Moved second reading of Bill S-241, An Act to amend the Criminal Code and the Indian Act.

He said: Honourable senators, I appreciate your indulgence. I will be quick.

For context, this bill is the reintroduction of Bill S-268, which was introduced in the last Parliament, the Forty-fourth Parliament.

Bill S-268 received second reading and was sent jointly to the Committee on Indigenous Peoples and the Committee on Legal and Constitutional Affairs. The Indigenous Peoples Committee held five meetings on the bill and heard from 16 witnesses, so we have a good start on the study of this particular subject, but there is a lot that remains to be explored at committee.

Since the introduction of that bill, we’ve had an enormous amount of response from First Nations communities, both to me and in support of the bill. In organizing themselves in parallel to the bill’s consideration in the Forty-fourth Parliament, First Nations leaders came together to create a national Indigenous gaming authority.

These efforts have resulted in a founding memorandum of understanding signed by 15 First Nations communities in support of the previous bill, and now Bill S-241. It is a great start, and it shows how strong the Indigenous gaming communities are in regard to their desire and their capability to exercise economic reconciliation in the way that the bill proposes.

I would like to thank the First Nations people in general and the leadership of the Tsuut’ina Nation, of which one member is here — thank you for coming today, Chief Big Plume — and the Federation of Sovereign Indigenous Nations. They were the initial inspiration for me to take this step on behalf of all First Nations.

I’ll talk briefly about the objective of the bill, and I’ll be happy to answer questions if necessary, but I will try and 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-241 would formalize First Nations’ control of gaming only on-reserve. It would displace provincial control over those activities, including licensing and — here is the tricky part — the appropriation of the profits. The desired outcome is that all activity and profit would be under the control of the 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 First Nations communities involved, and that is what the bill attempts to do.

Here is 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 “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. It’s 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, predate the arrival of and contact with European settlers.

Many First Nations governments entered the gaming industry in the hope and with the expectation of eventually realizing their jurisdiction. They developed infrastructure and expertise in good faith despite an uneven and sometimes unfair relationship with 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 on this issue. Why is that? Why is that in this era of reconciliation? 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 to face competition and innovation and to, ultimately, see less revenue than when they had monopoly. This is what real economic reconciliation looks like.

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, providing resources and jurisdiction in the areas of education, culture, social services and community development, which are all cost centres, by the way.

We’ve provided jurisdiction and resources in all of these areas. We have yet to provide anything in terms of revenue. There is still much work to be done on these fronts, but talk has turned to action, and speaking as somebody who has over an arc of time of many years watched Indigenous matters through the committee, I can say that economic reconciliation is more difficult because it disrupts the status quo. It displaces those 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 paraphrase 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 the bill that will hopefully receive solid study and reflection at the Indigenous Peoples Committee and at the Legal Committee, and I welcome the opportunity for improvement through the committee stage.

I’ll leave my comments here. I’m happy to answer questions. Thank you.

Thank you. I have had the opportunity to have some confidential initial conversations with certain premiers. Everybody will be invited to make their feelings known at the Legal Committee.

I would say that two years ago, I was fairly certain that virtually every province would have a concern because it takes money. The way it works right now is that the provinces control the Indigenous communities if they want to be in gambling. They decide what games will be played. They decide what the split of the revenue will be. They decide who gets what, and it’s wildly different from province to province to province.

I have to say that back then I figured everybody would be against it. I’m less convinced now. I think some provinces will either be neutral or potentially in agreement because there is more movement and a broader recognition of the potential of economic reconciliation and what it means.

We’ll see, but the provinces’ time will come at Legal Committee. We didn’t get the bill there. It was assigned but got stuck in the queue.

We had it at the Indigenous Peoples Committee and finished the study; we just didn’t finish the report. With the passage of time and change in circumstances, it probably warrants some time at the Indigenous Peoples Committee as well, even if they do take all the records in.

To your question, I believe this will be a concern for provinces. It is real money out of their pockets. We’ll have to hear from them about it.

Yes.

You’ve raised the question that is on everyone’s minds and why a number of the First Nations governments got together and said, “We need to develop a self-regulating authority.” This was the major problem that occurred in the United States when the Supreme Court recognized that Indigenous Peoples and communities had the inherent right to operate gaming.

