“A Precarious Chancy Situation”: Aboriginal Gaming Rights in Canada
CARISSIMA MATHEN*
(AS THIS ARTICLE IS NOT YET PUBLISHED PLEASE DO NOT CITE
WITHOUT AUTHOR PERMISSION)
I: Introduction
…[I]t was dark in the underworld. The people and the animals that go about by day
wanted more light but the night animals—the Bear, the Panther, and the Owl—wanted
darkness. They disputed for a long time and at last agreed to play the moccasin game to
decide the matter. If the day animals were to win, there would be light but if the night
animals were triumphant, it would always be dark. And so began the battle between the
nocturnal and the diurnal sides. In the course of the game they invented gambling songs
which are sung to this day. As they played, some of their genii (familiar spirits) joined in
the contest. The luck changed back and forth between the two factions; the moon-loving
players took the advantage and then those who longed for eternal day got the upper
hand. After a long period of playing, singing and wrestling with luck, the players grew
tired and indifferent to the game. Suddenly it was morning and the game was undecided
so everyone packed up his counters and his blanket and fled home.
That’s why the original alternation of day and night has never been changed.1
Consider the creation story. It attempts to situate human beings in a particular
place and time, to explain who we are and how we came to be here. Though creation
stories often are associated with spiritually significant matters, they also can be political
and prosaic, reflecting social understandings and preoccupations. Nation states, for
example, have creation stories, and Canada is no exception. In fact, there are several
such stories about Canada: discovery; the founding nations; continental distinctiveness;
*
Faculty of Law (Common Law Section), University of Ottawa. This article was supported by the New
Brunswick Heritage Fund. With sincere thanks to Matt Estabrooks, Ilana Schrager, Joel Payne, James
Morrison and Matt Rowe for stalwart research assistance. I am grateful to Larry Chartrand for his careful
review of an earlier draft, and to Michael Plaxton and anonymous reviewers for helpful suggestions. This
article initially grew out of numerous conversations with Jason J. Kee, whose support and encouragement
inspire me in all things.
1
Margo Little, The Moral Dilemma of High Stakes Gambling in Native Communities (Master’s Thesis:
Laurentian University, 1997) at 24 [unpublished], citing Stewart Culin, Games of the North American
Indians (New York: Dover Publications Inc., 1975) at 348-49.
1
international influence; demographic diversity; and, finally, constitutional patriation, 2
which recognizes the essential role played by Aboriginal peoples. 3
There have been numerous cases involving Aboriginal rights. Most of these cases
involve particular kinds of conflicts: over land4, over waterways,5 over forests6 or over
fish.7 The creation story recounted above is about culture, about trying to make sense of
the world. To do that, it uses a particular human endeavour: a game. Building on the
striking image in that story, this article situates Aboriginal gaming practices within the
particular “creation story” of patriation.
Modern-day gaming is marked by highly intermingled social and commercial
factors. Attempts to regulate it cannot be justified by arguments about scarcity of
resources. Instead, the power to regulate rests on assumptions about the power of the
Canadian state to set acceptable boundaries for social interaction for all who are subject
to its laws. In Part II, I discuss the cultural significance of Aboriginal gaming, exploring
a variety of historical First Nations gaming practices. Next, because gaming historically
has been a matter for the criminal law, Part III examines the history of the gaming
provisions in the Criminal Code and the factors precipitating the move from prohibition
Constiution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [“section 35”;
Constitution Act, 1982].
3
The full potential of that recognition has yet to be realized. See, e.g., Larry Chartrand, “The Story in
Aboriginal Law and Aboriginal Law in the Story: A Métis Professor’s Journey” (2010) 50 Sup. Ct. l. Rev.
89; Yale Belanger, ed., Aboriginal Self-Government in Canada, 3d ed. (Saskatoon: Purich Publishing,
2008); Gordon Christie, “Law, Theory and Aboriginal Peoples” (2003) 2 Indigenous Law J. 67; Michael
Asch & Patrick Macklem, “Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow”
(1991) 29 Alta. L. Rev. 498.
4
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511.
5
R. v. Nikal, [1996] 1 S.C.R. 1013 [“Nikal”].
6
R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220.
7
Nikal, supra, note 3.
2
2
to regulation. After considering, in Part IV, some modern commercial Aboriginal
gaming ventures, Part V offers an analysis of unapproved gaming operations utilizing the
current framework of section 35 with some attention to the interrelation between
Aboriginal rights and criminal law. I conclude that the legal responses to Aboriginal
assertions of gaming-specific rights reflect the powerful mechanisms by which the
Canadian state continues to control Aboriginal peoples, communities and identity.
Before proceeding, a caution is warranted. The very legitimacy of the current
Aboriginal rights framework has been subject to trenchant critique. Some Aboriginal
scholars label the Canadian legal system, including section 35, as “a source of injustice”.8
While this article investigates avenues of redress using Canadian legal principles, I
recognize the inevitable challenges and trade-offs that Aboriginal peoples confront when
they decide to pursue rights claims.
II: Gaming in Aboriginal Cultures: History and Significance
a) Traditional Practices
Gaming is a near universal feature of human cultures. Ancient murals dating back
5,000 years depict it among the Egyptians; the Greeks and Romans played a version of
Chartrand, supra, note Error! Bookmark not defined. at 93-94 and at 111: “The problem with
Aboriginal law as it is currently framed by the Supreme Court of Canada is the insidious way the concept
of stare decisis perpetuates a colonial relationship…The racist language may be left out in subsequent
cases, blinding us to its continued presence as unwritten principles, but their racist power continues beneath
the words of contemporary judgments.”
8
3
roulette using spinning chariot wheels;9 and ancient Israelites played a form of craps.10 It
is, therefore, unsurprising that gaming practices of equivalent provenance are found in
many Aboriginal communities and have been described as integral to them.
In the late 19th century, Stewart Culin completed what remains the most
comprehensive study of North American Aboriginal gaming and wagering practices.
Originally published in 1907,11 his research revealed that of some 250 tribes fully 95%
practiced some form of gaming.12 Culin noted that the gaming practices were indigenous
– “the direct and natural outgrowth of aboriginal institutions in America”.13 The fact that
different tribes played the same types of games suggested a common ancestry; and the
“wide distribution and range of variations” was a reliable indicator of “high antiquity”.14
Thus, gaming was a part of most Aboriginal societies long before European contact.15
Culin classified Aboriginal “games of chance” 16 into dice and guessing games.
Dice games17 were played silently, with two to four players; spectators could bet on the
9
Yale D. Belanger, Gambling with the Future: The Evolution of Aboriginal Gaming in Canada (Saskatoon:
Purich Publishing Ltd., 2006) at 25.
10
Kathryn Gabriel, Gambler Way: Indian Gaming in Mythology, History and Archaeology in North
America (Boulder, Colo.: Johnson Books, 1996) at 10.
11
Stewart Culin, Games of the North American Indians (New York: Dover Publications Inc., 1975).
12
R. v. Nelson (1997), [1998] 2 C.N.L.R. 137 (Man. Prov. Ct.) at para. 319. [“Nelson”].
13
Games of the North American Indians, supra, note 11 at 32.
14
Ibid., at 31, 48.
15
Gambling with the Future, supra, note 9 at 27-28. Belanger states that Culin “confirmed the pre-contact
existence of First Nations games in modern-day Saskatchewan, Manitoba, British Columbia, Quebec, New
Brunswick and Nova Scotia.”
16
In contrast, Culin classified games such as archery and lacrosse as “games of dexterity.” However, these
games (and the wagering practices that attended them) should not be overlooked in considering modern
claims to aboriginal gaming rights. A good example is the Mohawks of Kahnawá:ke in Quebec. See
Morden C. Lazarus, “The Mohawks of Kahnawá:ke and the Case for an Aboriginal Right to Gaming under
the Canada Constitution Act, 1982” (2006) 10 Gaming L. Rev. 369. [“Lazarus”].Lazarus argues that the
Mohawks have an aboriginal right to regulate online gaming, which is mainly supported by customs
surrounding lacrosse games. According to Lazarus, lacrosse matches “involved extensive regulation related
to codes of conduct, scheduling rules and regulations, and methods of enforcing outcomes.” For example,
4
outcome.18 Such games were observed among 130 tribes belonging to 30 linguistic
groups, from the Maliseet of New Brunswick to the Haida of British Columbia.19 Though
played by men and women, “[i]n their ceremonial forms these [were] distinctively men’s
games.”20
Guessing games, which Culin further divided into four groups, were not played as
widely. In two groupings, a player would distribute a number of sticks between his
hands, the object being to guess which hand held an occasionally marked stick. In a
third, a player would guess the relative position of sticks that had been arranged by the
opponent while hidden from view.21 A fourth known as the “moccasin game” was a kind
of shell game involving hiding small objects.22
“when played as a memorial to the dead” there were rules to ensure that “the dead would be at peace and
not harm the living.” Also, there was a rule that “wagered items were [to be] guarded for the duration of the
match by men appointed as stakeholders, generally trusted tribal elders.” While the court in Nelson would
probably have rejected Lazarus’s thesis—lacrosse being beyond what is normally considered as a gambling
game—future claims of aboriginal gaming rights may well involve a consideration of sports (or “games of
dexterity”) as well as games of chance. See: Morden C. Lazarus, “The Mohawks of Kahnawá:ke and the
Case for an Aboriginal Right to Gaming under the Canada Constitution Act, 1982” (2006) 10 Gaming L.
Rev. 369. [“Lazarus”].
17
Games of the North American Indians, supra, note 11 at 44. Dice games are described therein as ones in
which “the hazard depends upon the random fall of certain implements.”
18
Ibid., at 44-45. One such Ojibway game, Pagessan, has been described as follows:
“[It] involved a large wooden bowl into which a certain number of pieces - plum stones, pieces of
kettle or bone, for example - were placed. These pieces had one side stained black and the other
white or some other bright colour. The pieces were thrown up into the air by either moving the
bowl or striking it with a stick. There were many complexities in computing the score, but
essentially the player would accumulate points based on how the pieces landed in the bowl. In
some variations of the game, in addition to the coloured discs, there were also pieces carved into
the shapes of people, animals or other familiar objects. These pieces were carved out of bone or
wood or plum stone and had a small foot so they could stand upright. In order to count points
these figures had to land upright when they were tossed into the air.”
Nelson, supra, note 12 at para. 47. Some commentators have likened this kind of game play to poker: see
Little, supra note 1 at 16.
19
Games of the North American Indians, supra, note 11 at 45.
20
Ibid., at 45.
21
Ibid., at 44.
22
Nelson, supra, note 12 at para. 50.
