NATIVE PEOPLES |
Earl v. Canada (Minister of Indian and Northern Affairs)
T-438-03
2004 FC 897, Martineau J.
23/6/04
14 pp.
Appeal under Indian Act, s. 47 from Minister of Indian and Northern Affairs' decision not to void appellants' father's will --Father's estate consisting of $405,000 in land on Okanagan Reserve--At time of death, father living in nursing home in Vernon, B.C.--Prior to that, father spent nine years in nursing home situated on reserve not belonging to Okanagan Indian Band, of which he was member--Father admitted to nursing home due to illness and later deemed mentally incompetent-- In will, father did not make any provision for daughters-- Pursuant to s. 42(1), all jurisdiction, authority in relation to matters and causes testamentary, with respect to deceased Indians, vested exclusively in Minister--However, unless Minister otherwise orders, for Minister to have jurisdiction in relation to property of deceased or mentally incompetent Indian, Indian must ordinarily reside on reserve--Will approved by Minister's delegate on March 19, 2001-- Appellants, two of excluded daughters, sought to have father's will declared void pursuant to s. 46--Alternatively, sought transfer of jurisdiction in respect of will to British Columbia Supreme Court pursuant to s. 44(2)--Application rejected in February, 2003, hence this appeal--Standard of review reasonableness simpliciter except for determination whether Minister had jurisdiction or whether breach of natural justice where standard is correctness--At hearing, appellants indica-ted no longer wished to rely on invalidity based on s. 46(1)(a),(b),(c),(f), i.e. testamentary capacity, undue influence, hardship, public interest--Appellants submitted: (1) Minister had no jurisdiction to approve will because father not ordinarily resident of Okanagan reserve at time of death; (2) Minister did not have before him original document; (3) natural justice or procedural fairness denied--Minister had evidence to support fact father ordinarily resident on reserve in form of Report of Death--"Ordinarily resident" determined by Supreme Court of Canada to mean residence in customary mode of life of person, as opposed to special, occasional, casual residence (Attorney General of Canada et al. v. Canard, [1976] 1 S.C.R. 170)--Not necessary for father to reside on any particular reserve--Laws governing descent of property should not vary when individual required to live off reserve due to illness--Residence in medical facility not customary mode of life--Moreover, Indian and Northern Affairs Canada, not Public Trustee, administered father's affairs after father declared mentally incompetent--Claim that original will not before Minister not supported by evidence-- Appellants arguing that failure of Minister to hear from heirs of estate constitutes denial of natural justice or procedural fairness--This ground not properly before Court because appellants did not rely on those grounds before Minister--In any event, ground must fail--Appellants could have asked Minister to re-open case and review decision on any of above grounds--In limiting representations before Minister to grounds enumerated at s. 46, appellants abandoned any claim that condition prescribed at s. 45(2) not met--Since appellants abandoned grounds of testamentary capacity, intention and undue influence, no need for Court to refer questions to superior court (in this case Supreme Court of British Columbia), which is recognized by Parliament as having ampler, more effective machinery to investigate circumstances related to testamentary capacity or duress--Appeal dismissed --Indian Act, R.S.C., 1985, c. I-5, ss. 42(1), 44, (2), 45(2), 46, 47 (as am. by R.S.C., 1985 (2nd Supp.), c. 10, ss. 64, 65).