Supreme Court of Canada –  2 S.C.R. 821
In this decision, the Supreme Court of Canada considered the aboriginal right to maintain large scale gambling activities. If they do not completely close the door to the possible existence of such a right for some First Nations, the judges are quite severe and only leave a small opening.
Can large scale gambling activities be considered as an aboriginal right according to section 35 of the Constitution Act, 1982?
In this case, Aboriginal peoples did not succeed in proving their aboriginal right to large scale gambling activities (unanimous decision).
Between: Howard Pamajewon and Roger Jones
And: the Ontario Crown
– and –
Between: Arnold Gardner, Jack Pitchenese and Allan Gardner
And: the Ontario Crown
Interveners: Canada, Quebec, Manitoba, British Columbia, Saskatchewan, Alberta, the Assembly of Manitoba Chiefs, the Federation of Saskatchewan Indian Nations and White Bear First Nations, and Delgamuukw et al.
Pamajewon and Jones
Pamajewon (councillor) and Jones (chief) are members of the Shawanaga First Nation (Ojibway Nation). Its Band Council passed a by-law pertaining to lotteries that was not in conformity with section 81 of the Indian Act.
From September 11, 1987 to October 6, 1990, there were high stakes bingo and other gambling activities taking place on the reserve. These were held without a provincial license even though Ontario Lottery Corporation had offered them one. They were accused of keeping a common gaming house in violation of section 201 (1) of the Criminal Code.
Gardner and Pitchenese
Arnold Gardner (chief), Jack Pitchenese and Allan Gardner (both councillors) are members of the Eagle Lake First Nation (also Ojibway). Its Band Council also passed a by-law concerning lotteries, contrary to section 81 of the Indian Act. They refused to work with and consult Ontario Lottery Corporation on the subject.
Since 1985, they have been holding bingo activities on the reserve and they were charged with conducting a scheme for the purpose of determining the winners of property, violating section 206 (1) (d) of the Criminal Code.
The Shawanaga First Nation and the Eagle Lake First Nation: They possess an inherent right to self-government that gives them jurisdiction in managing reserve lands without interference from the provincial or federal government. Also, the Ojibway have an Aboriginal right to hold high stakes gambling activities as these activities have been part of their distinctive culture since before the time of the Europeans’ arrival. This releases them from the obligation to obtain a license from the Lottery Board to hold bingos and other high stake gambling activities on their reserve.
The Crown: In assessing the right, the test in Van der Peet is to be used. The particularities of this case do not show that gambling was a distinctive and integral aspect of the band’s culture.
Provincial Court (1993): The accused are convicted. All of the arguments concerning their inherent right to self-government or Aboriginal right according to which the provisions of the Criminal Code were inapplicable were rejected.
Ontario Court of Appeal (1994): On appeal, the convictions were maintained. An Aboriginal title does not create an inherent right to self-government. Even if the bands had an Aboriginal title, it had been extinguished by the clear and plain intention of the Crown.
Lamer, La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, Major
Lamer: Asking that the Court pronounce itself on the nature of Aboriginal peoples’ right to self-government (an analysis that should still be guided by using the test in Van der Peet) would be excessively general.
The best description of the appellants’ petition is that they were seeking a declaration that section 35 (1) acknowledges and asserts the rights of the Shawanaga and Eagle Lake First Nations “to participate in, and to regulate, gambling activities on their respective reserve lands.” (par. 26 of the decision).
The gambling activities held before the Europeans’ arrival were mostly informal and operating on a small scale, which cannot be compared to the operation of a modern casino. Hence, high stakes gambling was never an integral part of the distinctive cultures of the Shawanaga or Eagle Lake First Nations. According to the evidence presented, it cannot be protected by section 35 (1) of the Constitution Act, 1982. Also, the judge is quite severe since he says he supports the following statement (par. 29):
“…commercial 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.”
In 1995, the Government of Canada expressed its position on the inherent right of Aboriginal people to self-government in the Aboriginal Self-Government Policy Guide, which advocates for the implementation of the inherent right to self-government and the negotiation of Aboriginal self-government (Hurley and Wherrett, 1999a). The decision is narrower in scope than the policy guide since the latter was grounded in the government’s acknowledgment of the inherent right to self-government for Aboriginal people.
In the Royal Commission on Aboriginal Peoples (RCAP)’s final report, one of the recommendations for the achievement of Aboriginal self-government is through modern treaties with both levels of government (Morse, 1997).
According to the federal government, in September 2012, 21 negotiation tables on self-government were in existence. It is estimated that each final agreement takes about 15 years to conclude.
If the Supreme Court did not leave a wide opening to the existence of aboriginal rights to hold a casino, it did not close it either. The Van de Peet test would simply be tough to fill.
Some provinces have regulated First Nations’ gambling games, and the sharing of revenue. The Assembly of First Nations has suggested that a national organization for the control of First Nations’ gambling game be created.
In Quebec, only Loto-Quebec is authorized to operate casinos and other gambling activities. However, some Mohawks in Kanhawake wish to implement a casino on their territory. They have a poker institution, and organize some gambling activities that appear to be in contravention of the provincial law. They say that they have an aboriginal right to do so. As law professor Eric Cardinal explains, “many anthropological and historical studies suggest that in Mohawk culture, there were gambling games regulated by some form of authority, which could be considered as a type of jurisdiction.”
Mitchell v. M.N.R.,  1 S.C.R. 911
Cardinal Éric. 2012. Le casino mohawk serait (peut-être) légal. Cardinal Communication. Online http://www.cardinalcommunication.com/fr/blogue/le-casino-mohawk-serait-peut-etre-legal-358.php. Consulted August 22, 2013.
Hurley Mary C. and Jill Wherrett. 1999a. Aboriginal Self-Government. Parliamentary Research Branch of the Library of Parliament. Report prepared for Members of the Senate and House of Commons. On-line. http://www.parl.gc.ca/information/library/prbpubs/prb9919-e.htm. Consulted August 24, 2009.
Hurley Mary C. 1999b. The Indian Act. Parliamentary Research Branch of the Library of Parliament. Report prepared for Members of the Senate and House of Commons. On-line. http://dsp-psd.tpsgc.gc.ca/Collection-R/LoPBdP/EB/prb9923-e.htm. Consulted August 23, 2009.
Morse Bradford. 1997. Permafrost rights: Aboriginal self-government and the Supreme Court in R. v. Pamajewon, McGill Law Journal 42 (1997): 1011-1042.