5
Wagering could assume an important role. Among the Iroquois, for example,
games were often “played more for the sake of the wager than for the enjoyment of the
game itself.”23 It is accepted that “gambling, including high stakes gambling, took place
in connection with many [traditional Ojibway] games”.24 This trend was observed by
several early European explorers and missionaries. Nicolas Perrot recorded that “[e]ntire
villages [were] seen gambling away their possessions…on this game, and ruining
themselves”.25 Louis Hennepin, a Récollet missionary, noted that “[t]here are some so
given to this game that they will gamble away even their great coat”.26 The Jesuit
missionary Jérôme Lalemant described an incident in Teanaustayae, a Huron village,
where the village “lost 30 porcelain collars, each of a thousand beads, which are in this
country equal to what you would call in France 50,000 pearls.”27
Occasionally, the object of a wager went beyond material possessions. Among
some tribes of the Wisconsin Menominee the losers became the winners’ slaves.28 Edwin
T. Denig states that among the Assiniboine of North Dakota it was commonplace for a
man to gamble away his wife, and that women frequently were “thrashed by their
husbands” for their own gambling losses.29
These early western accounts of Aboriginal gaming must be approached with
caution. Certainly, the reports do not reveal uniform narratives about the violence and
23
Ibid., at 371.
Nelson, supra, note 12 at para. 125.
25
Games of the North American Indians, supra, note 11 at 107.
26
Ibid., at 108.
27
Ibid., at 110.
28
Little, The Moral Dilemma of High Stakes Gambling, supra, note 1 at 13.
29
Games of the North American Indians, supra, note 11 at 176-177.
24
6
passionate behavior that supposedly attended the games. Gabriel Lalemant, a Jesuit
missionary and nephew of Jérôme, wrote that:
[Players], although passionately fond of gambling, show themselves superior to
our Europeans. They hardly ever evince either joy in winning or sadness in losing,
playing with most remarkable tranquility.30
The Récollet missionary Chrétien Le Clercq, working among the Mi’kmaq on the Gaspé
peninsula in the mid-1600s, described them as “very faithful in paying whatever they
have lost in the game, without quarrelling or expressing the least word of impatience.”31
More extreme early accounts of gaming behavior may be partially explained by
the cultural biases of western observers, whose descriptions often “failed to integrate
Aboriginal beliefs about the minimal importance of personal possessions.”32 In addition,
Belanger contends that early Christian missionaries had a motive to exaggerate negative
behavior associated with Aboriginal gaming:
The contrasting perceptions of First Nations gambling speak less about the reality
of the situation than about European agendas concerning the need to ‘civilize the
savage.’ To confirm the inability of Canada’s Aboriginal population to control
their emotions, and even kill over games of chance, was to impress on one’s
superiors the need to continue with missionary work. It was an effective means of
maintaining one’s employment.33
Belanger argues that the “concept of wagering and loss as it applied to Europeans and the
British did not parallel Aboriginal gaming and wagering practices.”34 Importantly,
gaming losses could be offset by the generosity of the community, so that a person who
had “lost everything” was not left destitute.
Gambling with the Future, supra, note 9 at 32. In the original quote, the term “savages” is used instead
of “players”.
31
C LeClerq, New Relations in Gaspesia, translated by WF Ganong (New York: Greenwood Press, 1868)
at 294-95 cited in Gambling with the Future, ibid at 33.
32
Ibid., at 34.
33
Ibid., at 33-34.
34
Ibid.
30
7
Still, the negative accounts described above cannot simply be discarded. While
acknowledging that early European observers displayed condescension and arrogance
(and, probably, racism), Margo Little argues that “it is evident from their anecdotes that
betting was a traditional pastime and that it did lead to extreme behavior.”35 The
historical record indicates that traditional gaming practices engendered domestic violence
and would sometimes disrupt community life.36 And within Aboriginal communities one
could find divergent opinion about the value of gaming. In R. v. Nelson,37 the trial judge
noted that the Ojibway Elders were said to be opposed to the dice game or “pagessan”
because of the problems it caused for their people. So, while gaming clearly played a part
in the traditional customs of Aboriginal communities, not all members viewed them
favourably.
b) Socio-cultural significance of Aboriginal Gaming
As a socially interactive activity, Aboriginal gaming was often connected to other
important socio-cultural institutions and practices.38
i) Economy
35
Little,The Moral Dilemma of High Stakes Gambling, supra, note Error! Bookmark not defined. at 29.
Ibid., at 32.
37
Nelson, supra, note 12 at para. 138.
38
Ibid., at para. 301The trial judge, Giesbrecht J. criticized placing too much emphasis on these
connections: “In my view, ‘piggybacking’ the incidental practice of gambling on to other significant and
probably integral practices, customs and traditions…is precisely what the Supreme Court [in Van der Peet]
indicated should not be done.”
36
8
Some academics and Aboriginal persons suggest that traditional gaming practices
facilitated the distribution of goods within communities.39 Culin records the following
example from the funeral customs of the Wahpeton and Sisseton of South Dakota:
After the death of a wealthy Indian the near relatives take charge of the effects,
and…they are divided into many small piles, so as to give all the Indians invited
to play an opportunity to win something. One Indian is selected to represent the
ghost, and he plays against all the others, who are not required to stake anything
on the result, but simply invited to take part in the ceremony, which is usually
held in the lodge of the dead person.40
Evidently, the game served to redistribute wealth in the community.
It has been argued that traditional Aboriginal gaming intrinsically is linked to the
value of sharing. Some Iroquois described gaming as “‘circular economics,’ because
goods remain within the community and are shared.”41 It has been noted that in
Aboriginal communities, “not everyone would have equal success in a hunt, but the fact
that everyone could gamble would ensure that all had an equal opportunity to benefit.”42
In modern times, the above-noted value of sharing could produce tension. In
Nelson, an elder testified that “even if they don’t let us play with the VLTs, it wouldn’t
39
See Little, The Moral Dilemma of High Stakes Gambling, supra, note 18at 20; Nelson, supra, note 12 at
paras. 212-21.
40
Games of the North American Indians, supra, note 11 at 183.
41
Nelson, supra, note 12 at para. 212.
42
Ibid., at para. 213. This was the testimony of an anthropologist who testied in Nelson. Ultimately, the
trial judge found the testimony unpersuasive because there was “no evidence to support the notion that
individuals who had been unsuccessful in a hunt would need to gamble in order to share in someone else’s
good fortune” or that “gambling was a part of the obligatory system of sharing in Ojibway
culture.”Giesbrecht J. held that because large amounts of goods were sometimes “lost to other bands, other
villages, and even other tribes” there is “considerable doubt” that “gambling was a desirable way to
redistribute goods within the community.” Ibid., at paras. 220. Despite Giesbrecht J.’s criticism, it is clear
that the re-circulation of goods was an important function of various aboriginal customs, the most famous
being the potlatch tradition. Interestingly, the Europeans who first witnessed the potlatch viewed it as a
kind of gaming practice: see Little, The Moral Dilemma of High Stakes Gambling, supra, note 1 at 10.
9
really matter…because that’s a white man’s game.”43 This testimony reveals a potentially
important difference between traditional and contemporary Aboriginal gaming.
Traditional Aboriginal games constitute “group experiences, focusing upon skills
necessary to sustain the collective interests of a community” while modern enterprises
such as casino gambling are viewed by some as focussed simply on accruing property,
often at others’ expense .44
ii) Politics
Some traditional gaming practices functioned as inter-community peace
mechanisms: “a means of exchanging goods without resorting to raiding and open
warfare.”45 Lacrosse, for example, has been described as “more than a game; it was a
diplomatic tool employed to facilitate cross-cultural interaction, both between First
Nations and with European and British newcomers.”46 Its political dimensions have even
been linked to the Great Law of Peace:
The founding Constitution of the Iroquois Confederacy, the Great Law of Peace
set out the principles by which the nations of the Confederacy would co-exist in
harmony. It emphasized the fundamental primacy of resolving conflicts through
peaceful means. […As a result] the playing of games such as lacrosse emerged as
a means of resolving differences among individuals and groups within the
Iroquois Confederacy.47
43
Ibid., at para. 89.
Gambling with the Future, supra, note 9 at 24, citing Karen Campbell, Community Life and Governance:
Early Experiences of Mnjikaning First Nation with Casino Rama (Masters Thesis: University of Manitoba,
1999) at 14 [unpublished].
45
Gambling with the Future, supra, note 9 at 33.
46
Ibid., at 29.
47
Lazarus, supra, note 16 at 370. Support for these claims comes from a conversation with Mr. Billy Two
Rivers, a Kahnawá:ke Councilor ; Kahnawá:ke, Nov. 30, 2005.
44
10
The sport thus enabled different communities “to interact in a non-hostile environment,
permitting the renewal of social, political, and economic relationships.”48
iii) Spirituality
In his research, Stewart Culin noted the connection between games, and spiritual
beliefs and practices.49 Culin,50 Gabriel51 and Little52 “all identified the interwoven
nature of gambling imagery with creation stories, myths, legends and songs”.53 The
inclusion of gaming imagery indicates the importance of chance to an Aboriginal
understanding of the world. In the Nelson case, witness Michael Angel stated that the
Ojibway lived in a “precarious chancy situation” and that gaming had the pedagogical
function of “teaching…individuals the ability to deal with [that] concept.”54 Belanger
goes further:
From an epistemological perspective, in which constant flux informs gambling
practices, participating in games of chance ‘recreates and relives the
establishment of cosmos and meaning out of chaos.’55
In his discussion of traditional Aboriginal gaming practices Ojibway member
Gilbert Smith has used the word “offering” instead of “bet”.56 This attitude is confirmed
48
Ibid.
Gambling with the Future, supra, note 9 at 26.
50
See Games of the North American Indians, supra, note 11 at 32.
51
See Gambler Way, supra, note 10 c. 1-2, for examples of gaming in the myths of various Canadian First
Nations communities.
52
See Little, The Moral Dilemma of High Stakes Gambling, supra, note 1 at 16.
53
Gambling with the Future, supra, note 9 at 32.
54
Nelson, supra, note 12 at para. 197. At para. 199, Giesbrecht J stated that Angel’s analogy between the
uncertainties of Ojibway life and the risk taking in gambling was “tenuous at best.”
55
Gambling with the Future, supra, note 9 at 32, citing Francis R. Guth, Western Values Comparison in
Gambling: With a Comparison to North American Aboriginal Views (Sault Ste. Marie, ON: Algoma, 1994)
at 5.
56
Nelson, supra, note 12 at para. 82.
49
11
in other accounts. Culin stated that “[i]n general, games appear to be played
ceremonially, as pleasing to the gods, with the object of securing fertility, causing rain,
giving and prolonging life, expelling demons, or curing sickness.”57 Culin also reported
that Aboriginal games “usually [were played] at fixed seasons as the accompaniment of
certain festivals or religious rites.”58 According to Little, the Iroquois believed that the
Creator gave them the “Great Betting Game” as one of the great ceremonies; gaming and
extravagant betting at this ceremony served to honour and entertain the Creator. 59 A link
between Aboriginal gaming and religion is also suggested in view of the fact that
Aboriginal gamers would invoke spirits (genii) and use good luck charms (which had
been revealed to them in dreams) to help them win.60
iv) Medicine
Games occasionally were imbued with healing properties. An oft-cited example
is the Hurons’ elaborate version of the dice game to heal the sick:
On behalf of a sick person, the medicine man—usually upon the dictates of a
dream—organized a preliminary match among the seasoned players to determine
which two men had the best luck…The next morning they collected the lucky
charms revealed in their nocturnal visions. If they dreamt that a certain old man’s
strength and virtue would be efficacious to the game, they carried him to the
gaming place on their shoulders. ... At last the selected players squared off
beneath a canopy in the cabin while assistants stood by with the charms. The
crowd made wagers, chanted for good luck, and gestured wildly to drive away the
evil demons that might have caused the sickness. Having gambled everything
57
Games of the North American Indians, supra, note 11 at 34.
