Moved second reading of Bill S-268, An Act to amend the Criminal Code and the Indian Act.

He said: Before I start, thank you, Senator Boisvenu. I know we will have time to celebrate your legacy. You have left us a bill to honour your legacy, and it is much appreciated.

Honourable senators, I rise to speak to Bill S-268. I am a first-time sponsor of a Senate public bill. I have been here 10-plus years and this is my first bill.

For the record, I’ve been a member of the Standing Senate Committee on Indigenous Peoples since my very first day in the Senate. It has not always been easy, but it has been an honour to work with members past and present on issues and obstacles to reconciliation.

I’d like to thank First Nations people in general and Chief Roy Whitney of the Tsuut’ina Nation and Chief Bobby Cameron of FSIN — the Federation of Sovereign Indigenous Nations — for their initial inspiration to me to take this step on behalf of all First Nations.

Let me talk about the objective of the bill. This being second reading, my speech will be relatively short. I’m happy to answer questions. I’m going to try to stick to the principle of the bill.

Simply put, the bill affirms First Nations’ governments’ jurisdiction and power to govern gambling activities on their reserve lands, and does so in a way that matches identically provincial jurisdiction and powers in their respective jurisdictions.

Bill S-268 would formalize First Nations’ control of gaming only on-reserve. It would displace provincial control over those activities, including licensing and — here’s the tricky part — the appropriation of the profits. The desired outcome is that all activity and profit would be under the control of duly elected First Nations governments for gambling on their territories and reserves, in the areas of their jurisdiction. We’re talking about hundreds of millions of dollars per year that would accrue to the benefit of the First Nations communities involved. That’s what this bill attempts to do.

Here’s some context around the history and the situation today. About 40 years ago, the federal government entered into two agreements with the provinces that effectively devolved gaming — or what they called back then lottery schemes, as they were termed — to the provinces. This devolution involved changing the Criminal Code to say that only provincial governments could manage or conduct gambling or, as they called it, lottery schemes.

Of course, this being 40 years ago, there does not appear to have been any thought or consideration given to First Nations, or territorial governments for that matter; not surprising, after all, because the ink was barely dry on the Constitution at this point.

Since that time, First Nations governments have attempted to assert their right and jurisdiction in this area, citing section 35 of the Constitution and backed by evidence that gaming and gambling have been part of Indigenous culture for millennia, and certainly predates the arrival of and contact with European settlers.

Many First Nations governments entered the gaming industry in the hope and expectation of eventually realizing their jurisdiction. They developed infrastructure and expertise in good faith despite an uneven and sometimes unfair relationship with the provinces. Today, there are more than 30 Indigenous community-owned gaming facilities on reserves across the country.

Successive generations of First Nations leaders and delegations have engaged with and been assured by ministers of the Crown that the federal government is working toward recognition of rights and jurisdiction of gaming on reserve lands. Many years of soothing words to that effect have been heard by leaders and delegations.

It has become clear that nothing is happening. Nobody is working toward anything regarding this issue. Why is that? In this era of reconciliation, why is that? I suspect the real reason is because it’s hard, because doing what’s right will cost somebody who previously had a monopoly to have that monopoly removed and face competition and innovation and, ultimately, see less revenue than when they had a monopoly. This is what real economic reconciliation looks like. It’s hard.

Much effort has gone into reconciliation in the past 10 years or so, particularly with acknowledging the truth of our past; providing funding and development of Indigenous governments; and providing resources and jurisdiction in the areas of education, culture, social services and community development — all cost centres, by the way. We’ve provided jurisdiction and resources in all of those areas.

There is still much work to be done on these fronts, but talk has definitely turned to action — speaking as somebody who has an arc of time of 10 years watching Indigenous matters through the committee.

Economic reconciliation is more difficult because it disrupts the status quo. It displaces those who were advantaged by the policies of the past. It involves money, new competition and redistribution of market share. But it is overwhelmingly, colleagues, the right thing to do.

After decades of uneven and unfair suppression of First Nations rights and jurisdiction, and after years of quiet promises and assurances by ministers of the Crown, as we move past symbolic reconciliation toward tangible economic reconciliation, it is time to do this. To quote John F. Kennedy from many years ago, “We should do this, not because it is easy, but because it is hard.”

Colleagues, there are a number of nuances in this bill that will hopefully receive study and reflection at the Indigenous Peoples Committee, and I welcome the opportunity for improvement through the committee stage.

I will leave my comments here for now. I’m happy to answer any questions that you might have today, and you will certainly hear more from me about the bill — in greater detail — at third reading. Thank you.

Senator Tannas, I was hoping to garner a bit more detail about your bill because it is not something I have had a chance to delve into. Usually, at second reading, I hope to hear a bit more detail.

Did you consult with any provincial governments when you were drafting this bill about this very dramatic change to the gaming environment in Canada?

