The Federal Court dismissed an appeal brought under s. 47 of the Indian Act of a decision by a delegate of the Minister of Indian and Northern Affairs to remove Mr. Longboat as administrator of the estate of George Bomberry, Deceased. The Federal Court of Appeal affirmed this decision in October 2014.

The Deceased was a status Indian who died intestate in 1995. The main assets of his estate were undivided parcels of land within the Six Nations Indian Reserve in Ontario. The Indian Act governed the administration and distribution of the Deceased’s estate, and the appellant Longboat was appointed as the estate administrator. Sixteen years later, the estate remained undistributed. Mr. Longboat submitted that the delay was caused by efforts to obtain a consensus amongst the heirs of the estate as to how the lands should be partitioned. He wanted to avoid a “fractionation” of the lands, and avoid family tension.

In July 2011, the delegate of the Minister made an order pursuant to s. 43 of the Indian Act to remove Mr. Longboat as the administrator of the estate.

The chambers judge held that the decision of the Minister’s delegate must be reviewed on the standard of reasonableness. The Minister has substantial discretionary jurisdiction over the estates of Indians. The authority to remove administrators under section 43 is among the broad discretionary authority conferred on the Minister. The chambers judge also commented on the applicability of the general law of estates and trusts to the estates of deceased Indians:

While administration of a private estate is a matter that normally falls within provincial jurisdiction, the Supreme Court has held that the testamentary provisions of the Act, including sections 42 and 43, are constitutionally valid and oust the jurisdiction of provincial courts. This court has recognized that this jurisdiction in Indian testamentary matters goes above and beyond the jurisdiction of historic probate courts of common law. Consequently, I am not persuaded that legal principles set out in the authorities relied upon by the parties … with respect to the high threshold required for the removal of trustees in a private law context are necessarily applicable to the case at bar. [citations removed]

The chambers judge also noted that the Indian Estates Regulations provides that the administrator is responsible to the Minister, and is obliged to carry out any order or direction given by the Minister. If the heirs do not agree, the administrator is required to obtain the approval of the Minister.

The removal of the appellant Longboat came after six written requests from the Minister, and three discussions, concerning the land transfer. The appellant did not follow the Minister’s requests. Under such circumstances, the removal of the appellant as administrator of the Deceased’s estate was reasonable.

The chambers judge also dismissed the appellant’s arguments about procedural fairness. The appellant was well aware of the factors relied upon by the Minister, such as complaints by the heirs. The Minister was not required to provide the appellant with an opportunity to address the complaints.

The Federal Court of Appeal dismissed a further appeal by the appellant Longboat. The chambers judge carefully assessed the facts of the case, including the length of the administration. The appellant’s goal to reach an agreement with the heirs was a noble one, but his main duty was to proceed to a distribution of the estate. It was reasonable for the Minister to conclude that the appellant was not discharging his duties.

http://www.canlii.org/en/ca/fct/doc/2013/2013fc1168/2013fc1168.html

http://www.canlii.org/en/ca/fca/doc/2014/2014fca223/2014fca223.html

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law