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Toward First Nations self-governance over gaming in Canada
By Michael D. Lipton and Kevin J. Weber
October 16, 2015
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The Canadian Criminal Code (“Code”) provides that only provincial governments have the full authority to govern (“conduct and manage”) gaming and betting in Canada. The right of an entity under section 207(1)(b) of the Code that can be characterized as “charitable” to conduct and manage gaming exists at the whim of those same provincial governments. This is the legacy of Federal-Provincial Agreement that gave rise to the current division of jurisdiction over gaming in 1985. During the negotiations over this 1985 Federal-Provincial Agreement, gaming was being carried out on First Nations reserves throughout Canada, but this fact did not earn them a seat at the negotiating table. The new division of powers was dictated to First Nations without consultation.
The existence of constitutional protections over what section 35(1) of the Constitution Act, 1982 calls “Aboriginal rights,” while inclusive of a right of self-government, have to date been of little assistance in addressing gaming issues. In 1996, the Supreme Court of Canada in R. v. Pamajewon held that because neither gaming, nor the regulation of gaming, was an “integral part” of the cultures of two Ontario First Nations in question at the time of European contact, they did not represent rights protected by s. 35(1). While the Supreme Court did not go so far as to say that such a constitutional right could never be recognized, the nature of the test established in that case presented seemingly overwhelming obstacles to the establishment of a right to self-government over gaming-related economic activity.
However, the law relating to First Nations’ constitutional rights moves quickly. In the summer of 2014, the Supreme Court rendered two landmark decisions which set out principles that would likely have been unthinkable to the court that decided Pamajewon 18 years earlier. The judgments in Tsilhquot’in Nation v. British Columbia and Grassy Narrows v. Ontario shook the foundations of the federal structure of Canada, indicating that the law of the land is no longer exhaustively distributed between the federal and provincial governments.
In Grassy Narrows, the Supreme Court held that an acknowledged right of the provinces (the authority to “take up” land) is not unconditional. Rather, it must be exercised in conformity with the honour of the Crown and be subject to the fiduciary duties imposed upon the Crown in dealing with Aboriginal interests. In Tsilhqot’in Nation, the Supreme Court expanded upon the requirement for governments to consult and accommodate First Nations’ interests before proceeding with natural resources projects, stopping just short of requiring First Nations’ consent before such project can proceed. This, just 10 years after the Supreme Court first imposed the consultation and accommodation duty upon governments.
These decisions forced governments to reassess the strategies and processes they had put in place to address their duty to consult with First Nations over resources projects. Such decisions validate efforts by First Nations to have the courts revisit tests established by the Supreme Court in the 1990s for the establishment of constitutionally protected self-government rights, including those relating to the conduct and regulation of gaming.
The Supreme Court has acknowledged the concept of a First Nations sovereignty that predated the European arrival, in that First Nations lived in organized societies and exercised political authority as independent nations. This recognition gives rise to the core component of the inherent right of First Nations to self-government, arising from the right to use the land over which it had sovereignty as it may determine, including for economic purposes. |
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Courts have clearly recognized that First Nations prior to European contact were self-governing nations engaged in a form of communal living involving rights and responsibilities that were effectively administered within First Nation bands. These self-government rights were integral to First Nations culture, providing the foundation for First Nations’ survival over countless generations and governing how they lived, occupied, and used the lands prior to first contact.
Contact with Europeans eventually led to the assertion of Crown sovereignty, but First Nations laws survived the assertion of Crown sovereignty. These laws were absorbed into the common law as rights, unless they were surrendered voluntarily by the treaty process, or the government extinguished them or were incompatible with the Crown’s assertion of sovereignty.
The right of a First Nation to use its land for economic purposes relating to gaming would be compatible with Crown sovereignty as long as the gaming is carried out in a highly regulated environment, comparable to that provided by a state or provincial gaming commission.
To date, courts interpreting s. 35(1) have looked at rights of First Nations on an individual basis. One commentator describes this as the “Empty Box” formula: First Nations begin with the assumption that they have no Aboriginal rights worthy of constitutional recognition, and must seek to establish rights singly, filling the box with a right to hunt here, and a right to fish there. It is this much-criticized approach that resulted in the decision in Pamajewon.
This approach fails to take a realistic approach to reconciling the existence of First Nations rights with the assertion of Crown sovereignty. If the courts acknowledge the existence of prior First Nations sovereignty, that must have a meaning. Clearly, before the assertion of Crown sovereignty First Nations had a “Full Box” of jurisdictional powers, since as independent nations they would have had complete authority within their own territories and over their own citizens.