Ibid., at 31.
59
Little, The Moral Dilemma of High Stakes Gambling, supra, note 1 at 22. Culin reported that the
Iroquois also believed that the dice game would be enjoyed by them in the afterlife: see Games of the North
American Indians, supra, note 11 at 114.
60
Ibid., at para. 176. Also, see Games of the North American Indians, supra, note 11 at 106, 110.
58
12
away, the losers often left naked, but they were heartily thanked by the sick
people who believed their health recovered.61
Referring to this account (originally given by Jérôme Lalemant in 1639), Little notes that
the game was still a part of the Hurons’ healing ceremony in 1862 –although in her
opinion “it became merely a distraction for the patient.”62
The foregoing discussion demonstrates that Aboriginal gaming practices extend
back to antiquity and have fulfilled a variety of functions within Aboriginal communities.
Some of these functions continue to hold significance. Indeed, some Aboriginal
communities may place more importance on gaming practices today than was the case
pre-contact. Belanger states that “attack[s] on gaming [were] one facet of the
larger...assault on First Nations culture which was aimed at converting First Nations to
Christianity”.63 The late 19th century outlawing of the Sundance and the Potlatch
coincided with many Aboriginal games going underground. Not until the 1960s did
Aboriginal gaming emerge once again,64 arguably with a renewed cultural significance:65
In the face of such suppression of many other significant aspects of Ojibway [or
presumably any First Nations] culture it is understandable that cultural practices
which survive would be perceived as increasingly more important as a vehicle to
maintain that culture.66
61
Gambler Way, supra, note 10 at 10, citing Games of the North American Indians, supra, note 11 at 10910.
62
Little, The Moral Dilemma of High Stakes Gambling, supra, note 1at 20. This early account of the
Hurons was also brought up in the Nelson case, as support for the healing function of aboriginal gaming.
Giesbrecht J stated that that there was no evidence that “gambling is viewed in that way by aboriginal
people today”: Nelson, supra, note 12 at para. 184.
63
Gambling with the Future, supra, note 9 at 37.
64
Ibid., at 40.
65
Ibid., at 38-39.
66
Nelson, supra note 12, at para. 323. At para. 324 Giesbrecht J. stated that it seemed “inherently unfair
that such a repressive European influence should deny a claim of an aboriginal right” but did not resolve
this issue.
13
Gaming practices thus emerged in an environment ripe with the promise of constitutional
and political change. The implications of this environment are assessed in Part V. First,
though, it is necessary to move from the Aboriginal to the Crown side of the ledger,
examining the multi-faceted nature of gaming regulation.
III: Gaming’s Curious Criminal Law Character
Gaming restrictions generally aim to curb at least three ills: moral corruption,
addiction, and fraud. As Canadian society has become more secularized, the moral fault
attributed to gaming has diminished; it is now viewed less as a sin than a form of
entertainment, albeit with some risk. As well, the history of gaming provisions suggest
that legislators believed blanket criminal sanctions to be futile because the strict
prohibition of activities “tending to corrupt morals”67 drives them underground.
The balance between federal prohibition and provincial regulation of gaming is
precarious. It has been suggested that gaming in Canada has “a dubiously criminal
nature,” because “what Parliament prohibits for one group, it openly encourages for
others.”68 Given gaming’s traditional links to moral values and potential for harm, it
seems to fit within the ambit of the criminal law but many different gaming activities are
legal in Canada and generate enormous profits. The provinces’ ongoing promotion of
Criminal Code, R.S.C. 1985, c. C-46, ss. 163-172.1 (“Offences Tending to Corrupt Morals”).
Timothy Patrick, “No Dice: Violations of the Criminal Code’s Gaming Exemptions by Provincial
Governments” (2000) The Criminal Law Quarterly 44(1), 108-126 at 108.
67
68
14
gaming, emphasizing “fun, freedom and benefits” is an awkward fit with the idea that
gaming is a social evil.69
a) Early History
In 1892, the Criminal Code incorporated several gaming offences previously
contained in disparate federal laws under a single section entitled “Offenses against
Religion, Morals and Public Convenience”.70 It became an an indictable offence to play
or look on during play in a common gaming-house (defined as any place in which
gaming occured).71 Those convicted could pay penalties of increasing severity.72 The
Code also covered gaming on railway cars, steamboats or other boats or ferries used as
public conveyances.73 Lotteries and all attendant activities were expressly prohibited.74
The provinces also sought to codify their moral disapprobation of gaming.75
By 1927, the Code provisions had been expanded and the boundaries of liability
further defined.
For example, landlords and similar persons were deemed to be keepers
of common bawdy houses.76 The lottery provisions became more nuanced. It was no
longer an offence to: carry on a Church bazaar; hold lotteries to divide up property; offer
69
Ibid, at 112.
Campbell, Hartnagel, Smith “The Legalization of Gambling in Canada” July 6, 2005, p. 13
71
Criminal Code, R.S.C. 1892, c. 29, s.196.
72
Anyone found liable under this provision was liable to pay a penalty not exceeding $100 and not less
than $20: Criminal Code, R.S.C. 1892, c. 29, s.199. However, penalties became more severe when one
prevented or obstructed a constable or any other officer authorized to enter a common gaming-house from
entering: in addition to the $100 fine, one could be imprisoned for 6 months, with or without hard labour
(s.200).
73
Criminal Code, R.S.C. 1892, c. 29, s. 203.
74
Criminal Code, R.S.C. 1892, c. 29, s. 205.
75
For example, in 1888 Quebec enacted a provision under Title 8 (Police and Good Order) of the Revised
Statutes of Quebec imposing a punishment on any labourer caught gaming.
76
Criminal Code, R.S.C. 1927, c. 36, s. 229(5).
70
15
rewards to promote thrift; or offer securities recallable by drawing lots.77 The 1927 Code
clarified the extent of liability for pool-selling and book making by exempting lawful
horse races.
Betting on such events was permitted so long as no more than 10 people
made a single bet. The Code also put a limit of 7 races per day and described in detail the
amount of money that could be paid out.78
In 1956, the Report of the Joint Committee of the Senate and the House of
Commons on Capital Punishment, Corporal Punishment, and Lotteries called for
legislative reform of lottery-type offences. The Committee found that the provisions
lacked clarity, which made “efficient enforcement impossible.79” This defect was
exacerbated by “the contradictions and uncertainties [in] judicial interpretation.” 80 The
Committee observed that “the standards of enforcement vary from province to
province… reflecting to some extent the differing opinions of various communities on
lotteries;”81 and it noted “[the lack] of support for the present prohibitory laws [which]
cannot be enforced in the face of adverse public opinion.”82 Therefore, the Committee
recommended “some relaxation on the existing prohibitions to permit adequate and
workable control.”83
b) The Move to De Facto Provincial Control
77
Criminal Code, R.S.C. 1927, c. 36, s. 236(6) (a)-(e).
Criminal Code, R.S.C. 1927, c. 36, s. 235(2).
79
Queen’s Printer, 1956, at 65.
80
Ibid.
81
Ibid.,at 65-66
82
Ibid., at 65.
83
Ibid., at 68
78
16
In 1967, then Minister of Justice Pierre E. Trudeau introduced a bill giving the
provinces limited but express control over licensing gaming operations. These changes
were eventually incorporated through subsequent legislation in 1969.84 Within one year,
Quebec had established two Crown corporations to manage gaming operations. The rest
of the provinces were quick to follow. However, the amendments only granted partial
control over gaming operations to the provinces. Observing provincial success, the
federal government began operating a national lottery in 1976 through the crown
corporation of Loto-Canada.
In 1985, the federal government granted an exclusive monopoly over gaming to
the provinces in exchange for a $100M initial payment, and a $24M annual payment
indexed against inflation (currently worth about $60M). In exchange, the provinces were
granted the exclusive right to conduct gaming operations in their own right, and to grant
licences to eligible entities to do the same (although in a slightly restricted form).
Aside from some minor exceptions found in the Code’s s. 204, which deals with
private betting between individuals and pari-mutuel betting on horse racing, all legal
gaming is conducted either by the provinces or through their permission. Section 207
authorizes “lotteries”85 run by any of the bodies specified in s. 207(1) (a) to (d).86 For all
intents and purposes, provincial control in this area is exclusive. Section 207 also has
been leveraged by the provinces to create subordinate legislation, thereby managing the
Campbell, Hartnagel, Smith “The Legalization of Gambling in Canada” July 6, 2005 at 15.
The Code uses this term to encompass a wide variety of forms of gambling.
86
Campbell et al, supra note 84, at 19.
84
85
17
conduct of entities operating under provincial licences. In R. v. Furntney,87 section 207
was attacked as an unlawful delegation of the federal government’s criminal law power.
Dismissing the challenge, the Supreme Court characterized the impugned section as a
forbearance from acting legislatively in a particular area rather than a delegation of
legislative power.
Because certain terms in s. 207 are open to interpretation, each provincial
legislature implements slightly different gaming control schemes. The major differences
arise from the interpretation of section 207(1)(a) under which it is lawful for the
provinces to “conduct and manage” lottery schemes. The extent of provincial
involvement in the daily management of gaming concerns varies greatly.
Provincial schemes fall into three broad categories: crown corporations; charities;
and hybrids.88 Under the Crown Corporation model, employed by Manitoba,
Saskatchewan, and Quebec, a corporation owned by but operating at arm’s length from
the government is responsible for all aspects of gaming operations within the province.
The charity model, used by Alberta alone, conducts gaming operations exclusively
through charitable entities operating under provincial licences. The hybrid crown/private
model used in the remaining provinces permit public-private partnerships. For example,
in Ontario, the Windsor casino is owned by a crown corporation, but daily operations are
completely in the hands of Windsor Casino Limited, an entirely privately-owned
company. Nova Scotia and British Columbia also employ this model.
87
88
(1991) 3 SCR 89.
Campbell et al, supra note 84, at 22.
18
Because section 207(1)(g) permits a private interest to be involved in the
management of an otherwise lawful lottery scheme, it can be difficult to determine when
activity becomes an unlawful delegation. For example, it has been argued that the
structural arrangement for the management and operation of the Windsor Casino is
"inconsistent with Criminal Code provisions on the grounds that it was unclear just who
was actually conducting and managing the gaming operation.”89 Because the Criminal
Code only authorizes "provincial governments" to license charitable organizations, an
arrangement by which other entities are actually “managing and controlling” the
operations would appear to violate federal law. However, there is no legal authority
supporting this view and, perhaps more to the point, the federal government has never
challenged such arrangements. This state of affairs has led some to argue that gaming in
Canada has been de facto decriminalized.90
From the foregoing, one can conclude that what began as an outright federal ban
has morphed into an activity open to all Canadians, with massive financial benefits
flowing to provincial governments. The hybrid model’s apparent acceptance of private
companies suggests either that the provinces are breaking the law by delegating their
power to a non-charitable entity, or that the business of running a casino is not worth
criminalizing. The latter conclusion is more reasonable, since, if separated from the risks
of addiction, cheating or fraud, the bare act of conducting a “lottery scheme” does not
seem to constitute the kind of mischief at which the criminal law is properly aimed.
