkit.
[24] Korzinski, David. “What ‘Will’ Happen with Your Assets? Half of Canadian Adults Say They Don’t Have a Last Will and Testament.” Angus Reid Institute, April 1, 2022. https://angusreid.org/will-and-testament/#:~:text=A%20new%20Angus%20Reid%20Institute,that%20is%20up%20to%20date.
[25] Indian Estate Regulations, supra, at s.9 and 11.
[26] See s.20 and 24 of the Indian Act.
[27] Report of the Standing Committee on Aboriginal Affairs And Northern Development, May 2014 41st Parliament, second session.
[28] See s.46(1) of the Indian Act.
[29] Stacey L. MacTaggart, “Lessons From History: The Recent Applicability of Matrimonial Property and
Human Rights Legislation on Reserve Lands in Canada”, (2015) UWO J Leg Stud, Article 3, at p. 10.
[30] Guide for Lawyers Working with Indigenous Peoples, 2018 38th Annual Civil Litigation Conference 15C, 2018 CanLIIDocs 10788, <https://canlii.ca/t/sqtb>, retrieved on 2022-11-08, citing Nora Rock, “Providing high-quality service to Indigenous clients.” LawPRO Magazine Volume 15, Issue 1 at p. 6 [online at: http://www.practicepro.ca/LawPROmag/High_Quality_Service_Indigenous_Clients.pdf].
