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w w w . C A N A D I A N L a w y e r m a g . c o m J A N U A R Y 2 0 1 7 33 enous and Norther Affairs Canada (IANC) to act as administrator of the estates of all deceased Indians. This officer can transfer the administra- tion of such estates to the superin- tendent of the reserve on which the deceased resided. 11 The Regulations also require the executor of an estate, whether approved or appointed by the Minister, to act under the instructions of the administrator where the Minister so orders. 12 All other Canadians are subject to provincial wills and estates legisla- tion, but in no jurisdiction are any individuals or institutions, other than the courts, empowered to act with such broad discretion. Limits on Intestate Inheritance One particularly concerning aspect of the Act is the limit it places on intestate inheritance. Unlike pro- vincial inheritance legislation which provides for intestate inheritance by remote relations of the deceased, section 48(8) of the Act states that if the surviving relatives are more remote than a brother or sister, any interest in reserve land vests in the Crown to the benefit of the band. Nieces and nephews are not entitled to inherit an interest in reserve land on intestacy. Arguably, the purpose of s. 48(8) of the Act is to limit the devise of an interest in reserve land. However the effect is to deprive the nieces and nephews of an intestate aboriginal an interest in reserve land. This prohibition is, moreover, unneces- sary, because s. 50(1) of the Act bars non-band members from acquiring possession or occupation rights to reserve land. Simply put, s. 48(8) denies the proceeds of a sale of the land under s. 50(2), or compensation for perma- nent improvements to the land under s. 50(3), to nieces and nephews of a deceased aboriginal who are not band members. Even more troubling, nieces and nephews of deceased aboriginals who are band members lose the pos- session and occupation rights they would generally enjoy under the equiv- alent provincial legislation. Why the differential treatment you ask? Arguably, the intention of these provisions, (similar to other aspects of the Act) is to protect reserve land and to recognize the unique relation- ship between the Crown and Canada's aboriginal peoples. A more critical review, however, reveals that the provisions of the Act governing aboriginal succession and inheritance law are, at best, outdated and at worst, a remnant of Federal paternalism. A strong case can be advanced supporting the conten- tion that aspects of the Act relating to aboriginal inheritance law violate the right to equality before and under the law contained in section 15 of the Charter of Rights and Freedoms, amounting to substantive discrimina- tion. Notably, such a violation would be considered legally unjustifiable and inconsistent with the social values to which Canada aspires. P.S.: The provisions discussed in this arti- cle are ripe for a Charter challenge: this issue has not been dealt with by the Supreme Court of Canada since Canard v. Canada (Attorney General), a case which took place in relation to the Bill of Rights in 1975. Given Canada's aging population and the resulting transfer of wealth currently taking place in Canada, (in aborigi- nal and non-aboriginal communities alike), it seems likely this remnant of inheritance law past will come under scrutiny sooner rather than later. This topic is more fully addressed in a two-part article published by the author, The Honour of the Crown and Indian Succession and Inheritance Law in Canada: Fiduciary Protection or Creeping Re-Appropriation of Aboriginal Property, A.Q., Volume 45, No. 2.; and Discrimination by Fiduciary Protec- tion: Continuing Federal Paternalism in Aboriginal Succession and Inheritance Law, A.Q., Volume 46, No. 1. 1. R.S.C. 1985, c. I-5. 2. C.R.C. 1978, c. 954. 3. Supra note 3. 4. The Ministry has undergone two name changes in recent years. The Minister was formerly referred to as the Minister of Indi- an Affairs and Northern Development, and subsequently, the Minister of Aboriginal Affairs and Northern Development. 5. Ibid at s. 4(3). 6. Ibid at 43(a). 7. Ibid at 43(e). 8. Ibid at 44(1) and 44(2). 9. Ibid at 45(2). 10. Ibid at 46(1) 11. The Regulations, supra note 4 at s. 11(1). 12. Ibid at s. 9.

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