Last week, Ian Hull and Ekroop Sekhon blogged about the roles of Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada in the administration of estates of Indigenous peoples. For today’s blog, I will discuss how an Indigenous person’s interest in land on reserve is dealt with following their death.
Land Ownership on Reserve
First, it is important to understand the nature of land ownership in the reserve system. There are three property rights regimes that exist on reserves – the Indian Act (the “Act“), the First Nations Land Management Act, and customary or traditional rights. The scope of this blog is limited to the scheme set out in the Act.
Under the Act, the Crown retains legal title to reserve lands and holds them “for the use and benefit of the respective bands for which they were set apart” under treaties or other agreements. Reserves that serve as residences are legally referred to as “Bands”, though they can also be referred to as First Nations. Band members can obtain a “Certificate of Possession” (“CP“) which recognizes that they have “lawful possession” of land in a reserve that has been allotted to them by the band council and Minister of Indigenous Services (the “Minister“). Lawful possession is something less than fee simple ownership; however, the holder of a CP does have the right to occupy the land, build on the land, and use the land for resource extraction. In addition, s.24 of the Act allows the holder of a CP to transfer their interest in land to another band member(s), subject to the approval of the Minister. This includes transfers of interest into joint tenancy or tenants in common. Land in a reserve that is not assigned to individuals is held as community property for the benefit of the whole band. The Act prohibits the “surrender” and sale of reserve land by the band or the holder of a CP to anyone besides the Crown.
Succession of Land on Reserve
The succession provisions in the Act can be found at sections 42 to 50.1. According to these rules, an Indigenous person can devise land rights to an heir in their Will. However, the Will only has legal effect if and when it is approved by the Minister or a court has granted probate. Furthermore, only band members can directly inherit reserve lands. If the deceased attempts to dispose of reserve land in their Will in a manner that contravenes the Act or is contrary to the interests of the band, the Minister can declare the Will void, in whole or in part.
If an Indigenous person dies without a Will, no surviving relative whose degree of kinship is more remote than that of a sibling may inherit any interest the deceased held in reserve land. Where there is no descendant eligible to inherit the deceased’s interest in the land, it will revert to the Crown for the benefit of the First Nation.
If a beneficiary named in a Will or on intestacy is not a band member, then the deceased’s right or interest in the land will be offered for sale among persons who are entitled to reside on the reserve and the beneficiary will receive the proceeds from the sale. If no one purchases the interest in the land within a certain period of time, the interest reverts to the First Nation. In that case, the Minister may pay the beneficiary compensation for permanent improvements, as determined by the Minister. This compensation is paid from the First Nation’s funds.
Where the deceased died leaving a spouse or common-law partner, the surviving spouse or partner has an automatic right to occupy the matrimonial home for six months after the deceased’s death, pursuant to the Family Homes on-reserves and Matrimonial Interests or Rights Act. This is the case even if the surviving spouse has no interest or right to the home and is not a band member. In some situations, the court will grant the surviving spouse exclusive occupation beyond the six month period.
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