It was a court decision. It was implemented quickly, and it quickly became obvious that a regulatory body had to be put in place, so it was backtracked. Eventually, they developed the National Indian Gaming Commission in the U.S., which provided the regulatory oversight, including with respect to membership or non-membership. In the U.S., they changed the law in Congress to say you either had to be a member of that authority in good standing or you had to be under supervision of the state.

These are the nuances I talked about that we need to deal with at Legal Committee. We need to hear from expert witnesses about this, and we need to hear from the founders of the Indigenous gaming authority as it’s being developed to see what they propose. It is a real concern that must be dealt with in conjunction with this bill.

Will the senator take a question?

Yes.

Thank you. You will recall the last time we discussed this that I raised the issue of Diamond Tooth Gerties in Dawson City, Canada’s first licensed gambling hall. The requirement of their licence is that money has to go back into Dawson City, into the community. Yukon is part of the Western Canada Lottery Corporation. All the revenues are used to fund athletes, the arts and cultural organizations. The money all goes back into the community.

Enter the online gaming, and I keep asking, “Where is that money going?” We’ve seen significant discussions of mental health concerns.

You’ve raised the point that the First Nations gambling and gaming commissions are licensed by the provinces, and there’s a financial structure. What I gather from your speech today is money is going into the provincial coffers; yet the federal government is responsible for First Nations health, for example. There understandably needs to be a reorganization of that money; that makes sense. It might be challenging to reach an agreement on that.

How do online gaming revenues, a possible reduction for First Nations gaming and the issue of reaching memoranda of understanding — to ensure that these monies are coming back into communities to support things like mental health and addiction — factor into the debate of this bill?

There are a number of factors. Across the country, every province has a different formula for how they distribute the profits, not just from Indigenous gaming establishments but also from other private establishments. For instance, Alberta has more private gaming activity. Private operators operate under the jurisdiction of the province, but they operate full casinos.

It is the same in British Columbia. Private operators and Indigenous operators operate under the control of the province. There are many different agreements about where the money goes. None of it goes to the federal government. It all goes to provincial governments, and then the provincial governments decide how they will divide it up.

Some of them give quite generous amounts for Indigenous governments. Some of them give extra profit to an Indigenous government for use on their reserve and appropriate some to sprinkle out to other Indigenous governments across the province. It’s piecemeal province by province.

It became clear to me in some of the early meetings I had with Indigenous leaders that Indigenous governments believe they are the ones to decide where the money goes and that they should be accountable to their own people. If their own people, through own-source revenue and other avenues, have invested large amounts of capital in casinos, hotels, conference centres, golf courses — all centred around gaming — they should be the ones who decide what money, if any, goes to other Indigenous communities versus building roads, schools, hospitals and other infrastructure in their own community.

Those are all live questions best answered by Indigenous governments, but before we can do that, they need the ability to take these matters under their control. They have to assure us all that the public safety and consumer safety questions are being addressed. It is not just Indigenous people going to the casinos; it’s the province and cities writ large, so there must be that level of safety. All those things are active now in the Indigenous gaming community through this coordinating activity that’s been undertaken by some of the leading lights in the Indigenous gaming business.

However, there is more work to be done, and there definitely are issues that I think will lead to amendments that will come out of the Legal Committee, but we have to get it there first. We have to hear from all sides and make decisions from there.

Based on what you just relayed, Senator Tannas, shouldn’t there be a wider discussion? This is focused on the Indigenous gaming situation, but aren’t we at a point in the Canadian gaming industry — you mentioned all the private operators — where we need a much wider discussion on how gaming is distributed and how we ensure the safety and mental health of Canadians?

The issues that we need to talk about, for instance, Senator Deacon’s private member’s bill — and other issues of, as you say, mental health, consumer safety and so on — are issues for everybody, including Indigenous gaming authorities, the province through their online action and private operators — those need to be continued.

Part of this is focused on economic reconciliation. Indigenous gaming has been subject to provincial control. It has been subject to whatever whim the province has had, or ideas that the province has had about what’s fair, with no leverage on behalf of Indigenous governments to negotiate. They are takers. They can only be takers because the monopoly rests with the province.

The bill seeks to level the playing field, allowing Indigenous governments to take control of that. If they wanted to negotiate with the province to stay under provincial jurisdiction, they could do that. They could join a self-regulating authority if they wanted to. All those things are different.

I wouldn’t want to say, well, we should wait for this wide conversation to happen. It will catch. Whatever it is we need to do in the name of public safety and health, we’ll catch whatever operators there are, whether they are the province, Indigenous governments or private operators.