This is an interesting but complex area of the law. The Indian Act sets out a land holding scheme that is meant to preserve the Indian band’s ancestral land base in a communal sense. In line with the purpose of the Indian Act to protect the ancestral land base of Indian bands, only band members can acquire Certificates of Possession in reserve land. Certificates of Possession denote a transfer in rights to land on a reserve from the band as a “commune” to the individual band member. A Certificate of Possession can be leased or transferred, however the Certificate cannot be transferred to non-band members.
Therefore, an Indian band-member cannot bequeath his or her interest in real property on a reserve to anyone who is not a band member, not even his/her spouse. This is because the interest that an Indian band member has in real property on a reserve is substantively different from the sort of interest contained in traditional, English or French Civil Law notions of property ownership, occupation and possession. Under s. 50(1) of the Indian Act, a person who is not a band member cannot obtain a right to occupy or possess any of the band’s reserve land. Thus, possessory rights in reserve land cannot be bequeathed to persons who are not band members.
Indians do possess general testamentary freedom, but cases support the fact that it is to be exercised in ways not contradictory to the Indian Act. Since the Indian Act restricts the possession of property to band members, it cannot be transferred to non-band members. The Court-supported notion that lands on reserve are held in a communal fashion, with the power to allocate going to the band council and required to be vetted by the Minster, goes a long way in determining how the Courts are likely to deal with Wills drawn up by band members and purporting to devise land to non-band members spouses, which unfortunately does still happen.
Wills will be subject to the possessory provisions of the Indian Act even though this may be to the detriment of individual band members and their non-band member spouses. It has long been recognized that reserve lands are communal and that property cannot be alienated for the benefit of individual members of the reserve band, whether that benefit is deriving profit from a sale or seeing that a testator’s last wishes with respect to property are carried out.
Vanessa DeDominicis practices in the area of Wills and Estates. Please contact Vanessa on 250-869-1140 or [email protected] for more information.
