When an Indigenous person passes away, their estate may not be subject to probate using the process set out in Rule 74 of the Rules of Civil Procedure. While laws governing wills and estates fall under provincial jurisdiction, Indigenous estates are an exception to the rule because the federal government has exclusive jurisdiction over “Indians and Land Reserved for Indians” under subsection 91(24) of the Constitution Act, 1867. As such, probate of the estates of Indigenous persons may instead be governed by the Indian Act.* (For a more in-depth discussion of the Minister of Indigenous Services’ power to grant probate of wills under the Act, see Justice Martineau’s decision in Earl v. Canada (Minister of Indian and Northern Affairs), 2004 FC 897).

The Indian Act does not apply to the wills and estates of all Indigenous persons, however. There are actually only two circumstances where the Act may be used to probate the estate of an Indigenous person – 1) if they are a registered Indian under the Act, or 2) if they are entitled to be registered: see the definition of “Indian” in subsection 2(1) of the Act. As such, the Act does not apply to the wills of Inuit people or Métis people, and may not apply to non-status Indigenous persons.

Indigenous persons who are ordinarily resident on a reserve

When determining whether to probate an estate under the Indian Act, whether or not that person was ordinarily resident on a reserve is a salient consideration. The June 2024 edition of the Estates Court Staff Procedures Manual expressly states that the Superior Court of Justice (“SCJ”) does not have authority to issue a certificate of appointment of estate trustee for the estate of an Indigenous person who was ordinarily resident on a reserve. 

What does it mean to be “ordinarily resident” on a reserve? According to the Procedures Manual,this terminology refers to “an eligible First Nations person who usually lives on a reserve and doesn’t have a primary residence off a reserve, subject to exclusions such as attaining education or care and services unavailable on a reserve.” This definition is consistent with the Supreme Court of Canada’s analysis in Attorney General of Canada et al. v. Canard, 1975 CanLII 137, where the court differentiated the concept of ordinarily residing, which “connotes residence in a place with some degree of continuity,” from a “special or occasional or casual residence.”

Under certain circumstances, however, probate of the estate of an Indigenous person who is ordinarily resident on a reserve can go through the SCJ. Section 44 of the Indian Act permits the Minister to consent to the SCJ exercising jurisdiction over the estate of an Indigenous person. The Procedures Manual explains that the SCJ will only have jurisdiction to appoint an estate trustee if a letter from Indigenous Services Canada is provided which expressly states that it will not be exercising its “statutory obligations and responsibilities in relation to the deceased’s estate and does not oppose the Ontario Superior Court of Justice assuming jurisdiction over matters relating to the estate.”

In some cases, the party representing the deceased’s estate may seek an order transferring jurisdiction over a will from the Minister to the SCJ, pursuant to subsection 44(2) of the Act. Such an application was discussed by the Federal Court in Earl.

Indigenous Services Canada may also choose not to exercise its statutory obligations and responsibilities in relation to an Indigenous estate for a variety of reasons, including the complexity of an estate’s assets, or ongoing family proceedings: see, for example, Kumagai v. Campbell Estate, 2018 BCCA 24. The deceased’s group affiliation could also be salient. As noted by Gwyneth Stadig and Maddi Thomas in their article “Estate planning and the Indian Act: Practical considerations for assisting Indigenous clients living on reserve”, estate administration may be impacted by a First Nation’s self-governance agreement:

… 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; the Sioux Valley Dakota Nation Self Government Agreement; and the Tla’amin Final Agreement.

Indigenous persons who are not ordinarily resident on a reserve

It is also important to bear in mind that the estates of Indigenous persons who are not ordinarily resident on a reserve may also be subject to the Indian Act, since the Minister has the power under subsection 4(3) to direct that the estate provisions of the Act apply to them. Given that the Minister can assume jurisdiction over such estates, the Procedures Manual states that the SCJ will not assume jurisdiction over the estate of an Indigenous person who does not ordinarily reside on a reserve unless the court is provided with written confirmation from Indigenous Services Canada that it does not oppose the SCJ assuming jurisdiction: see section 3.2.2. 

Thank you for reading, and have a great day!

Suzana. 

* The term “Indian” is used in this blog post, even though it is outdated and offensive, because it has legal meaning under the Indian Act. Where possible, the term “Indigenous” is used instead.