Part I introduced the concept of estate administration under the federal Indian Act. Part II of this series discussed the procedural elements of will applications and voidance under the Indian Act. Part III of this article series will analyze Indian Act wills through a pluralistic lens, looking at the interaction between provincial legislation and Indigenous legal traditions, including the requirement for wills to be devised in the interests of the Band pursuant to tribal custom.
While the Indian Act is federal legislation, its provisions—and, subsequently, probate procedures—do not exist in a vacuum. Two distinct sources of law compete with it: parallel provincial succession laws and Indigenous legal traditions and customs. Courts have dealt with these two issues in various ways, handling the respective legislative guidelines. Two passages are instructive. First, Section 88 of the Act overrides competing provincial legislation:
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.”
Second, subsection 46(1)(d) of the Act allows the Minister to void a will under the condition that “the will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this Act.” Both provisions indicate that Parliament has considered how Crown-Indigenous relations must interact with all the sources of law in Canada, including legal traditions that precede federation and those that bolster Canadian federalism.
Federalist Tensions: Poitras v. Khan
The decision in Poitras v. Khan, 2016 SKQB 346 investigates how conflicts between provincial and federal legislation can trigger the public interest provision in the Indian Act. Sharon Poitas, a First Nations woman living on Peepeekisis First Nation reserve, died in 2014. Ten years prior, she executed a Will, naming her oldest son Jason executor and giving her estate in nearly equal shares to her three children. In 2006, she met Aman Khan online, and the two married and lived as husband and wife in her home until her death. Because they met after 2004, her Will makes no mention of him and she did not execute a new will.
After her passing, Jason submitted her will to Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) per Indian Act regulations. Khan challenged the will, arguing that he was entitled to a share of Sharon’s estate under both the provincial Wills Act and the undue hardship concern for dependents under the Indian Act (discussed in Part IV of this article series). The Minister transferred jurisdiction over the matter to the Court of King’s Bench for Saskatchewan to decide the matter.
One of the issues that the court considered was whether the Saskatchewan Wills Act affected the validity of Sharon’s 2004 Will, engaging the public interest concern under subsection 46(1)(f) of the Indian Act. Under section 17(1) of the Saskatchewan Wills Act, a will is revoked when a testator marries or cohabitates in a spousal relationship continuously for two years. An analogous provision does not exist under the Indian Act. The Court first turned to section 88 of the Indian Act in ousting the provincial legislation. It also considered section 15 of the Indian Estates Regulations, which provides:
Any written instrument signed by an Indian may be accepted as a will by the Minister whether or not it conforms with the requirements of the laws of general application in force in any province at the time of the death of the Indian.”
Khan argued that section 17 of the Wills Act placed into question the testamentary intentions reflected in Sharon’s will, given that they had been happily married at the time of her death. The Court noted that this argument engaged section 46(1)(f) by raising public interest issues concerning the applicability of provincial spousal protections not available to status Indians.
Ultimately, however, the Court held that Sharon’s 2004 Will reflected her testamentary wishes, and that Khan has other valid legal recourse to pursue remedy: under provincial legislation, Khan was able to make an application as a spouse of the deceased pursuant to section 30 of The Family Property Act and under The Dependants’ Relief Act, 1996, SS 1996, c D-25.01. Therefore, while he could not invalidate the Will under section 46 of the Indian Act, the Court was satisfied that he was not denied justice. Moreover, the Court affirmed Parliament’s intent to elevate the federal Indian Act over all parallel provincial succession laws. Finally, the Court also noted that federal legislation not yet in force at the time of its decision would impact future individuals in Khan’s position, pursuant to section 34(1) and (3) of the Family Homes on Reserves and Matrimonial Interests or Rights Act. This legislation protects the entitlement of survivors of a First Nations individual.
Indigenous Custom and the Interests of the Band: Louie v. Canada
In Louie v. Canada (Indigenous Services), 2021 FC 650, the Federal Court looked at subsection 46(1)(d) of the Act, which states that a will may be void where it “purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this Act.” Jimmie Louis, a member of the Okanagan Indian Band, died in 2015. In a 2011 Will, he left the residue of his estate to a friend, the respondent Jenelle Renee Brewer, also a member of Okanagan. His estate comprised valuable lands on Okanagan’s reserve.
The lands in question originally belonged to John and Jimmie Louie’s grandfather, Gaston Louie, and then to their father William Louie. Upon William Louie’s death in 1998, the lands passed to Esther Louie, William’s widow. In 2002, Esther transferred one-half of the lands to her son Jimmie Louie and the other half to her son John Louie.
