Global Gaming Exposition - Las Vegas
September 17, 2003

First Nations Gaming in Canada
by Michael D. Lipton, Q.C.

• Commercial gaming managed and operated by Canada’s Aboriginal Peoples, the First Nations, is in its infancy.
  
• Currently, the various First Nations operate a number of types of gaming activities, both for charitable benefit and for commercial ends.
  
• Internet gaming activities of Mohawks of Kahnawake in the Province of Quebec will be discussed (or has been discussed) in the “Internet Gaming” portion of my address. Focus here will be on “bricks-and-mortar” gaming establishments managed and operated by First Nations.

Jurisdiction

• Amendments to the Canadian Criminal Code (the “Code”) enacted in 1969 and 1985. The 1969 amendments created first exemptions making commercial gaming legal in Canada – first small-scale gambling on behalf of charities, then government-run lotteries. Driven by need of governments to raise funds for 1976 Montreal Summer Olympics.
  
• After 1969, provincial governments lobbied for greater access to gaming revenues. In 1985, Code was amended to make the provincial governments the sole providers and regulators of legal gaming in Canada. Olympic influence once again key – provinces agreed to contribute $100 million towards the 1988 Calgary Winter Olympics in Calgary.
  
• 1985 amendments represent a missed opportunity for the First Nations. Had they lobbied actively at that time, as provinces did, the federal government might well have been open to the inclusion of provisions for gaming on reserves, or for the creation of a national First Nations gaming regulatory body.
  
• Currently, First Nations require provincial approval before they can conduct gaming on their reserves.
  
• This is a contentious and emotional issue to many First Nations leaders. They see the reserves as sovereign nations not subject to provincial jurisdictions, and believe that forcing them to comply with provincial gaming regulations violates that sovereignty.
  
• Courts have explicitly rejected First Nations’ claims to an inherent right to conduct commercial gaming activities. Section 35(1) of Canada’s Constitution Act, 1982 recognizes and affirms aboriginal rights, but only certain activities fall within the ambit of being an “aboriginal right.” An activity is not an “aboriginal right” unless it is an element of a tradition, custom or practice integral to the distinctive culture of the First Nation claiming the right. This is determined by reference to the question of whether the activity was a “defining feature” of the culture of the First Nation in question prior to contact with Europeans.
  
• Pamajewon v. The Queen, 1996 case before the Supreme Court of Canada held that commercial gaming, and the regulation of same, was not an integral part of the cultures of two Ontario First Nations (the Shawanaga and the Eagle Lake) at the time of European contact. Gaming bylaws enacted by those First Nations therefore invalid, and criminal convictions obtained against members of the bands for illegal gaming were upheld.
  
• To date no court has found there to be evidence to support the notion that commercial gaming or its regulation was an integral part of the culture of any First Nation prior to contact with Europeans. Absent such a finding, any gaming activity or regulation undertaken by a First Nation, without provincial approval, is illegal.

Provincially-Sanctioned First Nations Gaming

Casinos

• Three provinces (Ontario, Saskatchewan & British Columbia) host First Nations casinos
  
• Proposals for creation of such casinos pending in two other provinces (Alberta and Manitoba).
  
• Nova Scotia – 50% of the revenues from the Sydney Casino are divided among those First Nations who have signed gaming agreements with the province.

Charitable Gaming

• Ontario, Manitoba, New Brunswick & Nova Scotia allow First Nations that enter into agreements with the province to issue their own licences for charitable gaming events.
• In all other provinces, First Nations treated like any other residents of the province –participate in charitable gaming by complying with the existing charitable gaming model.

Video Lottery Terminals ("VLTs")

• No legal, provincially-sanctioned VLTs anywhere in Ontario or British Columbia.
  
• First Nations reserves located in Alberta, Prince Edward Island and Newfoundland do not have VLTs, though government-licensed casinos in those provinces do have them.
  
• In the other five provinces – Quebec, Manitoba, New Brunswick, Nova Scotia and Saskatchewan) – First Nations may negotiate agreements with the province to host on-reserve VLTs, outside the casino environment. Such agreements have been negotiated, and VLTs installed, on reserves in Quebec, Manitoba, New Brunswick and Nova Scotia.

Conclusion

• Provincial governments taking a gradual approach to the creation of First Nations casinos
• Sensitive issues remain to be decided, most notably distribution of revenue and how best to structure operations for the benefit of the First Nations peoples
  
• Gradual approach may be contrasted with the situation on the reserve of the Mohawks of Kahnawake, where the absence of clear direction concerning the place of on-line gaming in the Code has led to a haphazard arrangement.
  
• Possibility that out of this haphazard arrangement may come some good – If Mohawks of Kahnawake continue to act as de facto regulators of Internet gaming in a manner that is to their credit, they may well create a beneficial precedent for First Nations gaming regulation, in the event that the Code is amended in the future to allow for direct regulation of gaming by First Nations.
  

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