THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, April 22, 2026
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:50 p.m. [ET] to examine and report on the subject matter of Bill S-241, An Act to amend the Criminal Code and the Indian Act; and, in camera, for the consideration of a draft report.
[English]
Sébastien Payet, Clerk of the Committee: Honourable senators, as clerk of your committee, it is my duty to inform you of the unavoidable absence of the chair and deputy chair and to preside over the election of an acting chair. I am ready to receive a motion to that effect.
Senator Pate: I move that Senator Francis take the chair.
Mr. Payet: It is moved by the Honourable Senator Pate that the Honourable Senator Francis do take the chair of this committee.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Mr. Payet: I declare the motion carried.
I invite the Honourable Senator Francis to take the chair.
Senator Brian Francis (Acting Chair) in the chair.
The Acting Chair: Thank you. Good evening, everyone.
Before we begin, I’d like to ask all senators and other in‑person participants to consult the cards on the table for guidelines to prevent audio feedback incidents.
Please make sure to keep your earpieces away from all microphones at all times. When you’re not using your earpiece, place it face down on the sticker placed on the table for this purpose.
I thank you all for your cooperation.
I would like to begin by acknowledging that the land on which we gather is the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation and is now home to many other First Nations, Métis and Inuit peoples from across Turtle Island.
I am Mi’kmaq senator Brian Francis from Epekwitk, also known as Prince Edward Island. I will be acting as the Chair of the Standing Senate Committee on Indigenous Peoples for the duration of this meeting.
I wish to invite committee members participating in today’s meeting to introduce themselves.
Senator Pate: Kim Pate, welcome. I live here on the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabe Nation.
Senator Clement: Bernadette Clement, Ontario — more specifically Cornwall, Ontario, on traditional Mohawk territory.
Senator Tannas: Scott Tannas from Alberta.
Senator Osler: Flordeliz (Gigi) Osler, a senator from Manitoba, from Winnipeg, which is located on the traditional lands of the Anishinaabe Cree, Oji-Cree, Dakota and Dene peoples and the homeland of the Red River Métis Nation.
The Acting Chair: Thank you, everyone. I wish to welcome all of you, as well as people across Canada who may be watching on ParlVU.
Colleagues, we are meeting today to study the subject matter of Bill S-241, An Act to amend the Criminal Code and the Indian Act.
This bill is similar to Bill S-268, which was also considered by this committee during the previous parliamentary session.
Today, we have the pleasure of welcoming at the table the sponsor of Bill S-241, our dear colleague the Honourable Scott Tannas.
Senator Tannas, the floor is yours.
Hon. Scott Tannas, sponsor of the bill: Thank you, everyone, for being here. I want to go through a few items to familiarize. This is the second time because of prorogation and an election that I’ve introduced the bill.
The core purpose of Bill S-241 is to recognize First Nations governments’ authority over gaming on their reserve lands. It aims to advance economic reconciliation by enabling First Nations to generate revenue and employment through complete control of gaming.
It does not grant new rights. Instead, it recognizes existing rights and provides a mechanism to exercise them or to choose not to.
For background, modern gaming in Canada is governed by the criminal code, which prohibits gambling except where provinces regulate it.
In 1985, the federal government transferred gaming authority to provinces without first consulting First Nations. Many First Nations believe and have evidence that gaming is historically inherent to their culture and can trace activity back to pre-contact with White settlers.
Today, 40 First Nations gaming operations exist, often under patchwork agreements with various provinces across the country. Support for this bill is widespread amongst First Nations, including a motion of support by the Assembly of First Nations.
With respect to consultation, this bill was co-drafted with First Nations leaders and legal teams. Extensive engagement occurred across Canada after the bill’s introduction. First Nations, as a result of that, are already collaborating on the development of a national Indigenous gaming commission to establish best practices and regulatory standards.
With respect to provinces, the provinces were not directly consulted, but there have been some informal discussions with provincial leadership. The provinces are expected to oppose the bill because it affects their monopoly on gaming and it may reduce provincial revenues.
Some provinces already acknowledge some First Nations jurisdiction through revenue-sharing agreements. Current provincial agreements vary widely across the country. Some share the profits, some take revenue off the top, some give 100% of profits to First Nations. With respect to inherent rights and jurisdiction, the bill recognizes an existing right to self‑government over economic activities on reserve lands.
The bill includes a notice requirement where First Nations must notify provinces and the federal government before taking up this right. That’s what preserves the option of communities to not participate in gaming at all, or to choose to make a deal directly with the province and continue to do what they’re already doing. It gives maximum flexibility to each community to do what is best for them.
With regulatory framework and self-governance, this bill intentionally avoids federal conditions. Sixteen First Nations have already begun working together to establish a framework for a gaming regulator. This is a clear demonstration of how First Nations are taking this issue seriously and wish to proceed.
