UNDRIP and Estate Management
Article 34: Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.
—United Nations Declaration on the Rights of Indigenous People
Before becoming a lawyer, I worked primarily as a research consultant and policy analyst for various Indigenous organizations. I have made a lot of friends over the years who continue to help me understand Indigenous culture and laws and what it is like to be a First Nations person in Canada. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has often been part of those conversations.
It took many years and many people to craft UNDRIP. It does not give Indigenous people rights, but rather identifies pre-existing rights. It also should not be seen as a ceiling, but as a floor. What does that mean? The preamble of Canada’s UNDRIP Act says that Aboriginal and treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982, “are not frozen but capable of evolution and growth.”
Canada’s UNDRIP Act which came into force on National Indigenous Peoples Day, June 21, 2021, was written and approved for the purpose of strengthening relations between the Government of Canada and Indigenous peoples. It also is meant to help interpret and apply Canadian law in a way that ensures Indigenous rights, as identified in UNDRIP and our Constitution, are respected.
When I joined the Edwards Bell Jewitt law firm, I quickly learned about the Estate Management Funding Program. It was established by Indigenous Services Canada to build capacity and provide more autonomy to First Nations communities and individuals regarding the creation of wills and management of estates.
Sounds good, right? However, as I reviewed the Program’s agenda and desired outcome, I wondered if this was just one more colonial effort that would erase yet more Indigenous tradition and culture. Was there room to acknowledge both Canadian law and Indigenous legal authorities surrounding the death of an individual?
The authority granted the Minister in sections 42 to 52 of the Indian Act seems very patriarchal and even oppressive. But if we remember that the Constitution divides power between the federal and provincial governments, part of the reasoning for this language becomes clearer. When section 42(1) says “all jurisdiction and authority in relation to matters and causes testamentary… is vested exclusively in the Minister,” we see that this is just one level of government (federal) establishing its jurisdictional authority over the other (provincial).
So, as I thought about the Indian Act and all the federal and provincial laws concerning estates, in light of the federal UNDRIP Act, I wondered about common ground between Crown and Indigenous matters in wills and estates law. One area that caught my attention was the latitude and understanding of family dynamics that exists for the purpose of distributing the deceased’s possessions.
The standard language in a will comprises many creative methods of distribution. Beneficiaries may decide how to share articles amongst themselves. The testator, to avoid arguments and family battles, may provide instructions within the will for sharing the estate. Still other methods may have the beneficiaries each choose an item or group of items, the order pre-set by the testator or executor using chronological age or some other metric. The variations are numerous.
With so many unique solutions to this one issue, it seems that there is plenty of room for incorporating culturally diverse practices. Feasts, circles, family gatherings, potlatches, and councils, are examples of Indigenous ways, developed over millennia, of dealing with possessions and potential conflict associated with someone dying.
The United Nations Declaration on the Rights of Indigenous Peoples “is affirmed as a source for the interpretation of Canadian law” according to the preamble of the UNDRIP Act. I look forward to the significant role Indigenous ways and laws may play in influencing wills and estates law.
Written by Dawne Mowbray
Edwards Bell Jewitt LLP