Honourable senators, I rise today to speak to Bill S-268, An Act to amend the Criminal Code and the Indian Act.

Senators, this bill seeks to amend the Criminal Code of Canada in order to provide the governing body of a First Nation, or IGB:

. . . exclusive authority to conduct and manage a lottery scheme on its reserve and to license the conduct and management of a lottery scheme by other persons and entities on its reserve . . . .

This is as long as the IGB provides notice of its intention to do so to the federal and provincial governments where the reserve is located. The bill also seeks to amend the Indian Act to grant the council of the band authority to make bylaws regarding the operation, conduct and management of those proposed lottery schemes.

In Canada, commercial gaming is regulated at both provincial and federal levels. Federal law prohibits specific types of gaming under the Criminal Code, while provincial law regulates permissible types of gaming. This division was established by the Constitution Act, 1867.

Gaming regulation and legislation is unique to each Canadian province. They have the jurisdiction to pass gaming legislation to govern gaming within that province, such as B.C.’s Gaming Control Act and regulations, Saskatchewan’s Alcohol and Gaming Regulation Act, 1997, or as in Ontario’s regulatory scheme, which is a combination of the Gaming Control Act, 1992 and the Ontario Lottery and Gaming Corporation Act, 1999.

Provinces are currently required to conduct and manage all gaming activities offered and must take on a conduct and management role, even in partnerships with offshore gaming operators such as those in Ontario’s new igaming regime. Provinces cannot unilaterally amend the Criminal Code of Canada to change who may conduct and manage gaming in Canada because the Criminal Code is federal legislation.

The Criminal Code of Canada makes gaming and betting illegal in Canada unless the gaming activity is conducted and managed by a provincial government, subject to some exceptions. In order to comply with the provisions found within the Criminal Code, any lottery schemes in Canada must be conducted and managed by a provincial government. Therefore, as the law currently stands, even on their own reserve lands, First Nations currently cannot offer gaming products like lotteries without them being conducted and managed by a province.

Bill S-268 would end the provincial governments’ effective monopoly on the operation and management of lotteries in Canada.

Senator Scott Tannas said in his sponsor speech that Bill S-268 was primarily about two things: recognizing First Nations self‑determination to manage gaming on their territory, and a means to economic reconciliation. I would like to congratulate Senator Tannas on his maiden sponsor speech, and I look forward to his further interventions at committee.

As Senator Tannas pointed out, Bill S-268 has the potential to generate enormous wealth for First Nations. The bill is also about fostering dignity, self-determination and cultural resurgence. When Indigenous peoples have control over their economic destiny, they can revitalize their languages, traditions and ways of life. Economic empowerment strengthens communities and enhances their capacity to address social challenges, from housing and health care to education and youth empowerment.

While Bill S-268 has potential to bring benefit, there are questions and concerns that must be — and I’m sure will be — examined at the committee stage by our very capable committee.

There are a number of questions that I will be seeking clarification on. For instance, details are scant surrounding what a gaming regime administered or operated by a First Nation would look like if Bill S-268 passes. Details regarding a gaming regulator for First Nations, including whether there will be a central Indigenous regulator, are unknown. What will cooperation among First Nations look like in this context? What kinds of resources will be required, and how or will they even be pooled and shared?

Under clause 1(5)(e), First Nations would be offering “. . . lots, cards or tickets in relation to a lottery scheme that . . . may be sold in the province . . . .” Would First Nations cooperate with provincial gaming corporations or compete with them? If this is the case, would provinces and gaming licence holders have a duty to consult with First Nations who they may be potentially competing with?

Would the gaming activities proposed in Bill S-268 include the right to conduct online gaming? Could First Nations take bets from a player located off-reserve, in another province or in another country, so long as the lottery scheme is conducted and managed on-reserve?

While the preamble of the bill refers to “Indigenous peoples,” Inuit and Métis are potentially excluded from this bill. As we all know here in this chamber, there is a distinction among First Nations, Métis and Inuit. “First Nation” refers to a group of Indigenous peoples that the Canadian federal government officially recognizes as an administrative unit under the Indian Act, or that functions as such without official status. The term excludes Inuit and Métis peoples.

Although the bill recognizes the inherent and treaty rights of all Indigenous peoples, the bill proposes providing the governing body of a First Nation with the exclusive authority described above. If an Inuit or Métis Indigenous governing body wishes to create a lottery scheme, does the lack of reserve lands prohibit their involvement? Or do land claims and self-government agreements take precedence, thereby creating an unfair playing field, particularly in the case of Inuit peoples? We must ask these questions because the bill clearly isn’t suggesting that these are new rights, but are, in fact, inherent rights of all Indigenous peoples.

In Saskatchewan, following the Bear Claw Casino acquittals, the provincial government and the Federation of Sovereign Indigenous Nations, or FSIN, entered into an agreement where the Saskatchewan Indian Gaming Authority, or SIGA, was created as a non-profit to operate six casinos in the province. Income from SIGA profits is divided, with 50% going to a trust for Saskatchewan First Nations, 25% going to the province and 25% going to community development where the casinos are located.

In my province of British Columbia, First Nations and the provincial government reached a 25-year deal in 2018 to create the BC First Nations Gaming Revenue Sharing Limited Partnership to support a long-term source of funding in order to invest in their communities’ priorities. Under the deal, 7% of the British Columbia Lottery Corporation’s net income will be shared with First Nations.

What happens to these agreements and others across Canada? And more importantly, what happens to the charitable and non‑profit organizations that depend on these funds?

Many provincial lotteries allocate a portion of their revenue to support charitable organizations and community initiatives. These funds are often directed toward health care research, education programs, sports development, cultural events and other worthy causes, benefiting society as a whole. Will the money generated from the changes proposed in Bill S-268 continue this long tradition in Canada? In recognizing Indigenous rights to self-determination, that will be determined by the First Nation, but does this open up an unfair advantage to gaming operations that are not required to put profit back into the community?

Will we see casinos open across the country that rescind health bylaws on smoking, like we see in casinos on reserves operated under SIGA in Saskatchewan? Will drinking laws be changed? Does Bill S-268 perpetuate an unfair advantage for First Nations‑operated casinos across the country?

I am not sure what the answers to all these questions may be. Bill S-268 needs a full review at committee, where experts in the field of online and conventional gaming can tell us their thoughts.

We need to hear from First Nations who are for and against the bill, and we need to hear from health authorities, charitable organizations, the provinces and legal experts about the ramifications of Bill S-268.

It is our duty as parliamentarians to vet the legislation before us, and I look forward to that opportunity at committee.

Thank you, colleagues.