89
90
Ibid. at 68.
Patrick, supra note 68 at 109.
19
Certainly the manner in which gaming operations are subject to state control is an
odd fit with the division of powers. It appears that the federal government has used its
broad authority over criminal law to “create a monopolistic gambling industry””.91 It is a
fair,question whether gaming remains an appropriate subject for criminal control:
What ... is the evil or injurious or undesirable effect [of gaming] upon the
public?... [T]he question posed by Rand J [in the Margarine Reference was]: ‘Is
the prohibition then enacted with a view to public purpose which can support it as
being in relation to criminal law?’ All evidence is to the contrary. There no longer
appears to be any public purpose behind the criminalization of gaming. … It is a
government-run, legal, socially acceptable activity.92
Whether the Code gaming provisions are truly ultra vires is an open question. The
Supreme Court of Canada has held that “harm” is not a precondition for exercising the
criminal power. 93 As well, the Court traditionally has accommodated rather than
censured federal-provincial cooperation in areas that might otherwise pose genuine
difficulty in determining the proper boundaries of federal and provincial jurisdiction.94
The split opinion in the Reference re: Assisted Human Reproduction Act,95 though, may
signal the beginnings of a more rigorous approach. In AHRA, a narrow majority of the
Court found numerous sections of the Act ultra vires Parliament96 because they
constituted an attempt to regulate rather than criminalize various activities. The
impugned sections97 established a licensing and standards regime to govern certain
91
Ibid. at 108.
Ibid at 113.
93
[2003] 3 S.C.R. 571.
94
Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157.
95
2010 SCC 61, [2010] 3 S.C.R. 457 [AHRA].
96
Section 91(27), Constitution Act, 1867 (U.K.), 30&31 Vict., c.3, reprinted in RSC 1985, APP.II, No. 5
[Constitution Act, 1867].
97
Unlike the outright prohibitions -,on human cloning; the commercialization of human reproductive
material; and the reproductive functions of women and men and the use of in vitro embryos without
92
20
reproductive activities. Writing for four of the judges making up the majority opinion,98
Justices LeBel and Deschamps asserted that a valid exercise of section 91(27) must
respond to an "evil":
Where its action is grounded in the criminal law, the public purpose must involve
suppressing an evil or safeguarding a threatened interest... It is true that the
criminal law often expresses aspects of social morality or, in broader terms, the
fundamental values of society. However, legislative action by Parliament on this
basis presupposes the existence of a real and important moral problem.99
In response to an argument that the non-prohibitory sections of AHRA were necessarily
incidental, the justices admonished against using section 91(27) to shield regulatory
schemes:
The principles underlying the balance of Canadian federalism themselves require
that rules that relate in pith and substance to the criminal law power be
distinguished from those that, although having a regulatory aspect, are intended to
govern fields falling under other — exclusive or concurrent — federal or
provincial powers... In the instant case, the primary focus of the analysis is on the
“evil” the impugned provisions are intended to suppress. [A]lthough a connection
can be made between the pith and substance of the absolute prohibitions and a
risk of harm, the same cannot be said of the regulation of the other activities and
of the regulatory scheme that is established.100
The result in AHRA suggests that it may be possible to resurrect division of powers
arguments against the current criminal framework. In any event, the unstable platform
on which the criminal prohibition rests could be a relevant factor in determining
extinguishment (discussed in Part V, below).
consent – the impugned provisions set up a system for the controlled supervision of such activities as:
manipulation of human reproductive material or in vitro embryos; transgenic engineering; and
reimbursement of the expenditures of donors and surrogate mothers.
98
Justice Cromwell wrote a concurring opinion.
99
Reference re Assisted Human Reproduction Act, 2010 SCC 61 at paras. 232,238. It should be noted,
though, that the opposing opinion authored by the Chief Justice appears to implicity endorse the current
criminal laws relating to gaming. Ibid., at para. 104.
100
Reference re Assisted Human Reproduction Act, 2010 SCC 61 at paras. 246, 248.
21
IV: Current Aboriginal Gaming Practices
Given the success of provincial government gaming schemes, and the staggering
growth of the Aboriginal gaming industry in the United States,101 it is not surprising that
some Aboriginal groups in Canada have expressed an interest in commercial gaming
ventures.102 At the time of writing, several Aboriginal groups were operating gaming
establishments with permission from or in partnership with provincial governments.
Other communities have entered the gaming industry without government permission.
a) Provincially Sanctioned Gaming Operations
In several provinces, Aboriginal peoples have permission to operate small-scale
bingo halls on reserve, functioning in much the same way as a charitable bingo operation.
The communities are granted provincial licences, and must use the profits to benefit those
living on the reserve. This is the case in Alberta, where all gaming is done through
charitable licences.
In Saskatchewan, a different situation has emerged (unique, in fact, in Canada).
The province has partnered with an organization called Indigenous Gaming Regulators,
Inc. to manage Aboriginal gaming. The IGR essentially performs what would otherwise
See: Alexa Koenig & Jonathan Stein, “Lost in the Shuffle: State-Recognized Tribes and the Tribal
Gaming Industry” (2005) 40 U.S.F. L. Rev. 327 at 327: “In just fifteen years, between 1988 and 2003, the
tribal gaming industry [in the United States] has grown from $100 million to more than $15 billion.”
102
This paper does not examine the broader implications of casinos and other gaming ventures for
Aboriginal communities. Clearly, the attendant micro-economic and political issues are complex. For
some discussion of the issue, see Jacob T. Levy, “Three Perversities of Indian Law” (2008) 12(2) Texas
Review of Law and Politics 329.
101
22
be the province’s role in vetting licence applications and granting permission to
applicants to set up gaming operations.103
Ontario employs another innovative strategy through the Casino Rama operation
north of Toronto. Casino Rama is a public/private partnership between a provincial
government and an Aboriginal group. The province has teamed up with the Rama First
Nation to build and run a mega-casino, the profits of which are distributed to status
Indian communities across the province through the First Nations Fund.104
b) Gaming Without Provincial Approval
There also are some Aboriginal gaming operations which exist independent of
state approval.
i) Kahnawá:ke
The Mohawks of Kahnawá:ke present the most dramatic example of Aboriginal
gaming operating outside of state-sanctioned legal mechanisms. The Kahnawá:ke
reserve, south of Montreal, set up an onsite state-of-the-art server farm105 and created a
governing body to issue licences to operate online gaming sites using the on-reserve
technology. Its Band Council has developed a regulatory scheme that purports to
authorize internet gaming on the reserve. The operation involves two main components:
the Kahnawá:ke Gaming Commission (KGC) and Mohawk Internet Technology (MIT).
103
Indigenous Gaming Regulators (online) <http://www.igr.ca>>.
For a more extensive description of this scheme, see Lovelace v. Ontario, [2000] 1 S.C.R. 950.
105
A server farm is a group of networked servers (computers with dedicated internet access) that are
housed in one location.
104
23
MIT is created and owned by Mohawk Council and is responsible for maintaining
the technical infrastructure for Kahnawá:ke’s web hosting operation. MIT collects
monthly fees from internet gaming operators for server space and site maintenance.
Proceeds from MIT flow to all Mohawk members. MIT is uninvolved with the operation
of the gaming sites (this is the responsibility of the licensees); it simply provides the
technical architecture common to all websites, and maintains the servers where these sites
are located.
KGC is responsible for licensing all those involved in the internet gaming portion
of their internet enterprises.106 Applicants are subject to a rigorous investigation process
to determine their suitability to operate gaming sites from Kahnawá:ke’s infrastructure.
The investigation includes inquiries into the applicant’s business history and financial
records, and involves a detailed examination of the applicant’s software.
The regulatory scheme established by Kahnawá:ke appears to be well-regarded,
and clearly tries to protect players from unscrupulous gaming operators. Because of this
level of oversight, internet gaming operators are attracted to the Mohawk territory,
despite the system’s dubious legality. In 2007, around 60% of the world’s internet
gaming traffic was running through Kahnawá:ke.107
Frank Catania, “Internet Gaming Regulation: The Kahnawá:ke Experience”, p. 3.
http://www.cbc.ca/technology/story/2007/11/29/qc-goldenpalace1129.html. It should be noted that the
introduction of the U.S. Unlawful Internet Gambling Enforcement Act, prohibiting the transfer of funds
from financial institutions to internet gaming sites, has had a significant impact on the internet gaming
industry. It is quite likely that the percentage of internet gaming traffic running through Kahnawá:ke has
since changed, though it remains significant.
106
107
24
In September 2007, one of Kahnawá:ke’s customers, Cyber World Group, plead
guilty to several gaming offences. Cyber World Group is connected to Golden Palace, an
entity licenced by the KGC. Because of the guilty plea, the legality of the Kahnawá:ke
scheme remains untested. Also, the charges were laid as a result of a raid on Cyber
World’s offices in Montreal, not because of their connection with Kahnawá:ke.
Despite the fact that no charges have been formally laid against the Mohawks of
Kahnawá:ke, the governments of Quebec and Canada view the Kahnawá:ke online
gaming operation as illegal. The business has been investigated by both the Sureté du
Québec and CSIS; and both the Canadian and Quebec Attorneys General have spoken
out against it.108 The Mohawk Council has consistently asserted its authority to grant
licences, either as a free-standing Aboriginal right or as an incident of its right to selfgovernment.
ii) Alexander First Nation
Basing their program on Kahnawá:ke, the Alexander First Nation in Alberta also
set up a web-hosting operation on their reserve. However, Alexander never opened its
doors. Weeks before its scheduled opening in 2007, the Alberta Gaming and Liquor
“Kahnawake - Gambling on internet casinos” CBC News (18 November 2003), online:
< http://www.cbc.ca/news/background/gambling/internetcasinos.html>; Joe Friesen, “CSIS turning to
natives in search of information” The Globe and Mail (29 November 2008) A4.
108
25
Commission threatened to take action against the operation.109 This was soon followed by
Solicitor General Fred Lindsay issuing a “cease and desist” order.110 Chief Raymond
Arcand responded that Alexander had a right to host online gaming operations: gaming,
he said, was an integral part of his community’s heritage, and the “government of Alberta
desires to ignore [Alexander First Nation’s] sovereignty.”111 This might have set the
stage for a court challenge, but none occurred. In May of 2007, Chief Arcand indicated
that his community would not host online gaming web sites until it had the province’s
approval.112 The passage of the SAFE Port Act113 in the US was apparently another factor
that caused the First Nation to rethink its plan. The Act, which prohibits US banks from
processing transactions for online gaming operations, has had an impact on revenues
from the US.