A national Indigenous gaming commission is already being explored by First Nations themselves. We expect to hear testimony at the Legal Committee, which is the primary committee for this bill, on the progress with respect to the establishment of a self-regulatory organization signed on to by the gaming nations that exist today; this may provide grounds for a future amendment that would allow us to codify the establishment of a gaming authority.
There is great momentum for gaming First Nations with substantial investments within their territory and outside.
With respect to the social risks of gaming, the bill’s aim is to deal only with the issues of jurisdiction and not with the social impacts. First Nations are already working on shared regulatory standards. A new regulator would deal with these in similar methods, using best practices that are already in effect in provinces.
With respect to economic equity among First Nations, this bill does not mandate revenue sharing with other First Nations versus the host First Nation. First Nations, we believe, should decide how to share resources among themselves without being told how to do it by the federal government or by legislation.
The bill recognizes First Nations’ authority over gaming on reserve lands. It allows First Nations to opt in or out. It nullifies existing provincial agreements unless a First Nation chooses to keep them. It enables First Nations to regulate gaming themselves or through a national Indigenous body.
What the bill does not do is impose federal regulatory standards. It does not mandate revenue sharing amongst First Nations. It does not require provincial approval.
All of this matters because, frankly, this is a major step towards economic sovereignty and reconciliation. It corrects an historical exclusion from the 1985 federal-provincial gaming agreement. It empowers First Nations to control a major economic sector on their own lands.
Thank you, colleagues. I’m happy to answer questions.
The Acting Chair: Thank you, Senator Tannas. We open the floor now for questions. I remind you that you each have a maximum of five minutes for questions and answers; therefore, I ask both members and our witnesses to be concise. I will open it up with a question.
Senator Tannas, why did you expand the provisions of the bill to potentially include online gaming? What impacts would this have on First Nations?
Senator Tannas: That was an addition to this version of the bill where we put wording in specifically to say that this would give First Nations jurisdiction over gaming on their lands or from their lands. It would, again, level the playing field between the provinces and the First Nations.
We’re seeing that a number of provinces are in online gaming or iGaming. A significant amount of land-based gaming still goes on. In fact, the majority of money in the gaming industry at the moment is still with land-based activities — casinos. But a significant share is moving to online gaming, and there is a probably realistic expectation that that will continue to grow.
Where the percentages will go, who knows, but it is an area that would affect Indigenous communities that don’t happen to be adjacent to a large metropolitan centre. That is typically where we’re seeing Indigenous First Nations currently operating gaming operations. They are doing it adjacent to a major city.
This would allow other First Nations to potentially participate in electronic lotteries, other areas where they may want to specialize and do something creative and unique. They can do it from their own home territory that doesn’t necessarily have to be where a whole bunch of people are.
It would also give some First Nations the ability to use their land-based gaming to leverage that into the iGaming space. It provides lots of flexibility also for First Nations to work collaboratively to build iGaming co-ops, if you will, that could span more than one location.
The Acting Chair: [Technical difficulties] impacts First Nations.
Senator Osler: Thank you, Senator Tannas, for being here today. This committee has been referred the subject matter of Bill S-241, and the bill has also been referred to the Senate’s Legal and Constitutional Affairs Committee. You touched on it a little bit in your opening remarks.
Can you elaborate further on the areas of the bill that you believe will be covered and studied by the other Senate committee, the Legal and Constitutional Affairs Committee?
Senator Tannas: Yes. There are three areas that will get scrutiny at the Legal and Constitutional Affairs Committee. The first one is the whole issue of regulation. We have an example of what happened in the United States. There, when First Nations achieved the ability to control gaming on their own reserves by virtue of a Supreme Court decision; it happened quickly. After the decision, there was a really unfortunate, fast roll-out of gaming that did not have appropriate regulatory safeguards. There wasn’t time for First Nations to coordinate themselves because, really, the game was on.
What was witnessed in the United States was organized crime, a lot of nefarious activities and, eventually, there was an intervention by the federal government and the imposition of a regulatory regime that was agreed upon by the tribal nations. It was necessary and a kind of reset.
We don’t want to see that happen in Canada. We want to learn from that experience and so do the gaming nations here. So the question is, how are you going to regulate yourselves? It falls to the second issue, which is how you are going to protect consumers and your own communities from the potential pitfalls of operating gaming within your jurisdiction.
It’s a question only they can answer. They have taken up that call and are working actively on establishing things. There is a memorandum of understanding around a gaming commission. They’re now taking the next steps with consultants to try and build that out. We expect that’s what LCJC’s first issue will be. What will this regulatory framework look like? The second is, again, consumer protection. The third will be listening to what the provinces have to say.
We expect, as I’ve mentioned, that some provinces, maybe not all, will have significant concerns about loss of revenue and loss of control of the gaming industry in their provinces, even though they won’t lose total control of it. Many First Nations may choose to stay within the provincial regime, but now, at least, they’ll have a negotiating position from a position of equality, as opposed to being takers of whatever the province decides to give them. But those will be the issues.