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Using the “Full Box” approach, unless it can be established that the right of self-government under discussion was surrendered voluntarily by treaty or extinguished by explicit government action, the test should focus on whether the First Nations right can be exercised in a manner compatible with Crown sovereignty. In that analysis, the onus of proving that a First Nations right cannot be exercised because it offends Crown sovereignty should rest upon the Crown.
The recognition that First Nations had plenary jurisdiction at the time of European colonization leads to an analysis whereby Crown and First Nations jurisdiction in the modern era are reconciled through the doctrine of sovereign incompatibility. If a First Nation right is incompatible with Crown sovereignty, Crown sovereignty must prevail. If a First Nations right is not incompatible, the First Nations right continues to be available to First Nations.
This plenary jurisdiction was acknowledged by the Crown in the Royal Proclamation of 1763. The historical record demonstrates that before European contact, First Nations were organized into societies, with intricate political and commercial alliances among themselves and regulation of land use. The arrival of Europeans drew the First Nations into European-based intrigues, conflicts and commercial activity. The Crown eventually attempted to stabilize relations between First Nations and colonists by way of the Royal Proclamation of 1763, which refers to First Nations living under Crown protection on lands within the Crown’s dominion and territories, while acknowledging that the Crown did not own unceded First Nations’ lands and could not appropriate them, but had to purchase them on a nation-to-nation basis.
The legal import of the Royal Proclamation of 1763 is that the Crown and First Nations simultaneously held sovereign rights to the same land, resulting in shared sovereignty. The only way the Crown could obtain plenary jurisdiction over First Nations lands was to purchase those lands. By necessary implication, this means that plenary jurisdiction over the lands occupied by First Nations throughout North America belonged to the First Nations prior to the arrival of Europeans, when the “shared sovereignty” regime began to be established.
In order to diminish a First Nations inherent right, the Crown would have to show there has been a clear extinguishment of the right, either unilaterally through surrender or by valid legislation prior to 1982. In the absence of such extinguishment or surrender, any legislative restriction of those rights would be an infringement which the Crown would have to justify, pursuant to the test as set out in R. v. Sparrow. In establishing justification, the Crown is required to demonstrate good faith efforts to consult with First Nations claiming infringement.
In the 2001 decision in R. v. Mitchell, two judges of the Supreme Court adopted a “doctrine of sovereign incompatibility” test. This test opened the door to moving the legal analysis away from the more artificial construct of whether a specific, narrowly defined “right” is “integral” to a First Nation’s culture (the test applied in Pamajewon), and towards an analysis dealing with real issues of sovereign compatibility. This analysis, if more widely accepted, could open the door to a “Full Box” test for First Nations rights.
The failure of the provincial and federal governments to consult with First Nations in the making of the 1985 Federal-Provincial Agreement was a breach of the Crown’s duty to consult, and a failure to adhere to its fiduciary obligations and the honour of the Crown. To this day, the federal government continues to refuse to consult with First Nations on gaming jurisdictional matters, on the grounds that the federal government delegated its power to regulate gaming in the 1985 Federal-Provincial Agreement. In so doing, it is relying upon the fruits of the Crown’s dereliction of duty in 1985 to justify the continuing inaction on the issue. This novel adverse impact of the failure of 1985 arguably imposes a new duty to consult on the part of the federal government in the area of gaming jurisdiction.
A strategy that sought to shape the development of the law in this area, in pursuit of a court-recognized First Nations jurisdiction over gaming, would require patience and years of struggle in litigation. The litigants in Tsilquotin Nation and Grassy Narrows demonstrated such determination, and in the result the courts demonstrated an ability to see old issues through a new lens. With self-government negotiations moving at a glacial pace across Canada, the courts may be open to revisiting the principles applied in assessing self-government claims in order to move matters forward. First Nations’ determination to achieve economic development through gaming could well be the test case that brings those principles to the fore.
About the authors:
Michael D. Lipton is a Senior Partner at Dickinson Wright LLP and Head of the Canadian Gaming Law Group and can be reached at 416.866.2929 or MDLiptonQC@dickinsonwright.com.
Kevin J. Weber is a Partner in the Canadian Gaming Law Group at Dickinson Wright LLP and can be reached at 416.367.0899 or KWeber@dickinsonwright.com.
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