No, I did not. I intend to invite provincial governments to come and tell us what impact it will have, but, at the end of the day, this is about sovereignty — for Indigenous and First Nations peoples — and they either have it or they don’t. We either believe in reconciliation, and that they have jurisdiction on their own lands, or we don’t. I know what we will hear from the provinces, and you know what we will hear: It will cost them money. This will come out of their cut of casino betting and other betting that occurs on reserves. We’re going to give them the chance to come and talk about that. Maybe some provinces will see this as a positive step — one that is doable and within their purview to support.

Just as the federal government didn’t consult with First Nations when they gave the power to the provinces, we did consult with First Nations and received the support of the Assembly of First Nations, or AFN, through their gaming subcommittee. They have already started to work on some initiatives in support of this, should it pass — but no, I did not talk to the provinces.

The amendment that I had made to Bill C-218 — which brought about the inherent right of gambling that First Nations have — was voted against in the Senate, and the amendment didn’t pass.

What makes this different from that amendment? Also, does this include virtual gaming? As you know, with Bill C-218, First Nations across the country cannot enter into virtual gaming and are literally left out. The Mohawks, the Assembly of Manitoba Chiefs and the other chiefs from Ontario — I was bringing this on their behalf — are looking at correcting this. Could you answer those questions?

Those are all good questions. With respect to the amendment that you brought forward, I think I voted against it. I felt that it was a consequential amendment that was outside the scope of that bill, and that it needed to be its own bill. We have it here now, and I think we can engage on the discussion of the other items.

With respect to virtual gaming, the initial issue is to put First Nations governments in exactly the same position as the provinces. It’s not clear in any laws in the country — that I can see — where the rules are with respect to virtual gaming. Ontario and others have said, “Virtual gaming means you have to live in our province,” but that’s their interpretation of it. There isn’t any clarity.

As a step, we wanted to make sure that First Nations have the ability to pursue gaming on their reserves in law and in the Criminal Code. The one piece that we did make sure our language included was the fact that they can run virtual gaming servers on-reserve — that would be included.

The question of how their jurisdiction — as an elected First Nations government on-reserve — interacts with Province X or Province Y, or Country X or Country Y, is something that they will have to sort out and negotiate, but they will be negotiating in the context of all the other countries and provinces that are trying to understand how this works.

Senator Tannas, will you take another question?

First of all, thank you for your commitment to the Indigenous Peoples Committee. Just for clarity, does this bill protect the interests of those First Nations who do not want to have lottery schemes on their reserves? If this bill passes, will it bind all First Nations to take part in the gambling industry?

That’s one of the nuances that I mentioned. When we were drafting the bill, I remembered when we had the marijuana legalization. We had First Nations and Inuit communities come and say they wanted it to stay illegal in their communities, and whether there was a way we could make it happen. I thought we might see that same desire in some Indigenous communities; they may not want to have anything to do with this.

The bill accomplishes that by asserting the right, but, in order to activate the right, First Nations communities give short notice to the Government of Canada that they intend to take up their right. In that way, those who don’t want to, don’t. Thank you for the question.

That is a great question, thank you.

Let me say that if we truly believe in reconciliation and we believe in Indigenous governments’ jurisdictions, you can’t put a whole bunch of conditions on them when we hand them over something that is already theirs. If we believe it is already theirs, it is tough to start making conditions and rules for them.

The Indigenous governments that are currently involved in gaming recognize this. Again, another nuance in the bill contemplates the ability for Indigenous communities to establish an Indigenous gaming commission where they would work together on common standards.

Would they actually make it somehow mandatory or put into law some way in which they have to do that? Probably not. It would probably be more along the lines of an association that would audit and make sure the standards were being followed, and if they weren’t, it would issue consumer warnings.

But the point is that is the work that needs to be done of that order of government that wants and actually believes they already have, in some cases — in fact, there is a community in Quebec that is probably against this bill because they’re worried that, somehow, there is an admission they don’t have the rights they believe they have now. They operate how they feel like, and they dare anyone to come and tell them they don’t have the rights.

This bill allows First Nations governments, as they take up the jurisdiction, to also cooperate on a regulatory regime that they will decide.

Thank you.

Senator Tannas, will you take a question or two?

Yes.

Thank you.

This is a fascinating initiative, Senator Tannas. It raises a variety of fascinating potentials and also some challenges.

I want to begin by channelling Senator Batters, if I might. In Saskatchewan, there are casinos on reserve — on roughly five reserves. Every dollar that is earned in those casinos goes back to First Nations communities now as is.

Second, that money is distributed, pro rata, to all the bands in the province, even the ones in the Far North that could never sustain a casino even if they wanted one; there would be no customers.

So empowering individual First Nations that are in attractive geographical locations to have the jurisdiction to operate their own casinos seems to be, quite frankly, a disruption of that fairly equitable arrangement in Saskatchewan. The band outside of Saskatoon — my good friend and yours, Darcy Bear, oversees a casino on the White Cap Dakota reserve, but the money that casino makes gets pooled in a province-wide arrangement. It seems to me that your proposal makes it possible that Chief Bear could carry on with his casino and keep all the profits, which would be great for White Cap Dakota — as it is for some First Nations around Phoenix, for example — but it is not so good for the rest of the province.

Could you comment on that?

Yes, and you’re right —