Senator Pate: Thank you very much for being here. I was just looking — in between the Legal Committee and this one — at the fact that one of our colleague’s private member’s bills on online sports betting was just going through the House of Commons. I think all of us in this room remember that was set up by another bill that allowed online sports betting without the guardrails in place, if I can put it that way, and now we’re trying to do catch-up.
Is that the type of thing you’re talking about?
Senator Tannas: Again, that was a private member’s bill that established online betting and sports betting. It’s another good reason for us to have it at two committees and one that will really get into the nuts and bolts of the regulations.
Senator Pate: When I was with non-profits in Alberta, we often used casinos for fundraising. It always struck me as odd that we also had Gamblers Anonymous meeting in our offices. We were taking and giving money.
I know you’ve said that’s not the focus right now of what we’re studying, but do you know, for the First Nations that are interested in this, what kinds of efforts they are taking in that regard? What are the different rules? You may not know all of them, but what are the different arrangements between provinces? Frankly, I don’t even know what the arrangement was in Alberta.
Senator Tannas: Every province has a different arrangement. Saskatchewan’s is the most comprehensive and has worked quite successfully. One piece goes to the host gaming organization. There’s a kind of joint ownership of the operating of casinos that belongs to all the First Nations in Saskatchewan. The host nation charges a rent, and that’s where they get their profit. They build the building that operates, and they get a rent. The Saskatchewan government takes a piece for themselves. It just goes into general revenues. It’s the most complicated of them all.
Alberta is different. They have private gaming with operators. They have an established system. Their agreement with First Nations is more or less like that but with an additional recognition of the fact that it’s a First Nation. But still substantial amounts of money go into the province’s coffers.
The objective here is, obviously, to get 100% of the revenue going to the host community, and then from there, the host community will decide how to share with other communities on what fashion.
Similarly with the whole addiction and the moral side — the moral repair of gambling; it’s different in every province.
Senator Pate: In the First Nations you have been talking with, have you had some — and it’s not contingent on what you say or support — I’m curious what kinds of things they are talking about putting in place to try and avoid that.
I have only had very limited conversations, but I know often they are recruiting people from the cities, as you mentioned, to come out to their communities and go to the casinos, and then are trying to have those resources go into supports for folks who are living on the margins in their own communities, but I’m curious as to how —
Senator Tannas: Most of the large casinos are adjacent to cities and their customer base is largely non-Indigenous. Every province treats the social piece differently, and the Indigenous casino operators are part of that and pay for it on a pro rata basis. In the conversations that I have had with the operators in the communities, they recognize they would need to continue that as part of being socially responsible, part of earning the credibility and the ongoing support of the communities that they are trying to serve.
Senator Clement: Thank you, Senator Tannas. You sit on committee with me, so you know how I go about asking questions. I am going to say a few things and then you can react.
I had a sit-down with Chief Ted Williams of the Chippewas of Rama last summer, and we talked about various things. Chief Williams and the council expressed quite a lot of good comments about your bill in particular, and they were asking me about when it was going to come back. I just wanted to put that on the table.
Following up on Senator Osler’s question on the splitting up of bills between committees, I did not have a good experience with that in terms of Bill C-4 and Bill C-12. If you take away the power to amend in one committee that is hearing really good evidence and then you have this other committee hearing different evidence and they have all the power, it’s tricky. So if you could comment on that, I would appreciate it.
Can you also say more about this patchwork that you’re describing and the impact of that patchwork on communities. You were talking about different revenue-sharing agreements. Things just sound all over the place. If you could say more about the impact of that.
The last thing would be that I know you have consulted with different communities. What have you heard from them in terms of what control over gaming would do for their communities? I have heard from Chief Ted Williams. You must have had some pushback in other communities. Can you talk about some of the good and the bad that you heard from First Nations directly?
Senator Tannas: First of all, just with Chief Williams and Rama, he did come and testify. That will form part of the report that this committee will present to the Legal Committee. His story of being a pioneer in gaming in his community, the success that they had, the amount of money they invested, and then over time to see the province dilute their market share by placing casinos in front of them, closer to the Toronto marketplace, which in his testimony was not what was originally envisioned, to the point where Casino Rama has been damaged, with no ability to do anything. They are stuck in a provincial regime.
So his testimony, I think, is a real example of where First Nations communities, when they have their own ability to market, to game, will be able to do innovation. They will be able to develop things that everybody else who is stuck in the provincial system can’t. It will be a real opportunity for them to recharge. So there is that whole ability to take control of a business — what is a business, an entertainment business — and do things with it that they would want to do to be as successful as they can possibly be. That’s number one.
