FIRST NATIONS GAMING
Ongoing reconciliation between First Nations and the Canadian Government Indigenous peoples have lived in Canada since time immemorial. Indigenous peoples developed laws and systems of governance long before colonization, and Indigenous laws and governance have continued to the present day despite colonization. Initially, European newcomers and Indigenous people made trade agreements and treaties that were supposed to establish peace between their nations as equals. However, although colonial governments promised Indigenous peoples the right to live as they had always done, they soon began the project of colonization. The first Indian Act was enacted in 1876 and continues to be Canadian legislation that affects First Nations communities. Although many discriminatory provisions have been removed from the Indian Act, it continues to govern all matters related to “Indian” status, bands, and reserves, and therefore, still affects the lives of Indigenous people today. Since the beginning of colonization, Indigenous people have resisted colonization. Indigenous laws and rights continue to be further revived. Canada enacted the Constitution Act in 1982, which contains the Canadian Charter of Rights and Freedoms and other provisions. The Constitution Act recognizes and affirms “the existing aboriginal and treaty rights of the Aboriginal peoples of Canada” in its Section 35. Section 35(2) of the Constitution Act defines the “Aboriginal peoples of Canada” as including “the Indian, Inuit, and Métis peoples.” In December 2015, the Truth and Reconciliation Commission of Canada released a final report that included 94 Calls to Action in order to redress the legacy of residential schools and advance the process of Canadian reconciliation. Bill S-268’s preamble: recognizing the inherent rights of Indigenous peoples A lthough preambles are not enforceable laws in and of themselves, the Bill’s preamble is important in that it outlines the legal basis for the proposed changes. It states that: “Whereas Parliament recognizes the Inherent and Treaty rights of Indigenous peoples, including their rights to their lands, to self-determination and of self-government;
Whereas these Inherent and Treaty rights encompass the right of Indigenous peoples to regulate activities such as gaming, betting and lotteries on their lands; Whereas the Government of Canada is committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples, which emphasizes the urgent need to respect and promote the Inherent and Treaty rights of Indigenous peoples of the world; And whereas the protection of Aboriginal and Treaty rights — recognized and affirmed by section 35 of the Constitution Act, 1982 — is an underlying principle and value of the Constitution of Canada;” In other words, the Bill isn’t suggesting that Canadian lawmakers give Indigenous peoples new rights, but rather suggests that Indigenous peoples already have inherent and treaty rights to regulate activities such as gaming, betting, and lotteries on their lands. It remains to be seen what further impact this wording would have on Canada’s legal frameworks regarding Indigenous peoples should Bill S-268 become law. Although the Bill states that its proposal is based on existing inherent and treaty rights of Indigenous peoples, it still requires that First Nations provide notice of their intention to exercise those rights before exercising them. The Bill does not, however, give explanation as to why First Nations should need to provide Canadian and provincial governments prior notice. Proposed Criminal Code and Indian Act amendments As described above, the Indian Act continues to affect the lives of First Nations communities and individuals. Therefore, the Bill proposes changes both to the Criminal Code and to the Indian Act in order to make the changes needed to legalize First Nations conducting and managing lotteries on reserves. The proposed amendments allow for “a governing body of a First Nation or such other person or authority as may be specified by the governing body, either alone or in conjunction with the governing body of another First Nation or such other person or authority as may be specified by the other governing body, to conduct and manage a lottery scheme on that First Nation’s reserve, or on that First Nation’s reserve and the other First Nation’s reserve, in accordance with any law or
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IMGL MAGAZINE | OCTOBER 2023
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