After abandoning its online gaming plans, the Alexander First Nation marketed its
data centre as a venue for hosting non-gaming websites. Ultimately it was unable to
attract clients, and in March of 2009 the state-of-the-art data centre was shut down.114
V: Whither Aboriginal Gaming Rights?
Jason Markusoff, “Alexander chief defies regulator: Says online casino not Alberta’s business”
Edmonton Journal (9 February 2007) A1.
110
Jason Markusoff, “Gaming, band’s heritage: chief: Alexander First Nation rebukes Alberta’s
interference” Edmonton Journal (22 March 2007) A6.
111
Ibid.
112
Darcy Henton, “Alexander band gambles on new tactic; First Nation turns would-be online gambling
venue into data centre” Edmonton Journal (18 May 2007) B8.
113
SAFE Port Act, Title VIII - Unlawful Internet Gambling Enforcement Act.
114
“High hopes dashed on Alberta First Nation after data centre closes” CBC News (2 June 2009), online:
< http://www.cbc.ca/canada/edmonton/story/2009/06/02/edmonton-alexander-first-nation-datafacility.html>.
109
26
The foregoing discussion provides some background about the history of gaming
in Aboriginal communites, and the constitutive elements of relevant federal and
provincial legislative authority over the activity. To date, there has been little formal
challenge to the idea that gaming remains primarily a criminal law matter for which any
exemptions remain the sole purview of the federal government. Any attempt to
incorporate into this complex arrangement a free-standing Aboriginal gaming right will
raise a series of complicated legal issues. First and foremost is the requirement to
establish a particular incidence of gaming as an Aboriginal right protected under s. 35(1)
of the Constitution Act, 1982. Next, one must consider whether the framework of
criminal control had already extinguished all forms of Aboriginal gaming prior to 1982.
There remains a potential separate argument that gaming endeavours are an incidence of
Aboriginal self-government. Finally, any claim must survive the Crown’s counterargument that interference with section 35-protected rights are justified. These issues are
explored below.
a) The Basic Approach
Aboriginal rights are explicitly recognized in section 35(1) of the Constitution
Act, 1982 which reads: “The existing aboriginal and treaty rights of the aboriginal
peoples of Canada are hereby recognized and affirmed.” The section inhibits the state's
ability to infringe upon protected Aboriginal rights, and subjects laws interfering with
such rights to judicial scrutiny and potential invalidation.115
Michael Asch and Patrick Macklem, “Aboriginal Rights and Canadian Sovereignty” 29 Alta. L. Rev.
505 1991; C.A. 1982, s.52.
115
27
In R. v. Sparrow,116 an appeal from conviction under the federal Fisheries Act,117
the Supreme Court provided a partial framework for analyzing a s. 35 claim. The Court
held that s. 35 protects those Aboriginal rights existing in 1982.
The government had
argued that the fishing right in question – which related to non-compliance with certain
net requirements – had been extinguished by years of regulation. The Court rejected this
argument, finding the regulation to be simply “a manner of controlling the fisheries, not
defining underlying rights”. Extinguishment, in contrast, was held to require clear and
plain intent.118
Once an Aboriginal right has been established ,119 the party challenging the
legislation must establish a prima facie infringement of it. Three issues are considered:
the reasonableness of the infringement; the creation of any undue hardship on the right
holder; and the denial to the right holder of her preferred means of exercising the right. If
a prima facie infringement is found, the state can try to justify it on the basis of a valid
legislative objective accompanied by means that are consistent with the Crown’s special
trust relationship with Aboriginal peoples.
Because the Aboriginal right in Sparrow was undisputed, the Supreme Court
only hinted at the proper test for proving such rights noting that “[for] the Musqueam, the
116
[1990] 1 S.C.R. 1075 [Sparrow].
R.S.C. 1970, c. F-14.
118
Ibid. at para. 38.
119
Infra note 121.
117
28
salmon fishery has always constituted an integral part of their distinctive culture”.120 The
question was tackled more directly in Van der Peet,121 resulting in the distinctive
practices test. That test states that an Aboriginal activity must “be an element of practice,
custom or tradition integral to the distinctive culture of the aboriginal group claiming the
right”.122 In Sappier, the Court noted that “distinctive” need not mean “distinct” in the
sense of being unique to an Aboriginal group; the Court held that some pre-contact
survival practices could “in some cases be considered integral to the distinctive culture of
the particular aboriginal people.”123
In R. v. Gladstone,124 the Supreme Court found another relevant distinction
applicable to the justification stage: whether the right in question has an internal
limitsuch as food or social or ceremonial needs. If the right is limited only by market
demand and resource supply, it will not necessarily have “priority” over other, nonAboriginal interests. Instead, the government may use those competing priorities – such
as the pursuit of regional fairness and the historical reliance and participation in the
resource by non-Aboriginal groups – to justify interfering with the Aboriginal right.
b) Modernization
Like other Aboriginal practices, gaming's long-standing roots raise questions
about the extent to which it is protected in a modern form. In Sparrow, the Supreme
120
Sparrow, supra note 116 at para. 40.
[1996] 2 S.C.R. 507, [1996] S.C.J. No. 77 [Van der Peet].
122
Ibid., at para. 46. The majority provided a list of relevant factors for applying the test at paras. 48-74.
123
R. v. Sappier; R. v. Gray, [2006] 2 S.C.R. 686 at para. 37 [“Sappier”].
124
R. v. Gladstone, [1996] 2 S.C.R. 723 [Gladstone].
121
29
Court held that the phrase “existing aboriginal rights” in s. 35(1) must be read flexibly,
“so as to permit [those rights’] evolution over time.”125 The Supreme Court applied this
interpretation in R. v. Sundown,126 holding that a treaty right to hunt encompassing the
right to build shelters was not limited to their traditional form of moss-covered lean-tos
but included structures like log cabins which provided “an appropriate shelter for
expeditionary hunting in today's society.”127
Thus, Aboriginal rights can modernize. Indeed, this development tracks perfectly
the Supreme Court’s purposive interpretation of section 35 in Van der Peet:
[W]hat s. 35(1) does is provide the constitutional framework through which
the fact that aboriginals lived on the land in distinctive societies, with their own
practices, traditions and cultures, is acknowledged and reconciled with the
sovereignty of the Crown. The substantive rights which fall within the provision
must be defined in light of this purpose; the aboriginal rights recognized and
affirmed by s. 35(1) must be directed towards the reconciliation of the preexistence of aboriginal societies with the sovereignty of the Crown.128
Ssome scholars, though, regard Van der Peet as having effectively reinstated a frozen
rights approach. John Borrows notes129 that the Court relied on a inquiry which is linked
to “the practices, traditions and customs central to the aboriginal societies that existed in
North America prior to contact with the Europeans.”130 Borrows argues that the Court
thereby defined “aboriginal” as being essentially retrospective:
125
R. v. Sparrow, [1990] 1 S.C.R. 1075 at para. 27.
R. v. Sundown, [1999] 1 S.C.R. 393 at paras. 32-33.
127
Ibid.
128
Ibid. at para. 31.
129
John Borrows, “Frozen Rights in Canada: Constitutional Interpretation and the Trickster” (1997) 22 Am.
Indian L. Rev. 37.
130
R. v. Van der Peet, supra note 121 at para. 44.
126
30
It is about what was, ‘once upon a time,’ central to the survival on a community,
not necessarily about what is central, significant and distinctive to the survival of
these communities today.131
The modernization question will be critical to any Aboriginal gaming claim. As
discussed in Part II, traditional forms of these games date back to antiquity. Only
through an evolutionary perspective can a modern gaming enterprise be linked with its
past exercise. The meagre caselaw suggests that judges may find it difficult to distil the
essential elements of a gaming claim if the nature of the practice has undergone
significant change. For example, in R. v. Pamajewon,132 Chief Justice Lamer held that:
[C]ommercial lotteries such as bingo are a twentieth century phenomena and
nothing of the kind existed amongst aboriginal peoples and was never part of the
means by which those societies were traditionally sustained or socialized.133
If this is the standard that groups such as the Kahnawá:ke would face in court – proving
that their gaming practices took place on a twentieth century scale prior to contact with
Europeans – then the prospects of success are very slim since “[n]ot many activities in
any society, prior to this century, took place on a twentieth-century scale”.134
Pamajewon illustrates one of the most important limitations of Van der Peet: the
fact that modern commercial activities are not protected as Aboriginal rights unless they
were practiced in a commercial manner pre-contact. Indeed, this limit was crucial to the
Borrows, supra, note 129 at 43. The view that Van der Peet returned to a “frozen rights” approach to s.
35(1) also was expressed in the two dissents. Justice McLachlin (as she then was) expressed concern that
“to fail to recognize the distinction between rights and the contemporary form in which the rights are
exercised is to freeze aboriginal societies in their ancient modes and deny to them the right to adapt, as all
peoples must, to the changes in the society in which they live.” In a similar vein, Justice L’Heureux-Dubé
said that the majority’s focus on pre-contact practices “implies that aboriginal culture was crystallized in
some sort of ‘aboriginal time’ prior to the arrival of Europeans.” Van der Peet, ibid at paras 240, 165.
132
R. v. Pamejeown, [1996] 2 S.C.R. 821.
133
Ibid.
134
Borrows, supra, note 129 at 54.
131
31
result in Van der Peet itself. The defendant was convicted under the federal Fisheries Act
for selling fish when her license only permitted her to fish for food. The Court held that
Van der Peet did not have a right to sell fish, because while her aboriginal community
(the Sto:lo) did fish for food pre-contact, commercial fishing started only in the postcontact era in order to satisfy European market demand. Because the act of selling fish
was an activity that only became “central or significant because of the influence of
European culture” it was not part of the existing aboriginal right.135
In Gladstone, the Court acknowledged that Aboriginal peoples can possess
constitutionally-protected commercial rights.136 In that case, the Heiltsuk people engaged
in the pre-contact trade of herring spawn on kelp for money or other goods. Because
theirs was a commercial right, it had no “internal limit”, unlike for example a right to sell
fish in order to secure a moderate livelihood.137 Therefore, assuming sufficient market
demand, a commercial Aboriginal enterprise could expand beyond what existed prior to
European contact, yet still be protected under s. 35(1), as long as the activity had could be
characterized as commercial. Applying this reasoning, a specific right to engage in
commercial gaming practices would exist as long as the Aboriginal group in question
engaged in a commercial form of gaming prior to contact, and it was an integral part of
their culture. Such a right could potentially protect a large-scale gaming operation, given
that commercial rights are only limited by market demand. (Of course, in Gladstone the
Court also noted that a right with no internal limit does not have automatic priority over
135
Van der Peet, supra, note 121 at para. 89.
Gladstone, supra note 124 at 48.
137
Ibid., at para. 57.
136
32
all other interests.) Gladstone therefore could offer a opening for Aboriginal groups, like
the Kahnawá:ke, who assert an Aboriginal right to engage in large-scale gaming activities.