On the money side, it is substantial. I think Mr. Belanger will talk about this in his testimony. I know he is listening. But the estimate of the two casinos in Alberta, just two casinos in Alberta that are adjacent, one to Calgary and one to Edmonton, is that they transferred more than a billion dollars of profits to the province for the activities that they generated on their own lands, with their own capital at risk. That money would have stayed in that community for what their needs are and provided the ability for them to invest in other things, including other activities potentially on other First Nations.
So it is a large issue, and it’s growing. First Nations in B.C. are now looking at this. Some of them have — I can’t remember what it’s called, settlement lands — recognized settlement lands where there are significant opportunities for casinos that are being considered. It’s a big number for First Nations in aggregate across the country, and a significant number for each individual.
With respect to sharing, some of that money that I just talked about was distributed widely to First Nations in other communities. This is an issue that a number of First Nations have talked about in the meetings that I have attended where they are discussing it and they are saying, “Look, we’re First Nations. Our home territory is adjacent to a community where gaming is our opportunity for economic activity. And there is a community somewhere else up north that has trees or oil or uranium or other mining activities. We’re not asking them to send a piece of what they are adjacent to that is their economic activity, their economic opportunity to us. So we’re a little upset that the province is dictating how much, what the quantum is, that we have to deliver to our brothers and sisters out there because they are in control of gaming.”
It’s a fair point. But the answer that I hear is, “We want the ability to be able to make those decisions ourselves, and we’ll make them in concert with everybody.” That’s how the culture works.
So I know that is a live question, and potentially, it is a live issue for communities that are the benefactors of some gaming revenue given to them through provincial programs or schemes that, again, vary. Every province is different. I have not heard it, but I’m expecting to hear that somewhere along the way and we just haven’t yet. So maybe those communities have faith that everything will work out fairly.
Senator Clement: And the committee splitting, going to different committees?
Senator Tannas: Yes. I’ve been on committees with you where we have seen this not work. I think we are fortunate here in that we don’t have a lot of contentious issues amongst the First Nations communities about this. It doesn’t exist and hasn’t been shown to me at all. We don’t have a contentious issue where we should be doing something to improve the bill on the subject matter as it relates to First Nations communities.
If we did, it could be difficult, because all the other examples that you talked about where we were subject matter experts, but somebody else was doing the actual administration of the bill and amendments, there was a disconnect — I don’t think we have that here, but I think that’s luck rather than good management.
This is what we agreed to do, because there is this whole component of the regulation and consumer protection. It’s a Criminal Code issue, and, traditionally, that is something the Standing Senate Committee on Legal and Constitutional Affairs does. It is also a compelling economic reconciliation issue and a section 35 right issue as well.
Senator Clement: Clause by clause will happen at Legal Committee?
Senator Tannas: At Legal Committee.
Senator Osler: Senator Tannas, I’m going to ask you to touch back a bit on the regulatory framework and the research that you have done. Could you elaborate a little bit on best practices or what you would envision should be in a regulatory framework and who designs it or co-designs it? I would assume that within it, there would be some sort of oversight mechanism.
I’m wondering if you could talk a little more about what you have seen and what would be the best practice.
Senator Tannas: It’s under active discussion, and I don’t want to front run the work that the gaming communities are doing.
The idea is to preserve each individual community’s sovereignty, but in order to build consumer confidence and the confidence of law enforcement and others, to have the right safeguards in place through a larger commission.
That was accomplished in the U.S., and I believe a lot of the work right now of the Chiefs and of the gaming Nations is focused on the U.S. example as being one that, with some modifications, could become the Canadian example. I think they have hired a consultant, as far as I know, that was active in the First Nations gaming authority to kind of help put the meat on the bones.
I have attended a number of these meetings where the First Nations gaming communities came together to talk about — in the early days — the establishment of the gaming authority. They are focused on what they know to be the concerns of Canadians.
Senator Pate: Thank you. What about Métis and Inuit peoples? Have they been engaged at all, or is that something —
Senator Tannas: They have not. This has been exclusively a First Nations issue with a heavy emphasis on the assertion of their inherent right to do this.
I took that on early and just said, “Well, then, let’s focus.” This is truly a First Nations’ unique initiative. There is nothing stopping Métis and Inuit from following along, and maybe they will, but it’s First Nations.
Senator Pate: You mentioned earlier that in the U.S., after the decision, there were all kinds of issues. Organized crime is a big deal in this country too. Maybe you’ll tell me I should ask this when we’re at Legal Committee, but what are some of the measures that are being looked at? I guess it’s more obvious in a First Nation that the casino is there, and there is some money coming out of it, but will it encompass other kinds of gaming? I think of bingos.
Senator Tannas: There are some First Nations that engage in bingo, particularly in the Maritimes. Some First Nations just have slot machine parlours, and that’s it. Some have table gaming. Some have the whole gamut. It really is different.
