Supreme Court of Canada –  1 S.C.R. 170
This ruling followed Lavell and Drybones regarding discrimination caused by the Indian Act. It incorporates the reasoning in Lavell that s. 91(24) of the Constitution Act, 1867, which grants the federal government jurisdiction over Indians, allows differential treatment between them and the rest of the population and permits the government to legislate regarding them in the sphere of general provincial jurisdiction.
In this case, the Court found that the application of the Indian Act falls under the discretionary power of the minister and allows an interpretation that does not distinguish between Indians and other Canadians. It confirmed the Federal Court’s jurisdiction to review such decisions and to apply the relevant provisions.
Was Canard’s estate subject to the provisions of the Indian Act and are ss. 42, 43 and 44 of the Act contrary to the Bill of Rights?
Canard’s estate is subject to the Indian Act, which is constitutionally valid and does not violate the Bill of Rights (5 against 2)
Between: Canada and William Barber Rees
And: Flora Canard (widow of Alexander Canard)
Interveners: National Indian Brotherhood and Manitoba Indian Brotherhood
During the summers of 1967 and 1968, Alexander Canard, a member of the Sagkeeng Nation, worked for a number of weeks on a farm at St. Andrews, Manitoba. During these weeks, Mr. Canard and his family would reside in a “bunk-house” situated on the farm. When the working period was over, they would return to live on the reserve of Fort Alexander No. 3 in Manitoba where he and his family had lived since 1964.
In 1969, the Canard family moved to the farm again as Mr. Canard had started working on July 4. Alexander Canard died (intestate) two days later in a traffic accident. In December, William Barber, superintendent of the Clandeboye Fisher River Indian District, in which the deceased was residing, was appointed administrator of Canard’s estate in accordance with ss. 42 and 43 of the Indian Act, which stipulated that the administrator of the estate of a deceased Indian is named by the Minister of Indian Affairs and Northern Development.
On March 1st, 1970, Barber initiated proceedings against three individuals who had caused the accident which killed Canard. On March 18, the Surrogate Court of the Eastern Judicial District of Manitoba named the deceased’s widow, Flora Canard, administrator of Canard’s estate. As his administrator, she then sued the same three persons and a fourth one for causing the accident on July 6.
Mrs. Canard then applied to the Manitoba Queen’s Bench Court for a declaratory judgement stating that the Indian Act does not govern the administration of the estate of Indians who do not live on a reserve and that s. 42, 43 and 44 are null and void because they are contrary to the Bill of Rights and the principles of natural justice.
Following Mrs. Canard’s action for a declaratory judgement, Barber counterclaimed to oppose the appointment of Mrs. Canard as administrator of the estate and to seek that it be declared null and void.
Canada: The provisions of the Indian Act did not violate the Bill of Rights because their purpose is to protect Indians.
Canard: The provisions of the Indian Act violated s.1 of the Canadian Bill of Rights since they denied her the right to administer her late husband’s estate based on her race. She was therefore not being treated equally before the law because non-Indians could be named administrator of an estate and she could not.
Manitoba Queen’s Bench (1972): At trial, the judge decided that Canard was not an ordinary resident of the reserve at the moment of his death. He therefore concluded that Mrs. Canard had a right to a declaration that ss. 42 to 44 did not apply to the administration of Canard’s estate and declared the appointment of William Barber as administrator invalid.
Manitoba Court of Appeal (1972): On appeal, in a unanimous judgement written by J. Dickson (later Chief Justice of the Supreme Court of Canada), the Court of Appeal determined that “ordinary resident” should refer to a high degree of continuity. Hence, he decided that Canard’s ordinary residence was on the reserve, despite temporary absences. As for the constitutional validity of ss. 42 and 43 of the Indian Act, the Court argued that even if the provisions affected property and civil rights (under provincial jurisdiction under s. 92(13) of the British North America Act), Parliament could enact laws within its jurisdiction over Indians which could have some secondary effects on matters assigned to the provinces. This meant that ss. 42, 43 and 44 of the Indian Act were not ultra vires. However, he concluded that the contentious sections of the Indian Act created a situation of inequality before the law, contrary to the Canadian Bill of Rights.
Martland, Judson, Ritchie, Pigeon, Beetz
The deceased was in fact an “ordinary resident” of the reserve at the time of his death.
The relevant section of the Indian Act is constitutionally valid. Section 91(24) of the British North America Act creates a racial distinction for a group and usurps legislative powers that would normally be under provincial jurisdiction in order to give that group special treatment.
Sections 42, 43 and 44 of the Indian Act are not incompatible with the Canadian Bill of Rights. It is not contrary to the Canadian Bill of Rights in that the creation of distinctive forums does not automatically imply discrimination or equate with unequal treatment. In fact, if the creation of a special status for Indians were to be deemed discriminatory, then Parliament would never be able to legislate according to s. 91 (24) of the British North America Act, 1867, which granted jurisdiction over Indians and their lands.
The Indian Act “empowers the Minister to appoint anyone, including the respondent. In other words, if the respondent has been the victim of racial discrimination, such discrimination was administrative in nature; it does not flow from the Indian Act. The Indian Act in this respect is capable of being construed and applied so as to provide for Indians a treatment similar to that reserved for their fellow Canadians” (p. 210).
The appointment of Canard as administrator by the Surrogate Court of the Eastern Judicial District of Manitoba is invalid. The Court had no jurisdiction to do so, since that power resides only with the Minister. Furthermore, the Courts of Manitoba cannot “hear an appeal from the Minister’s decision or otherwise review it” (p. 216).
Previously, the administration of Indian estates was understood as a task to be undertaken by the federal government. The usual practice involved the Minister’s appointment of an Indian Affairs employee to administer First Nations estates.
As a result of the Canard decision, the Department now has a Decedent Estate Program whose objective is to give more control to First Nations members over the administration and management of estates belonging to individuals ordinarily residing on a reserve or Crown lands. The Department only assigns an administrator as a last resort in cases where nobody rightfully allowed to become administrator of the estate comes forward, or the deceased dies intestate with no surviving relatives (Indian and Northern Affairs Canada, 2008). If the deceased was not residing on a reserve or Crown lands, the estate is managed according to the laws of the province normally applicable to a non-Indian in the same situation. These are usually the laws of the province in which the deceased resided (Evans and Willis, 2007).
The policies and procedures concerning the administration of an Aboriginal person’s estate vary depending on the situation: namely, whether there is a valid will or not. When there is no nomination of an executor, every beneficiary is eligible for the task. After receiving notification from Indian and Northern Affairs Canada, the beneficiary must apply to the Department if he or she wishes to be named. The Department then selects the applicant with the largest interest in the estate to administer it. When there is no will, the same process is followed. After the appointment of a non-departmental administrator, Indian and Northern Affairs Canada retains the role of resolving issues during the process of administering the estate (Evans and Willis, 2007).
The Queen v. Drybones,  S.C.R. 282
Attorney General of Canada v. Lavell,  S.C.R. 1349
Affaires indiennes et du nord canada. 2008. Programme des successions des personnes décédées. Online. http://www.ainc-inac.gc.ca/br/es/dep/index-fra.asp Accessed July 14, 2009
Evans Sherry et Susan A. Willis. 2007. Aboriginals Estate: Policies and Procedure of INAC, B.C. Region. Online. http://www.cle.bc.ca/Practice%20Points/ABOR/Aboriginal%20estates–Policies %20and%20procedures%20of%20INAC–ready%20for%20PDF.pdf. Accessed July 14, 2009.