A testator attempts to return ownership of their family farm to the Mi'kmaq by including a special provision in their Last Will & Testament.
JP Holecka on Unsplash
Hypothetical Facts #
Suppose that a testator (the legal term for a person making a will, which is also called a “testamentary bequest”) owns a tract of forested land in New Brunswick that has been in their family for several generations. The testator has a daughter who has always wanted to use the land for sustainable forestry and the testator has told several of their friends that they are keen to support this dream. But having recently attended a public lecture about the Land Back movement–an Indigenous-led movement advocating for the return of Indigenous lands to Indigenous peoples–and having followed the progress of the Wolastoqey and Mi’gmawe’l Tplu’taqnn Inc. claims for recognition and affirmation of Aboriginal Title through the news, the testator has developed an avid interest–if somewhat limited understanding–around land justice in this context. The testator asks their lawyer to include the following provision in their will:
When I die, the forest land should go to my daughter. When she can no longer make use of the land, it should go to Mi’gmawe’l Tplu’taqnn Inc. (MTI), which non-profit organization should be prohibited from transferring the land to any other party for a period of 50 years, after which said organization may only transfer it to another Mi’kmaq-led entity for no more than an amount of $500,000. It is my hope that by this Last Will & Testament the Mi’kmaq might regain control of the land and recognition of their Aboriginal Title over some small tract of their traditional territory.
The Problem #
When the testator passes away, what interests in the forest land would likely be created through this provision in the will? Be sure to identify and address any problems with interpreting the will. Do you think the testator’s aim to return “control” and “recognize Aboriginal Title” via a testamentary bequest is consistent with the concept of Aboriginal Title as you currently understand it? Is it consistent with the aims of the Land Back movement as described by the Yellowhead Institute?
Readings for this Week
Choose one of the reading materials from the list below--ordered alphabetically--to start analyzing this week's problem. At the end of your reading path you should have covered each of the materials on the list.
- Basic Estates and Future Interests: Introduction to the basic common law estates in land and the concept of future interests.
- Blackburn v McCallum, 1903 CanLII 68 (SCC), [1903] 33 SCR 65: Donald Chisholm divided his land and left it to his sons as two separate estates in fee simple. He attached conditions to the transfer on the ability of his sons to sell or mortgage the lands for 25 years.
- Conveyancing Act, RSNS 1989, c 97: A statue establishing parameters for the transfer of land title in Nova Scotia.
- Land Back - A Yellowhead Institute Red Paper: A research paper on the legal foundations of the Land Back movement in Canada, published by the Yellowhead Institute.
- Re Walker, (1925), 56 OLR 517: The testator left his property to his spouse using language that was ambiguous as to the type of estate in land he intended to create. The interpretation of the testator's intention determines who can claim under the will.: Interpretation of a will addressing the type of common law estate conveyed.
- Wills Act, RSNS 1989, c 505: A statue addressing the transfer of land title by bequest in Nova Scotia.