In the U.S., they have levels of licensing and degrees of sophistication. That may turn out to be what the First Nations do. They will be ready to testify on what they have agreed upon and what it looks like and want to come to the Legal Committee and lay it all out. That’s the plan.
The Acting Chair: I don’t have anyone else on the list, so, Senator Tannas, thank you very much for your testimony. This panel is complete.
For the second panel, we have the pleasure of welcoming, via video conference, Yale D. Belanger, Professor and Chair, Department of Political Science, University of Lethbridge, Alberta.
Thank you for being with us today, Mr. Belanger. We’re now ready to hear your opening remarks, which will be followed by questions from senators. Professor Belanger, the floor is now yours.
Yale D. Belanger, Professor and Chair, Department of Political Science, University of Lethbridge, as an individual: Mr. Chair, honourable senators, thank you for the opportunity to appear today on Bill S-241. I acknowledge that we meet on unceded Algonquin Anishinaabe territory. I join from Lethbridge, Alberta, in traditional Niitsitapi territory.
My name is Yale Belanger. I am professor and chair of Political Science at the University of Lethbridge, and I have spent the last 20 years researching First Nations gaming in Canada. My published work includes two books, several articles, chapters, reports and some research grants.
I want to note that I am a non-Indigenous academic and will speak specifically about Canadian policy related to First Nations gaming. My goal today is to provide insight, not oversight. I will present five points, so senators can direct the balance of our time to the ones they find most useful.
First, Bill S-241 sits at the end of a 150-year federal policy arc, not at its beginning. From 1876 through 1951, federal law governed Indigenous gambling not through express prohibition but through sustained legal ambiguity rooted in Criminal Code implementation and interpretation.
The Indian Act of 1876 did not prohibit gambling on reserves, prompting Mounted Police Superintendent Primrose, in 1907, to seek statutory clarification from Ottawa, followed by Six Nations officials in 1926. Neither received an answer.
Gambling provisions were added to the Indian Act in 1886 and 1930, and following amendments in 1951, band councils were granted bylaw authority over the “control or prohibition of public games, sports, races, athletic contests and other amusements.”
The Criminal Code continues to prohibit the conduct, which is not an oversight but a fundamental feature of a regime that preserved discretionary enforcement authority for federal officials, federal police and, after 1985, provincial governments. To date, no federal legislative moment has addressed whether and how First Nations may exercise regulatory authority over gambling on their lands. Bill S-241 represents the first such moment.
Second, the bill’s pith and substance is federal criminal law. Bill S-241 amends section 207 of the Criminal Code, the same section Parliament used in 1969 and 1985 to delegate authority to the provinces to conduct lottery schemes. Parliament exercises its section 91(27) authority by adding First Nations governing bodies to the list of entities whose conduct of a lottery scheme does not attract criminal liability.
The bill follows the same constitutional path Parliament used to create the legislative space that allowed the provinces to establish their gaming corporations under their own legislation. It is not an overreach of section 35 nor a unilateral extension into provincial jurisdiction, but rather Parliament, within its federal authority, deciding that the authorized-conductor list should include First Nations alongside provinces.
Third, the spirit and intent of the bill is economic reconciliation grounded in self-determination. This is set out in the preamble, which invokes inherent and treaty rights, UNDRIP and section 35. These are important framing elements, albeit not the constitutional basis. The operative intent is to correct a structural asymmetry. Provincial gaming corporations receive roughly $19 billion annually, whereas First Nations gaming operators work within provincial frameworks that First Nations were not party to creating. Bill S-241 would give First Nations the same structural position that provinces have held for 40 years. Whether individual First Nations choose to exercise the authority, and on what terms, is a matter for each community. The bill is therefore enabling, not mandating.
Fourth, perhaps the most substantive question the bill raises concerns equity. As an example, Saskatchewan’s framework distributes First Nations gaming revenue proportionally through per capita disbursements to all First Nations in the province, including remote communities that could never host viable operations. Bill S-241 permits individual First Nations to opt out of provincial frameworks while also joining in.
Fifth, the intensity of provincial opposition to Bill S-241 is analytically significant. The post-1985 provincial monopoly was created by federal legislation, meaning that Parliament can restructure what Parliament created. The provinces’ opposition is, with due respect, a defence of a revenue stream and a regulatory position, not of any constitutional entitlement. The committee should distinguish clearly between the two.
With that, I welcome the committee’s questions on any of these points. Thank you, Mr. Chair.
The Acting Chair: Thank you, Professor Belanger. I will open the floor for questions. I wish to remind members that you will each have a maximum of five minutes for your question and answers, and therefore, I ask both members and our witnesses to be concise. I will open it up, Professor Belanger.
How would First Nations participation in online gaming affect existing provincial online gaming regimes? What challenges might First Nations face in operating and regulating online gaming in their communities?
Mr. Belanger: Thank you for the question. When you suggest affecting provincial regimes, is this from a financial perspective or a legislative or a policy perspective? I just need some clarity.
