The Supreme Court of British Columbia made an order declaring the plaintiff to be the “spouse” of the Deceased, a member of the Tla’amin First Nation, and that she inherited the entirety of the Deceased’s estate pursuant to the provincial Estate Administration Act. The Court rejected the argument of the defendant that the Hegus (the ceremonial law of the Tla’amin First Nation) governed these issues.

Thomas August, an elder of the Tla’min First Nation, died intestate in Vancouver in March 2012. He had lived off-reserve, in the City of Vancouver, for approximately 25 years. There was no dispute that the provisions of the Indian Act concerning the estates of First Nations persons were therefore not applicable. The issues were whether the Estate Administration Act (EAA)applied to the estate, and whether the plaintiff qualified as the deceased’s “spouse”. Pursuant to the intestacy rules in the EAA, the Deceased’s estate would devolve in its entirety to the plaintiff if she was his spouse.

The defendant Treakle was the sister of the Deceased. She disputed both that the plaintiff was her brother’s spouse, and also that the EAA governed the devolution of the estate. She argued that the Hegus, the sovereign law of the Tla’amin people, governed the distribution of her brother’s estate. The defendant submitted that the plaintiff did not qualify as the Deceased’s spouse under the Hegus as certain conditions, such as a customary ceremony, had not been satisfied. The defendant made further arguments that the EAA had no force or effect on “unceded Indian lands”, citing the Royal Proclamation of 1763 and section 35 of the Constitution Act, 1982. (She also made disparaging remarks that the plaintiff was “a corporate Indian trying to deceive this Court”).

Ballance J. held that the EAA applied to the distribution of the Deceased’s estate. The defendant failed to provide a cogent factual basis or persuasive legal authority in support of the argument that the Hegus applied. There was no reliable evidence put forward on this point. She concluded:

On the evidence and argument placed before me, there is no sound factual or legal foundation to find that the Deceased’s estate passes in accordance with any custom, convention, or law contained in the Hegus, or is governed by any statute other than the EAA. Consequently, I conclude that the Deceased’s estate devolves pursuant to the provisions of the EAA.

The Court subsequently determined that the plaintiff qualified as the Deceased’s “spouse” and, in consequence, the entirety of the estate devolved to her.
  
http://courts.gov.bc.ca/jdb-txt/SC/14/21/2014BCSC2127cor1.htm

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law