In a gaming case, a tension in the Supreme Court’s decisions in Sparrow and Van
der Peet could be significant. In Sparrow, the Court ruled that the criterion of “integral”
extends to the contemporary exercise of rights necessary for both physical and cultural
survival. But in Van der Peet, the majority’s construction of the distinctive practices test
did not incorporate “notions of survival and the contemporary exercise of rights”.138
Borrows has criticized the apparent shift in emphasis for failing to protect aboriginal
practices that developed as a result of European influence, even where such practices are
crucial to physical and cultural survival. He argues:
Surely this result is less than a full recognition and affirmation of Aboriginal
rights...The rights exist first and foremost to protect the group, and are only
incidentally concerned with the protection of specific practices.139
In her dissent, Justice McLachlin (as she then was) appeared to share this view.
In Sappier, the Court acknowledged the above criticism, stating that “the scope of
s. 35 should extend to protect the means by which an aboriginal society traditionally
sustained itself”.140 It continued:
The aboriginal rights doctrine… arises from the simple fact of prior occupation of
the lands now forming Canada. The “integral to a distinctive culture” test must
necessarily be understood in this context. …The use of the word “distinctive” as
a qualifier is meant to incorporate an element of aboriginal specificity. However,
138
Borrows, supra, note 129 at 49 .
Ibid., at 63. In Van der Peet, L’Heureux-Dubé J also gave a broad formulation of the purpose of s.
35(1): i.e.: the preservation of aboriginal cultures and societies: Van der Peet, supra, note 121 at paras.
157-62.
140
Sappier, supra note 123 at para 37.
139
33
“distinctive” does not mean “distinct”, and the notion of aboriginality must not be
reduced to “racialized stereotypes of Aboriginal peoples”.141
And yet, while the Court in Sappier clarified that notions of survival should inform the
application of the Van der Peet test, it held that the relevant question is whether a practice
was necessary for the pre-contact group’s survival – not present day peoples. Thus the
Court did not go so far as to recognize a free-standing right to sustenance. Rather,
Bastarache J stated, it is only “the pre-contact practices relied upon for survival [that] can
in some cases be considered integral to the distinctive culture of the particular aboriginal
people.”142
A second tension that could be significant in the gaming context is the extent to
which modern resistance to centuries of oppression and cultural hegemony can be
deemed “distinctive” practices. In Van der PeetI, Chief Justice Lamer warned that
“[i]ncidental practices, customs and traditions cannot qualify as aboriginal rights through
a process of piggybacking on integral practices, customs and traditions.”143 Given the
many connections between Aboriginal gaming activities and other important cultural
institutions Lamer CJ’s exclusion of “incidental practices” will surely be an obstacle in
gaming cases.144 But, while gaming practices may have been merely “incidental” to more
integral pre-contact practices, they could be recognized if they became “more significant
to a particular aboriginal culture because other significant practices, customs or traditions
Ibid at para. 45 citing J. Borrows and L. I. Rotman, “The Sui Generis Nature of Aboriginal Rights: Does
it Make a Difference?” (1997), 36 Alta. L. Rev. 9, at p. 36.
142
Ibid., at para. 37.
143
Van der Peet, supra, note 121 at para. 70 [emphasis added].
144
For example, see R. v. Nelson (1997), [1998] 2 C.N.L.R. 137 (Man.Prov. Ct.) at para. 301
141
34
were suppressed as a result of European influence.”145 An example of such reasoning is
found in Nelson, where the trial judge stated:
[I]t seems inherently unfair that such a repressive European influence should deny
a claim of an aboriginal right to a practice which assumed a much more
significant role in the culture because members of that society were prohibited
from practicing other significant aspects of their culture.146
The Supreme Court has not yet confirmed whether the Van der Peet test could be altered
in order to protect Aboriginal activities that became integral due to European oppression.
But given the right case, the s.35 jurisprudence could well accommodate a more
expansive understanding of Aboriginal rights along the above lines.
c) Extinguishment
Section 35 only protects Aboriginal rights existing at April 17, 1982, the moment
of constitutional entrenchment. Because the law recognizes that Aboriginal rights may be
extinguished through positive law before this date, it is necessary to consider whether the
Criminal Code’s gaming provisions qualify. Unilateral extinguishment of an Aboriginal
right requires a clear and plain intent on the part of the Crown in right of Canada;
provinces do not count. Is a criminal prohibition, likely worded in broad terms,
sufficient?
145
Ibid., at para. 324 [Emphasis added.].
Ibid. at para. 323. Giesbrecht J stated that “the playing of traditional aboriginal games...has become a
more important facet of Ojibway culture today than it may have been prior to contact, and that this is in
large part due to European influence, in the sense that a number of other significant practices, customs and
traditions were suppressed by government regulation for many decades.” Further, she admitted that “it is
understandable that cultural practices which survive would be perceived as increasingly more important as
a vehicle to maintain that culture.”
146
35
Because no Aboriginal gaming claim has surmounted the distinctive practices
test, the question is unresolved. There are very few cases in which s. 35(1) has been
invoked as a defence against a Criminal Code offence.147 Nonetheless, cases in which a
criminal defendant has asserted an Aboriginal right offer insight into the interaction
between Aboriginal rights and criminal prohibition or other forms of offence regulation.
Assistance may also be gleaned from the even rarer cases involving civil liability.
i) Criminal Code Offences
In the decisions referenced throughout this article, R. v. Nelson,148 a member of
the Roseau River Anishinabe First Nation was convicted of keeping gaming devices
contrary to s. 202(1)(b) of the Criminal Code. Nelson asserted a right “to participate in
traditional aboriginal games of chance or their modern equivalent, and to possess the
paraphernalia incident to these games including pagessan pieces, moccasin game
equipment and video lottery terminals” including “the right to organize and offer gaming
to the public in any reserve community.”149 Though Prov. Ct. Judge Giesbrecht found
that the defendant was not acting pursuant to an Aboriginal right, she considered in the
alternative whether any such right had been extinguished. On the facts of the case she
147
See e.g. R. v. Francis, [2007] O.J. No. 966 (Ont. Sup.Ct.) (QL). This case was a Crownb application for
summary dismissal of the accused’s application for a declaration of acquittal, based on the argument that he
is not subject to the criminal law of Canada. At para. 4 the issues raised by the accused are listed. Section
35(1) is simply listed as one of the reason why the Indian Act, and the Constitution Act, 1867 are
inapplicable to the Mohawk Nation. The trial judge allowed the Crown’s application and characterized the
accused’s claim as “frivolous and vexatious and not capable of succeeding” (at para. 17).
148
1997 CarswellMan 680, [1998] 2 C.N.L.R. 680 (Prov. Ct.) [Nelson (Prov. Ct.) cited to CarswellMan].
149
Ibid., at para. 94.
36
found that it had, because of the combined effect of Treaties 1, 2 and 4150 and the
criminal law in effect at the time. In the treaties, the Aboriginal signatories promised to
obey the criminal law which consisted of “the law of England as it existed on July 15,
1870, when Manitoba entered confederation.”151
The judge's partial reliance on the numbered treaties to answer the extinguishment
question may limit Nelson’s applicability to cases where the sole evidence of
extinguishment comes from the criminal law. Indeed, while the Court of Appeal
affirmed Giesbrecht J.’s decision,152 it did so on the basis that the Aboriginal rights claim
failed at the identification of the right stage. The Court of Appeal did not review the rest
of the analysis under the Sparrow framework.153
ii) Regulatory Offences
150
Treaty No. 1 (1871); Treaty No. 2 (1871); Treaty No. 4 (1874). See Alexander Morris, The Treaties of
Canada with the Indians of Manitoba and the North-West Territories, including the negotiations on which
they were based (Saskatoon: Fifth House, 1991) chs. IV and XI.
151
Nelson (Prov. Ct.), supra note 148 at para. 400. Giesbrecht J goes on to note (at para. 405) that at the
time “there were two English statutes which criminalized certain commercial gambling activities. Both An
Act to amend the Law concerning Games and Wagers, 1845 8 & 9 Vict., c. 109 (U.K.) and An Act for the
Suppression of Betting Houses, 1853 16 & 17 Vict., c. 119 (U.K.) prohibited the keeping of common
gaming houses. Penalties were imposed under both Acts upon any person who was involved in any manner
in conducting the "business" of betting or gaming.”
152
R. v. Nelson, 1999 CarswellMan 392, 180 D.L.R. (4th) 186 (C.A.) [Nelson, (C.A.) cited to
CarswellMan].
153
Ibid. at para. 9. The Court of Appeal stated:
In opting not to follow the same meticulous step-by-step analysis of each aspect of the argument
advanced by the accused, I neither approbate nor reject the learned trial judge's conclusions. I
commend her thoroughness and the patient consideration which she gave to arguments that, absent
the context of a constitutional issue, would not warrant such close attention
37
The Supreme Court has consistently stated that the federal government may not
existinguish Aboriginal rights through regulation. In R. v. Sappier; R. v. Gray,154 the
accused were charged with unlawful possession or cutting of Crown timber.155 A
majority of the Supreme Court found that the accused had established a right to harvest
wood for personal use. As the Crown conceded that the alleged right was infringed by
the legislation and offered no evidence to justify the infringement, the Court did not
address those issues. Reviewing the test for extinguishment, a majority of the Court
stated that although intent must be clear and plain it need not be express.156 Examining
four pre-Confederation statutes enacted by New Brunswick in the mid-1800s, the Court
found that they did not meet the test. Bastarache J. noted:
The legislation relied upon by the Crown as proof of extinguishment is primarily
regulatory in nature, although it does introduce prohibitions and create
misdemeanour offences.157
Bastarache J.’s statement could be taken to imply that some regulations which are
sufficiently prohibitive will suffice to demonstrate extinguishment. I suggest, though,
that he simply reiterated the Sparrow requirement of clear and plain intent.158
iii) Tort Law
A tort case, Thomas v. Norris,159 considered the effect of s. 35(1) on common law
liability for assault, battery, and false imprisonment. The plaintiff, who was seized by two
154
Sappier, supra note 140.
S.N.B. 1980, c. C-38.1.
156
Sappier, supra note 140 at para. 57.
157
Ibid. at para. 59 [emphasis added].
158
Ibid. at para. 60.
159
1992 CarswellBC 740, [1992] C.N.L.R. 139 (WLeC).
155
38
men, was imprisoned at a long house for four days and forced to undergo a “spirit dance”
ceremony. Thomas sued for assault, battery, and false imprisonment. The defendants
argued inter alia that the ceremony was a traditional practice protected under s. 35(1).
They then asserted civil immunity from alleged torts arising from the ceremony.
In the British Columbia Supreme Court, Hood J. held that there was insufficient
evidence to identify spirit dancing as an Aboriginal right. But even if the spirit dance was
an Aboriginal right, it could not have survived the introduction of English law into the
colonies to the extent that such law included restrictions on criminal conduct.160 Hood J.
then found that civil wrongs should “stand on the same footing as criminal conduct;161
and that “[i]f spirit dancing generally was in existence in April of 1982…the impugned
aspects of it…had been expressly extinguished”.162
Thomas was decided pre-Van der Peet, which may explain its relatively
unsystematic approach to identifying Aboriginal rights. The test for extinguishment,
though, was by then settled law. Hood J. did not explicitly reference Sparrow, nor did
he consider the distinction between regulating and eliminating a right. As well, Hood J.
uncritically accepted the notion that Aboriginal rights can be extinguished through the
common law. Sparrow’s language strongly suggests that only enacted statute or
constitutional law will suffice, particularly since extinguishment requires the intent of the
160
Ibid. at para. 90.