The Acting Chair: Any of the above.
Mr. Belanger: That makes it easy. I’ll start with the challenges.
To capitalize these operations is not insignificant. To suggest that a small community in a northern territory would be able to very quickly onboard an operation, make it operational and make it fruitful in a very short period of time, I think would be a misrepresentation of the capacity that many of these communities have.
I’m also concerned about the fragmentation that this could lead to amongst First Nations. I listened to Senator Tannas in his testimony, which is very difficult to follow. It was fantastically in depth. I really appreciated what he had to say. I understand why gaming First Nations at this stage may say to northern counterparts, “You have your own resource base. We’re not asking for that.”
Even at this point, when I take a look at the lay of the land, litigation has been fairly common between First Nations and provinces, and between First Nations themselves. The same thing has occurred down in the United States. I would hate to see those sorts of events unfold up here.
In terms of the effect, I believe that there would have to be some sort of intergovernmental arrangement to ensure that there was not going to be market cannibalization or oversaturation occurring. These are common processes down in the United States, which we can look to for some insights. Ultimately, I do believe that oversaturation and cannibalization are somewhat overblown at this point, but nevertheless, they are concerns that we have to keep in mind.
There are three examples down in the United States. One is in Florida. We call it the exclusivity model, where, ultimately, one tribe has the opportunity to control online gambling and pays a $100-million fee to the state on an annual basis. In Connecticut, we have a duopoly model, where the Mashantucket Pequot and the Mohegan tribes control online sports betting alongside the state lottery. Then in Michigan, we have what we would call a tribe multi-operator model, where there are 12 tribal casinos operating alongside 3 urban casinos in Detroit. They have done some excellent work in terms of offsetting the potential impacts of oversaturation and cannibalization.
Those would be some of the top issues that I would identify at this point.
Senator Osler: Thank you, professor. I have a two-part question. I understand gaming is a part of First Nations culture that predates the appearance of Europeans, and the bill’s preamble states:
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 rights of Indigenous peoples to regulate activities such as gaming, betting and lotteries from or within their lands . . . .
First, can you comment on the historical links between gaming and First Nations then and now?
And second, given your background on the emergence and evolution of Indigenous political organizations, what would access to this own-source revenue stream mean for the future of these organizations and communities?
Mr. Belanger: I appreciate the question, and I appreciate the homework you did on my background.
In terms of the first question, I always come at that from a political economy perspective. To get a sense of how integrated the various institutions that we would link to the simple word “gambling” were within communities, I tend to break it down into a variety of different categories. Historically, most First Nations in Canada had gambling traditions. These gambling traditions were embedded economically. They acted as wealth distribution mechanisms within communities. They allowed for a greater sense of equity, and they provided social safety nets at points in time that they were needed. Of course, the language I am using is today, and I’m projecting back, but these would be the processes that I would see evolving.
Gambling was fun. It was something that you participated in. It was an activity that people enjoyed. There were religious aspects to it. Funerary traditions were attached to gambling and different events that would take place within different settings in various First Nations across Canada.
There was diplomacy. Prior to Treaty 6 in 1876 being negotiated, all of the various First Nations communities arrived several weeks in advance, and they participated in gambling games. It was a moment of renewal. It was a moment of diplomacy. It was coming together for the purpose of establishing and re-establishing relationships that may have been lost over time. It allowed the communities to become better prepared and more knowledgeable about how to engage with the Queen’s negotiators who were coming out to negotiate the treaties.
When we take a look at this, it is not simply gambling per se but the integrated and almost invisible aspect of gambling within communities that, in the last 50 or 60 years, historians and anthropologists, working alongside First Nations, have started to unearth and reintroduce.
The second question is access by the First Nations organizations. As Senator Tannas identified, across Canada, in every province, which is its own regulatory space, the First Nations gaming policies are unique. Your question wouldn’t apply in Alberta because there is not really a significant First Nations organization per se. Ultimately, the money being generated within those communities is covered by a very specific agreement that identifies First Nations as charities and not self‑governing entities. Ultimately, the money is, then, directed into the First Nations Development Fund Grant Program, which acts as a grant mechanism. So, First Nations actually have to apply to the province to retrieve money that was generated within their communities.
At the provincial level, the FSIN, alongside SIGA in Saskatchewan, has done an incredible job of negotiating equitable agreements and engaging in intergovernmental relations with the Province of Saskatchewan. In this case, gambling is a boost to their ability to continue on as an effective agent of the First Nations people of Saskatchewan while enhancing sovereignty and ensuring there is going to be a greater economic gain among the communities.
It’s all going to depend which province we’re discussing, the context of the agreements, how the jurisdiction has been framed and so on.
Senator Pate: Thank you very much for joining us. I’m interested in the nature, historically, of the gambling. Obviously, there weren’t casinos back there. I’m just curious what there was.