After Jimmie Louie’s death, John Louie applied to the Minister of Indigenous Services to have Jimmie’s will declared void, pursuant to section 46 of the Act. One of the reasons he invoked was that Jimmie’s will conflicted with tribal custom and the interests of the Band requirement. Okanagan’s custom requires holders of certificates of possession to transmit their lands to their eldest son or daughter. If someone does not have children, they must bequeath their land to their closest relative, in order for land to remain in the family. John argued that Jimmie would have acted contrary to custom when he bequeathed his land to Ms. Brewer, who is not a member of the Louie family.
To support his claim, John provided the affidavits of five Elders of Okanagan or neighbouring First Nations, who described a custom whereby lands allotted by way of certificates of possession under the Act to a family head were intended to remain in the family. Thus, according to these five Elders, Jimmie Louie could not bequeath his land to Ms. Brewer, who was not a member of the Louie family. On appeal to the Federal Court, the Court discussed the question of tribal custom as two separate issues: whether the Will conflicted with established Canadian law, and whether it conflicted with Okanagan law.
On the will’s conflict with other Canadian law, the Court looked to the meaning of subsection 46(1)(d). The Court discussed whether the words “interest of the band” were made in reference to Okanagan law or “custom.” The Court did not definitively decide on this issue, but assumed that “interest of the band” includes compliance with a First Nation’s laws or “customs.” However, since John’s claim under s. 46(1)(d) ultimately failed on the issue of Okanagan law. The Court decided it was unnecessary to explore the Canadian law issue further, saving the question for future jurisprudence.
On the matter of Okanagan law, John set out to prove the alleged custom by filing the affidavits of five First Nations Elders, including three members of the Okanagan, all of which were substantially similar. They stated that in accordance with the practice that has been followed since time immemorial and the oral traditions and customs passed down from the other Elders, reserve land is passed down along family lines when an Okanagan landowning band member dies, usually through the oldest son. Typically, band members can not transfer lands outside their family lineage.
The Court noted that Indigenous law must always be considered and is recognized by the common law in a dynamic process of evolution, as affirmed by the Supreme Court in Mitchel v MNR, 2001 SCC 33. Indigenous law can also borrow from common law sources without losing its Indigenous character, as affirmed in Pastion v Dene Tha’ First Nation, 2018 FC 648. For John to prove the Okanagan law’s operability under the Indian Act, he would need to prove that the practice set out by a particular rule is “firmly established, generalized and followed consistently and conscientiously by a majority of the community, thus evidencing a “broad consensus” as to its applicability.” (Francis v Mohawk Council of Kanesatake, 2003 FCT 115 at paragraphs 35–36).
The Court ruled that John’s evidence was insufficient to prove the alleged custom. It stated, “Given the nature of the alleged custom, a bare assertion that the practice has been followed for a long time does not prove that it attracts the broad consensus of the community. It should come as no surprise that many individuals bequeath their property to their children. Yet, the fact that they often, or almost always act in this way does not abrogate testamentary freedom.” The Court then noted contrary evidence to the argument that the practice was a bona fide law: there was evidence of land transactions between members of different families; the language of the affidavits stressed flexibility (“usually the eldest son”); and the facts of John’s case, in that his mother transferred land to her two sons, not just her eldest son, effectively dividing the family’s land contrary to custom. Thus, the evidence suggested that the alleged custom was more in the nature of a general practice, meant to be followed most of the time but allowing for exceptions or deviations. For these reasons, the Court found that Jimmie’s will did not purport land contrary to the Okanagan’s custom.
Poitras v. Khan and Louis v. Canada show how Indian Act succession laws are not insulated from the complex history of Canadian common law and Indigenous legal traditions. There is a flexible and evolving relationship between provincial, Indigenous, and federal legislation pertaining to Aboriginal peoples in Canada. For administrative decision-makers and courts, Indian Act interpretation looks to the common law of the relevant province as well as tribal custom and practice.
In its final words in the Louie decision, the Court appends a warning for future Indian Act disputes. The Court writes:
“In the result, John Louie has not brought sufficient evidence of the custom he alleges. In reaching this conclusion, I do not wish to suggest that proving Indigenous law in a Canadian court is an impossible task. I am mindful that Indigenous laws have been disregarded for a long time by Canadian authorities and that extensive evidence of them may not be readily available. Nevertheless, the matter should be taken seriously and the dangers of incorrectly recognizing Indigenous laws must not be overlooked.”
In the future, new federal legislation like the Family Homes on Reserves and Matrimonial Interests or Rights Act and firmly established Indigenous customs may impact whether the Minister approves or voids wills under the Indian Act.