Ibid.
162
Ibid. at para. 104.
161
39
Crown which is not constitutive of the common law. Hood J.’s conclusions, therefore,
are not helpful.163
iv) Criminal Law under the Sparrow Framework
In previous cases where criminal defendants sought to invoke section 35, the Van
der Peet test was insurmountable. Because all claimants to date have failed to establish a
section 35 right, the approach to the remaining steps is hard to predict. Pamajewon and
Nelson demonstrate that the Sparrow framework is appropriate for Criminal Code cases,
but it is unclear how Sparrow’s final three steps would be applied. This lack of clarity is
arguably intensified in gaming situations because so much of the jurisprudence under
section 35(1) has developed in the natural resource context. Giesbrecht J.’s obiter
analysis in Nelson, which restates the extinguishment rule, may assist,:
While it is not necessary for the alleged extinguishing statute or regulation to
contain an express declaration of intention to extinguish a particular aboriginal
right, it is clear from the decision in Gladstone that the Crown must establish that
the implicit underlying purpose of the enactment was the extinguishment of the
right, and not some other purpose.164
In other words, while the statute or regulation need not contain an express declaration, the
Crown must establish that the implicit underlying purpose of the enactment was
extinguishment and not some other purpose.
Clearly, it is possible for extinguishment to be demonstrated through a criminal
prohibition which does not expressly state its intent to extinguish Aboriginal rights.
163
That portion of the judgment is also obiter because Hood J. found that the spirit dance did not qualify as
an Aboriginal right.
164
Ibid. at para. 336.
40
Some prohibitions – such as the more serious categories of offences against the person
like assault, sexual assault and murder – are sufficient to extinguish any contrary
Aboriginal rights by virtue of their own force. This is because the Crown’s intention to
protect the physical integrity of all members of the community could not reasonably be
said to be weaker in the case of offences committed by defendants who have Aboriginal
heritage.165 However, this reasoning is less helpful in explaining less serious criminal
provisions.
It is unclear whether the extinguishment of an Aboriginal right must be the law’s
only, or even most substantial, purpose. For example, a prohibition against common
assault would likely have as its underlying object preventingthe application of force to
another individual without consent or, more broadly, the maintenance of peace and order.
Such a purpose seems sufficiently elastic to extinguish any Aboriginal custom or
tradition that would include assaultive behaviour. Conversely, and, I suggest, less
persuasively, it could be argued that the purpose is too broad to meet the test for
extinguishment.
One might think that any criminal prohibition delineates the extent of Aboriginl
rights because it effectively states that such a right does not exist. No one subject to the
jurisdiction of the Crown can commit assault, for example, except on pain of punishment.
Some may dispute this point. Consider, for example, John Borrows’ discussion of Thomas v. Norris
where he points out the religious beliefs that gave rise to the initial “kidnapping”. Borrows, Canada’s
Indigenous Constitution (Toronto: UTP, 2010) at 266. Certainly it is possible for different mores to affect
the determination of whether, in law, a particular action constitutes an assault. In the Canadian context, one
need only think of the continued parental discretion to corporally discipline children. Criminal Code,
R.S.C. 1985, c. C-46, s.43; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney
General), 2004 SCC 4, [2004] 1 S.C.R. 76.
165
41
The passage from Sappier noted earlier might also suggest that a criminal prohibition is
sufficient for extinguishment. Bastarache J. described the impugned legislation as
primarily regulatory in spite of the fact that the legislation introduced prohibitions and
offences. One way of interpreting this comment is that legislation introducing
prohibitions and offences could be sufficient to extinguish an Aboriginal right unless,
examined as a whole, the legislation turns out to be primarily regulatory. Criminal
offences proscribe a particular activity and are enforced by penalties, and most criminal
prohibitions are not regulatory because of their universalist nature.
.
Still, using the language of Gladstone, while a criminal prohibition certainly does
more than control an activity, it may fail to delineate the extent of an Aboriginal right. At
the very least, even if criminal prohibitions are capable of meeting the test for
extinguishment, it does not follow that every criminal prohibition actually does. A court
should apply the test for extinguishment with careful attention to the particular
prohibition at issue. With anti-gaming law the query at least becomes more complex.
Even though certain gaming and betting activities were the subject of Criminal Code
provisions prior to 1982, arguably they constituted a mere regulatory scheme. In 1981,
the Criminal Code contained eight sections addressing gaming and betting.166 Some of
these sections created a number of indictable offences, but others stated exemptions
specifying the percentage of bets to be deducted and retained in a pari-mutual betting
enterprise. Section 190, which creates an exception for permitted lotteries, reads
particularly like a regulatory instrument. The split opinion in AHRA suggests that an
166
Criminal Code, R.S.C. 1970, c. C-34, ss. 185-192.
42
argument along these lines has merit. But a more narrowly construed case could also be
pursued that would not require a court to decide whether current gaming laws are ultra
vires.
To summarize, the legal history of gaming law in Canada could prove a source of
difficulty for Aboriginal claimants. A court could find that the constitutionally relevant
date is the date on which the first criminal laws against gaming came into effect which is,
of course, long before 1982. As discussed in Part II, the first (short-lived) criminal
offences were outright prohibitions. Were that enough to demonstrate extinguishment,
any future regulatory choices could well be irrelevant for the purposes of section 35.
While this fact is a potential obstacle it is not, necessarily, insurmountable. First of all,
the very early provisions were quite specific in their targeted activities, and it is likely
that numerous Aboriginal gaming practices would not be covered. Second, these early
provisions may not reflect the level of Crown intent required to extinguish Aboriginal
rights.
Most extinguishment inquiries involving Criminal Code offences will require full
analysis of the nature of the prohibition, even if it is accepted that a criminal prohibition
is generally sufficient to establish extinguishment. It is likely that this inquiry would stick
closely to the extinguishment test from Sparrow and Gladstone. I simply propose that,
given the history of the criminal gaming provisions, one should not assume that such
provisions automatically have extinguished pre-1982 Aboriginal rights.
43
d) Aboriginal Self-Government
A related issue that arises in relation to Aboriginal gaming rights concerns the
possible role of self-government. This was evinced in the dispute, discussed in Part
IV, between the Alberta Government and the Alexander Gaming Commission. In
response to a cease and desist order, the Commission defended its operation on
several bases, including: that the Alexander First Nation had retained exclusive
jurisdiction over its territory; that the Nation is a sovereign nation; that the Nation has
a long history of gaming, gaming participation, and gaming regulation integral to its
culture; and that the Nation has the exclusive right and jurisdiction to regulate gaming
within its territory because of the significant impact on economic development and
peace, order, and good government.167 This example demonstrates the imprecision
that can create confusion regarding the actual legal arguments being advanced and the
relationship between sovereignty, Aboriginal rights, and Aboriginal self-government.
i) Aboriginal Sovereignty
When Aboriginal groups claim sovereignty, they essentially are asserting that
within their territory they have “supreme dominion, authority, or rule”. 168 While
sovereignty is an attractive claim for Aboriginal litigants because self-government is its
natural corollary, it is very difficult to establish.169
“Alexander Gaming Commission Reports that The Alexander Chief and Council Defends its Inherent
Right to Build and Operate a Data Center” Canadian Corporate Newswire (21 March 2007) (QL).
168
Black’s Law Dictionary, 8th ed. s.v. “sovereignty”.
169
See R. v. Crow Shoe, [2004] A.J. No. 1170 (Alta. Prov.Ct.)(QL) at para. 12 for a list of almost a dozen
cases dealing with the applicability of the Criminal Code to aboriginal peoples and affirming the
sovereignty of the Crown.
167
44
The origins of Crown sovereignty over the territory of Canada are mysterious.170
Yet it has been repeatedly affirmed to the detriment of any concomitant Aboriginal
sovereignty. In R. v. David, Rutherford J. stated that “Canadian sovereignty is a legal
reality recognized by the ‘law of nations’”,171 but admitted that the judicial
pronouncements of this reality “have not always been clear”.172 Rutherford J. explained
the presumption this way:
Whether any part of Canada came under British control by conquest, was
ceded by treaty, or was simply annexed in a peaceful fashion, the whole
country became a ‘settled colony’ and through a constitutional
metamorphosis capped by the enactment of the Canada Act, 1982 in the
U.K. Parliament and the Constitution Act, 1982 in Canada’s Parliament,
Canada became a sovereign nation with plenary authority to exercise its
legislative jurisdiction under its constitution and govern throughout its
territory.173
As the success of a claim resting on Aboriginal sovereignty is still quite remote, this
article will not further interrogate it other than to note that such claims are doctrinally
separate from claims to self-government. The latter category is discussed below.
ii) Aboriginal Self-Government
Peter Hogg, Constitutional Law of Canada (Toronto: Thomson Carswell, 2007) Ch.28-28.1: “The
theory of the common law was that the Crown mysteriously acquired the underlying title to all land in
Canada, including land that was occupied by aboriginal people.” For a frank assessment of the weaknesses
of some Crown sovereignty arguments, see Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700
(CanLII) at paras 585-602.
171
[2000] O.J. No. 561 at para. 14 (QL).
172
Ibid.
173
Ibid. at 16. Asch and Macklem, supra note 3 at 515 state more plainly that “the presumption can only
rest on “unacceptable notions about the inherent superiority of European nations.”
170
45
The term “Aboriginal self-government” does not have a clear definition and may
vary in scope from a claim for total self-rule174 to the self-administration of certain
government services.175 If self-government is asserted through a successful s. 35(1)
challenge, its meaning would depend on the history of the Aboriginal peoples and the
particular facts before the court.
Although it is difficult to define or delineate Aboriginal self-government, it is
possible to separate the legal right to self-government from political negotiations
resulting in self-government.
Beginning in the 1970s, land claim agreements negotiated under the federal 1973
Comprehensive Land Claims Policy incorporated matters of Aboriginal governance.176
Though these agreements touched on self-government, the issue was not explicitly
addressed.177 The 1986 Comprehensive Land Claims Policy explicitly allowed selfgovernment arrangements to be included in the land claim agreements, although such
agreements were not constitutionally protected.178
In 1995, the federal government adopted the “Inherent Right Policy” which states
that the Government of Canada recognizes the “inherent right of self-government as an
174
Shin Imai, Aboriginal Law Handbook, 2d. ed. (Scarborough: Carswell, 1999) at 115.
Ibid.
176
Brian A. Crane, Robert Mainville & Martin W. Mason, First Nations Governance Law (Markham:
Butterworths, 2006) at 69.
177
Ibid.
178
Ibid. at 69-70.