The other thing is why post-1985? It seems to me there are a few amendments to the Indian Act in 1985 that undermined the authority of First Nations in major ways. This committee, of course, looked at Bill S-2 recently.
I’m curious about those two things.
Mr. Belanger: So, why 1985, and what has unfolded since? Okay.
It’s complex; 1985 is the date that the provinces and the federal government negotiated a compact that would ultimately enable provinces to accept jurisdiction over gambling. First Nations were not invited to the table during those negotiations.
That might be ancient history to my students, but to everyone at the table, it’s not. We recognize 1982 as the moment of repatriation of the Constitution, and contained within the Constitution Act was a provision that there would be four first ministers’ conferences held for the purposes of expanding the understanding of Aboriginal self-government. Those conferences were taking place, but First Nations that had gambling traditions that the Canadian government understood and recognized — the fact they weren’t invited to the discussion where gambling jurisdictions were significantly reoriented is a significant moment.
I think the provinces are going to latch onto this as a moment of constitutional change when, realistically, it is just a political accord between the federal government and the provinces. There was no constitutional instrument devised nor was a statute implemented.
From my perspective, I would argue that there is an incidental delegation of provincial licensing that occurs, but that does not transform the law into a provincial matter.
So, 1985 becomes a very important jump-off point to the contemporary discussion.
Senator Pate: And then some examples of what the gambling was, historically?
Mr. Belanger: Lacrosse is an example where, among the Haudenosaunee communities that would find other communities down to the south and to the west to participate, these were tremendous events. Communities would wager almost their entire wealth over the outcome of a game.
In terms of regulation and oversight, these are very well organized. There is a lot of what we would call money today, but there was a tremendous amount of treasure at play. There was also honour and diplomacy.
It could range from that to simple stick games, bone games where you gambled individually with one another and card games that involved larger groups. There were horse races out here in the West with the equestrian communities. You name it — there was a variety of games, to a degree that, in the early 1900s, Stewart Culin curated a book that is some 900 pages long cataloguing North America Indigenous gambling games and wagering tactics.
Senator Clement: Thank you, Professor Belanger. It’s good to hear from you. I liked when you said you provided insight and not oversight. I appreciated that in your introduction.
I have a few questions. I’ll ask them and then get out of the way.
First, why do you think the federal government has avoided doing what this bill does? Why have they stayed out of this space in trying to sort of rectify things?
Second, this is a bit uncomfortable as a question, but are there any risks? Some First Nations communities now are benefiting from these agreements. If this bill comes into force, will that mean that certain communities will no longer get what they’ve been getting? I worry about lateral violence: You take away, you give and then you create tensions between communities. That’s the second question, if you could please comment on those.
Third, you ended your opening statement by saying that we, of course, are going to expect the provinces to dislike this because they’re losing revenue, but I want you to say more about how we should receive that pushback from provinces. You said they are not going to talk about defending a loss of a revenue stream; they are going to use some other arguments. Could you say more about that piece?
Mr. Belanger: Okay.
The first one is incredibly provocative. I don’t think I’d be speaking out of turn to identify Canada as a colonial entity that has long embraced a civilizational agenda that was codified in the Indian Act and, ultimately, manifests through the placement of Indian agents within First Nations communities that were controlled from a centralized bureaucracy that we would understand today as being the two Indigenous oversight departments as they exist now.
Gambling, when First Nations brought it to the table in the early 1980s, was not taken seriously. It had a lot to do with the stereotypes that Canadian society had developed over time. Originally, when I talk about this corpus of gaming and wagering techniques that existed well prior to contact, when they were starting to be codified by the early missionaries and Jesuits who were coming into Canada, they identified gambling as amoral and certainly the practices of Indigenous peoples being those of uncivilized groups of individuals.
Those stereotypes withstood centuries of scrutiny until 1876, when we finally embedded in the Indian Act provisions to protect against intemperance within communities. At that point, with gaming and Indigenous communities, there was an amoral connection made. There was a deficit attached to gambling within an Indigenous community.
All the way through to the 1980s, the games that were part of political economies, that gave communities their standing, gave them their wealth distribution, and so on, were being continually defined as deficits, as amoral within those communities; that continued to circulate.
I’ve got commentary from officials across Canada throughout the 1980s and the 1990s, who say you want to abandon those games. You want to move forward. You want to progress so you have to abandon those traditions. That’s just traditional Indian Act thinking, and it was attached to gaming.
Hence, we jump ahead to the moment where First Nations, in the late 1980s, started to make a significant push forward saying, we want to engage in commercial gaming. That’s the moment where the Canadian government says, “Well, no, we can’t have you engaging in commercial gaming because you were participating in these other types of games.” And a distinction was made at that moment in time that still rests today.
So with the Canadian government — and this goes back — this is part of a larger civilization agenda that has been embedded within the institutions of Parliament, that continues to look suspiciously at anything that First Nations do, especially from a traditional perspective, that could ultimately provide a greater sense of economic, political and social coherence within their communities. As I said, provocative.
Some First Nations benefit. Will this mean lateral violence? I don’t know. I don’t know if I can answer that question, because again, every province that has a First Nations gaming agreement, or an analogue in place, is going to approach this issue uniquely. Because of that, there is a trickle down to the communities and, ultimately, they’re going to respond in a very specific way.
In Manitoba, where there are three casinos operating within First Nations communities and there are limited numbers of partner First Nations communities, I think that the provincial First Nations will probably welcome this, because ultimately it would create a floor, a minimum that all First Nations could aspire to in terms of potentially becoming gaming First Nations.
In Alberta, as Senator Tannas identified, there are two First Nations that are doing extremely well; three that are doing okay, they’re moderate operators. Ultimately, there is a First Nations development fund that the other 41 or so First Nations in the province may access as part of a larger revenue distribution agreement that was agreed upon once upon a time.
I believe that, in order to keep the peace, the superior-producing First Nations would continue to proceed with the equivalent of a revenue distribution agreement to ensure that ultimately there is buy-in and there is not going to be potential for litigation to develop.
Once again, every province is going to be unique.
And finally, with provincial pushback, this is something that Senator Cotter brought up in March of 2024. I read his commentary quite closely. He was right to identify that there was a potential asymmetry that could come with that, but, with all due deference to the senator, there is already an asymmetry in place.
When we take a look at Saskatchewan, 25% of the revenue from Indigenous gambling goes to the provincial government. In Alberta, 30% of all gaming revenue produced in the five casinos goes to the Province of Alberta, which, since 2007 until 2024, has amounted to $1 billion, even though the First Nations gaming project was designed, ostensibly, to aid First Nations that have been hurt by colonization, getting back to your first question.
So all things being equal, provinces like Alberta, I think, significantly will push back. I think there will be a modest pushback from Saskatchewan. We have seen it already with Minister Harrison. I think the intergovernmental relationships between the FSIN, SIGA and the Saskatchewan government will be able to manage those. I think you will see Ontario push back, primarily because there are good revenue streams there and that will ultimately hurt the general revenue potential of the provinces in the future.
Senator Clement: Thank you.
Senator Tannas: Professor Belanger, thank you for your testimony here. It’s nice to see you again.
I wondered if you could give us a little synopsis on your thoughts around the development of the argument, since the Supreme Court decision in Canada in the 1990s that said there wasn’t evidence of an inherent right with respect to gambling; that’s 30 years ago.
There has been a lot of movement. As I understand it, a lot of evidence has surfaced that maybe wasn’t there in the 1990s, or maybe the case wasn’t properly prepared for.
Can you comment on that? We’ve heard this before, that you shouldn’t be saying there is an inherent right because that was all settled in the 1990s with the Supreme Court decision. Can you bring that up to date for us?
Mr. Belanger: Sure. Pamajewon in 1996, and it’s a very early moment in the evolution of the First Nations gaming industry in Canada. 1995 was when we saw the first five casinos installed, four in Saskatchewan and one in Ontario. And ultimately, the Pamajewon case itself was integral to how the industry was going to develop and move forward.
Now, I’ve heard the argument over the years and so I did a little bit of digging. And I can summarize it really quickly at this point.
The claimants in the Pamajewon case ultimately failed the “integral to distinctive culture” test. It is two communities within a very specific setting who came forward with the testimony of an Elder and an anthropologist to suggest that they had this inherent right to gambling. I don’t want to diminish their argument because I personally believe that many First Nations across Canada will be able to demonstrate that they do have an inherent right. That was two communities within that one specific context, as you’ve identified, 30 years ago.
Ultimately the case did not foreclose Parliament from using criminal law powers to create a class of authorized conductors. To put it straightforwardly, things have changed, and really Pamajewon, because it was site specific, it does not, in my opinion, extend to all First Nations across Canada. I think each one would have to litigate those issues on their own as individual communities.
And finally, because this is a Criminal Code issue, I don’t believe that Pamajewon extends. The preamble of the bill is provocative. I think it’s important. I think that we need to set the stage for the dialogue by identifying inherent and treaty rights.
This is a statutory change. We all know that preambles are not justiciable, but, ultimately, they do provide the lens to read the bill through. I think it’s incredibly important that we recognize that foundation.
Long story short, I don’t think Pamajewon is equally as applicable today. We’ve had additional jurisprudence that has, in some ways, expanded the understanding, has narrowed the understanding. I think if you litigate it today, it is a completely different environment, and because this is a statutory move forward, I don’t think it’s entirely applicable.
The Acting Chair: Thank you, Professor Belanger. The time for this panel is complete and we will now move in camera.
(The committee continued in camera.)