175
46
existing right within section 35 of the Constitution Act, 1982”.179 Being a policy
statement, the Policy does not grant formal legal recognition of inherent rights. The
Policy instead is meant to inform the negotiation of self-government agreements, which
in turn can be given constitutional protection.180 Since 1995, there has been a new round
of self-government negotiations, and all comprehensive land claim agreements have
included self-government provisions.181
The foregoing describes a distinctly political. Most often, though, when
Aboriginal nations assert their right to self-government in court or in the news media,
they are referring to a legal right to Aboriginal self-government that is enforceable in
court independent of any negotiation with or consent of the State.
iii) Self-Government as an Aboriginal Right
Following R. v. Pamajewon,182 Canadian courts consider Aboriginal selfgovernment as one species of Aboriginal right.
In that case, the appellants were
convicted of gaming and betting offences under the Criminal Code. They argued that the
relevant Criminal Code provisions violated s. 35(1); and that they had a right to selfgovernment which included the right to regulate gaming activities on their reservation.
Characterizing the asserted right as overly broad, the Supreme Court refused to consider
179
Ibid. at 57, quoting Canada, Ministry or Indian Affairs and Northern Development: The Government of
Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal SelfGovernment (Federal Policy Guide) (Ottawa: Minister of public Works and Government Services Canada,
1995).
180
Ibid. at 58.
181
Ibid. at 70.
182
[1996] 2 S.C.R. 821.
47
the self-government claim on its merits. However, it strongly hinted that a right to selfgovernment could be established under application of the Sparrow framework. Such
claims “are no different from other claims to the enjoyment of aboriginal rights and must,
as such, be measured against the same standard”.183
Applying Van der Peet, the Court held that the correct characterization of the
right was a right to participate in and regulate high stakes gaming on their reserve. The
narrower claim did not satisfy the Van der Peet test because there was not enough
evidence to demonstrate the central significance of gaming to Ojibwa culture, or that
gaming historically has been subject to regulation by the Ojibwa community.
The problem encountered by the Pamajewon claimants demonstrates what will be
necessary for a successful self-government claim. First, an Aboriginal group must
challenge some government action, legislation, or regulation that bears directly on selfgovernment such as an Indian Act provision relating to self-government. The nature of
activity supporting the rights-claim must be significantly related to self-governance—not
merely a history of public games and sports events.
Next, the right being claimed must survive the remainder of the Sparrow
framework. It is hard to predict how each element of the Sparrow analysis would be
applied. In Mississaugas of Scugog Island First Nation,184 an Aboriginal nation claimed
183
Ibid., at para 24.
.
184
Mississaugas of Scugog Island First Nation v. National Automobile, Aerospace, Transportation and
General Workers Union of Canada (CAW-Canada), Local 444, 2007 ONCA 814, 287 D.L.R. (4th) 452.
48
a right to regulate work activities and control access to its land. The Ontario Court of
Appeal, agreeing with the lower court decision, re-characterized the Aboriginal right as
the ability to regulate labour relations.185 Applying Van der Peet’s criteria, the Court
found that such activity was not protected under s.35(1). It rejected expert testimony186
which sought to ground labour relations in the traditional dispute resolution mechanisms
employed by the Mississaugas:
[The] regulation and management of labour relations as we understand that term,
was in no way part of the traditional culture or practices of the First Nation.
… There was no labour market, nor anything resembling a wage-labour
relationship where labour would be sold in exchange for some form of
compensation. There is no evidence at all to suggest that the First Nation had a
traditional practice whereby a decision making council (like the Dbaaknigewin)
dealt in a hierarchical and coercive (terms used in the evidence) way with the
regulation of relationships between what we might think of as employers,
employees and groups of employees.187
185
The Court noted ibid at paras 26-27:
It is common ground that the [Scugog Band Council] Code is essentially modelled on the Canada
Labour Code. The Code establishes a detailed regulatory framework to govern labour relations
and to resolve disputes arising between employers and workers in relation to the collective
bargaining process. Neither the Canada Labour Code nor the appellant’s Code regulate work
activities: under both regimes, that is left for negotiation and contract between the union and the
workers pursuant to the collective bargaining process.
Nor can the Code fairly be characterized as controlling access to aboriginal lands. The sole
provision relating to access to aboriginal lands, s. 50, only deals with access where any person
wants “to enter on to the Reserve for the purposes of soliciting or seeking to solicit employees to
join a union”. The essential character of this provision of the Code is plainly the same as that of
the Code as a whole: it deals with the regulation of labour relations and collective bargaining. To
the extent that it deals with access to reserve lands, it does so in a purely incidental fashion. It
would, with respect, be a gross distortion to characterize the Code as regulating access to reserve
lands on the basis of a single provision that regulates access to reserve lands only where the party
entering the land does so to solicit union members.
186
Professor Mark Walters, cited ibid at para 36.
187
Ibid at para 38 citing OLRB decision (2004), 110 C.L.R.B.R. (2d) 1 at paras 79-81.
49
The Court of Appeal went on to hold that even if such practices had existed, they were
not sufficiently “distinctive” to the Mississaugas given that “the organization of work at
that level of generality is a feature of every human society.”188 The Mississaugas case
thus demonstrates the general difficulties faced by Aborginal rights claims that are
especially present in self-government189 claims: the challenge in drawing links between
pre-contact practices and modern instantiations of social arrangements; and the high bar
provided by the need to prove distinctiveness.
e) Justification
All of the discussion in this Part has related only to the first stage of Aboriginal
rights, where the claimant must persuade a court that a particular right is protected under
section 35(1). After this step, an Aboriginal claimant must still overcome the second
stage of analysis – justification. Similar to section 1 of the Charter, section 35 has been
interpreted to permit some interference with an existing Aboriginal right where justified,
albeit relying on factors that are distinctive to the Aboriginal context.
188
Ibid at para 39.
The dissenting opinion of Lambert J.A. of the British Columbia Court of Appeal in Delgamuukw [1993]
5 C.N.L.R. 1 (B.C.C.A.) at paras. 1011-1030, and the decision of Williamson J. in Campbell v. British
Columbia (Attorney General) (2000), 189 D.L.R. (4th) 333 at paras. 116-143, examine in some detail the
contours of the Aboriginal right to self-government. Justice Lambert found that the Gitksan and
Wet’sewet’en peoples “had rights of self-government and regulation” at the time of the assertion of British
sovereignty. Such rights which were “inconsistent with the concept of Brtish sovereignty” would be
diminished. But the common law, provincial laws, and federal laws lacking clear and plain intent would
not have that effect: “Subject to those over-riding considerations, [the] customary laws of self-government
and self-regulation have continued to the present day and are now constitutionally protected.” Justice
Williamson found that a “limited right of self-government” proceeded naturally from the Supreme Court’s
decision in Delgamuukw, going so far as to say that “no other result” was possible, and indeed had been
implied as early as R. v. Sioui [1990] 1 S.C.R. 1025. While the chances for a successful claim are remote,
in view of the fact that self-government could encompass a number of activities including gaming, it cannot
be rejected out of hand.
189
50
Because the justification stage is extremely fact specific – dependent both on the
particular contours of the Aboriginal right, and the extent to which the Crown seeks to
interfere with that right – sketching out hypothetical arguments is unhelpful. One can
expect the Crown to argue most strenuously not that its laws are justified but that the
asserted Aboriginal right either does not exist or has been extinguished.
With respect to
justification, in order to be consistent with the spirit of section 35 any arguments must
relate to valid Crown objectives (for example, the greater public good), and cannot
simply rest on a desire to stamp out the Aboriginal practice per se. Thus, for example,
the Crown might attempt to enforce regulations on Aboriginal gaming that will ensure
fair practices for participants. As described in Part III, Aboriginal peoples are perfectly
capable of generating such practices such as the extremely detailed structure employed at
Kahnawá:ke.
VI: Conclusion
In this article, I have sought to demonstrate the basic soundness of Aboriginal
gaming rights as a category of constitutionally protected activity. The strength of any
particular claim depends on numerous interrelated factors, not the least of which is the
“push-pull” dynamic evident in much of the section 35 jurisprudence. When it comes to
Aboriginal rights, courts give with one hand and take with another. While section 35
employs broad terms rooted in respect and reconciliation between Aboriginal peoples and
51
the Canada state,190 the translation of those principles into tangible results is an
endeavour fraught with difficulty.
There is great variance between academic and social science approaches to
Aboriginal rights on one hand, and judicial analysis of those rights on the other.
Obviously, the scope of the inquiry plays a role. Scholars will make claims about
Aboriginal peoples in general, based on the historical practices of several (and, often,
geographically and culturally distinct) communities. A rights claimant must demonstrate
that his or her own community has engaged in a particular practice – and evidence
relating to the practices of another Aboriginal community or academic generalizations191
is insufficient to the task.
With respect to the specific issue of Aboriginal gaming, this article has made
several arguments. First, gaming practices have existed since antiquity, and have been
important aspects of at least some Aboriginal communities long before European contact
or settlement. While it may be difficult to appreciate today, gaming was capable of
fulfilling numerous social functions and was not merely entertainment or leisure activity.
Many modern day Aboriginal gaming initiatives will appear to our eyes to be somewhat
removed from their origins. Under the modernization framework, however, this is not an
insuperable obstacle to their recognition under the Constitution.
190
Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 at para 32.
Culin’s research indicates that the importance of gambling probably varied between communities. At
one end of the spectrum, there are the 5% of the tribes that did not engage in any form of gaming (see note
12). At the other end are groups such as the Keres in New Mexico who even had societies devoted to
gambling games: see Games of the North American Indians, supra, note 11 at 120.
191
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Modern Aboriginal gaming operations do tend to resemble large scale commercial
enterprises capable of generating enormous profits. In this, they may have few
differences with provincial operations. This brings us to the second point of this article,
which is that the continued characterizing of gaming as a matter of criminal law is
increasingly difficult to defend. Only an activity with the most tenuous criminality can
be “prohibited” via the authority of section 91(27), yet also be farmed out to every
province to reap profits. The fairer view is that gaming is no longer an evil to be
obliterated, but a practice that, properly regulated, can co-exist with – and even enhance –
the public interest. Vieiwed in that light, any State argument that a particular
community’s gaming rights have been extinguished should be approached with healthy
scepticism.
Finally, I have argued that the current doctrinal framework governing Aboriginal
rights is broad enough to encompass gaming. The chief difficulty is how judges will
determine what counts as a significant aspect of a culture. A paradigmatic example of
this tension arose in Nelson. In my view, it would be appropriate to recognize gaming’s
“multiple interconnections with other kinds of social and cultural practices”.192 If courts
are less likely to accept gaming as a true Aboriginal right because of pre-existing biases
about the kinds of activities that ought to be regarded as culturally significant, that
attitude must be identified and challenged.
Section 35 reflects a distinct goal: reconciliation between the Canadian state and
the various Aboriginal peoples who exist within it. Under the creation story it provided,
192
Nelson, supra note [INSERT]., at para. 228.
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Aboriginal gaming rights are owed protection by virtue of their own force in the distinct
communities where they have played a constitutive role. Beneficially, claims under this
unique rubric of social activity may permit re-examination of settled assumptions about
the regulation of gaming in Canada generally. But at the very least, Aboriginal gaming
rights are owed the same balanced and purposive interpretation as any other Aboriginal
right.
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