Senator Tannas, there was a question. Had you finished your question, Senator Cotter?

Senator Tannas had begun to answer it. He answered me in private, but I think he might like to provide an answer to it here.

If I remember correctly, you were talking about the deal in Saskatchewan. The deal in Saskatchewan, as I understand it, has an interesting formula that involves a percentage going to the host nation and a percentage going into a pot for all First Nations, and then the non-First Nations casinos, obviously overseen by the province, also contributed into that pot that goes to the benefit of all First Nations, which was a negotiated deal that has some interesting history to it.

The point is this: Our bill would not seek to preserve or to kill that. Our bill recognizes and seeks to affirm the jurisdiction of the communities. They will decide what they will do. If there is a wealth redistribution scheme that needs to happen, they will make that decision. If there’s a wealth redistribution scheme that needs to happen in uranium mining, oil and gas, forestry or whatever, where maybe a community that isn’t close to those resources gets something, they can decide all of those things. We don’t get to decide that and the province doesn’t get to decide that.

It’s probably fair to say that in the province of Saskatchewan — and maybe it was trial and error or maybe it was circumstance — it’s probably the deal that is fairest for host First Nations, and indeed for non-host First Nations. Maybe it will be a model that will run rampant across the country. But that is for those governments to decide, just like wealth redistribution is done in our federation with transfer payments and equalization.

If I may, I have a jurisdiction question, Senator Tannas. The language in the preamble speaks to the inherent right of First Nations and the like, along the lines that Senator McCallum had raised earlier, but the bill is actually structured to be a delegation under the Criminal Code, so I’m curious about that.

Another dimension of this is that the structure of the bill says that when a First Nation gives notice to Canada that it intends to establish a gaming regime on its reserve, that First Nation, for the purposes of gaming, is deemed to no longer be part of the province in which it’s situated. It struck me as a unique provision that First Nations, for certain purposes, are deemed not to actually be part of the province anymore. I wonder if you could speak to those jurisdictional questions.

Yes. They are part of the challenge of reconciliation. It certainly will come across that way in things like child and family social services. It will come that way in education. It will come that way in health. It will come that way in a whole bunch of different areas over the course of time, and it will have to be dealt with.

All we wanted to do, and the simplest thing to do today, was to put Indigenous governments on their reserves where they have jurisdiction in the same position as the provinces. That was the simplest way to do it. There may be, in the fullness of time, other ways in which it could be done. There may be a point when the provinces can’t agree on things and we have to come up with a national gaming scheme. Who knows? But I would not want a new set of soothing words about a “someday, maybe” national gaming program that would include First Nations to get in the way of doing something that’s simple and elegant today.

Senator Tannas, will you take another question?

Yes.

Thank you very much. I appreciate the intent of what you’re trying to do and I’m generally supportive. The details and the consequences are always going to be important, and I know that would be worked on at committee and there are a number of things that may come forward.

I have a couple of questions. I’ll put them all out there so that it’s all in one question. These follow on the questions that have been asked.

First, every province and the First Nations within those provinces have different arrangements at the current time. You seem to be familiar with Saskatchewan; I’m very familiar with Ontario. Like Saskatchewan, the fact is that some of the general revenues that are raised in non-Indigenous casinos are pooled to go back to other First Nations. That’s not something the province has to do, and it’s something that could change as we go forward. I wonder if you’ve looked at that.

Second, has your research brought together the materials about the different schemes that are in place in different provinces? I think it’s important to take a look at that and what the history is. I understand from a quick conversation — I may have this wrong — that Alberta, for example, used to have a pooled fund, the Wild Rose Foundation, I think it was, that was to benefit First Nations in Alberta, and that was done away with by the province. So the action of the provinces, which have often been focused on wanting to see the federal government take its full responsibility with respect to First Nations, are at risk of walking away.

The second thing is that when I was on the Ontario Lottery and Gaming Corporation board, I chaired the social responsibility committee, which was about responsible gambling as well as all of the other social responsibility items, and we won awards many years in a row for the program around safe gambling and prevention for people who were at risk. Does your bill make reference to that being built into the national framework as well?

To your first point, every province has a different scheme, and we did not spend a lot of time analyzing those schemes because we want to get the province out of the way. To the extent that the province takes, in some cases, 70% of the profit and returns a small amount of that, which they decide, to whoever they decide should get it and leaves 15% of the profit with the host community, there are all of these schemes that involve so many percentage points going in all directions. That’s not for us to decide.

In this case, we’re handing over jurisdiction, just like we did with the provinces. There were no conditions. The agreement that transferred this authority to the provinces is about three pages long, and two pages of it is signatures. It was not complicated and it wasn’t fraught with a whole bunch of conditions that the federal government said they wanted to have in the future.

I know it’s risky. I know our reflex is to say that we can’t trust them with this. Well, I’m sorry; we have to. We have to believe that Indigenous governments will get it right. That is the whole point.

On the second issue, which is sort of the same issue, we need to understand. I think the operators understand who their customers are and they have actioned the idea of an Indigenous gaming commission that they would all belong to. It was passed as a motion to begin to build a framework at AFN — Assembly of First Nations — just a few months ago. They are doing the work to put that in place.

They also have the example of the United States. When the rights and jurisdiction were given over, there was some disruption and dislocation, and there needed to be a collective that brought good standards and the right policies together. But again, that is for those nations to decide. This is business that is being conducted on their lands.

We could spend months or years dreaming up all the rules, regulations, conditions and so on that we’d like to place on the First Nations in order for them to take up a right that they assert is already theirs. That’s not what we should do. It’s not what was done with the provinces. We trusted the provinces to come up with the right rules, regulations, schemes, wealth transfers and so on. We need to do the same with Indigenous governments if we believe this.

Just really quickly, Senator Tannas, if you’ll take another question. In the Standing Senate Committee on Indigenous Peoples, we’ve heard extensively of the infrastructure deficit on First Nations communities. I believe it was told to us that it would take 32 years for the government to fund the current infrastructure needs on First Nations. Also, First Nations don’t all have revenue streams, and because they don’t have revenue streams, they can’t borrow money and can’t build the infrastructure they need.

Can you help us understand how this money could alleviate some of the infrastructure issues on-reserve?

Yes. Certainly for the host reserves, this would be a large revenue generator. Chief Roy Whitney of the Tsuut’ina estimates that over the history of the Grey Eagle casino, that community has given the province of Alberta a half of a billion dollars that would otherwise have gone into their community for that kind of infrastructure. It would help with all the programs we are busy giving them and downloading to them.

There’s no question — we’re talking hundreds of millions of dollars a year that would go into those communities for economic activities that are on their reserve where they have invested the capital to make it happen.

Will Senator Tannas take a question?

Until six o’clock, I’m open.

Thank you. I’m going to ask this question without being incredibly familiar with your bill.

In this discussion, I have not heard the situation in the North referenced at all, and the three territories are completely different. In the Yukon, Diamond Tooth Gerties in Dawson City was — to the best of my knowledge — the first gambling hall licensed in Canada. The restrictions on their licence are that a certain percentage of the money raised has to go to improvements, restoration and work in the community.

I’ve also heard you mention this as referencing on-reserve. We don’t have reserves in the Yukon. We have government-to-government relationships. How on earth would this bill fit into the Yukon situation? I have no idea about Nunavut or the Northwest Territories. To the best of my knowledge, they don’t have gambling situations like Diamond Tooth Gerties.

How would you see the North fitting in — in particular, the Yukon — to this legislation?

I mentioned this in my speech, and we didn’t spend a lot of time on the North because there isn’t much going on up there in the gambling world, right? It’s not something, and it doesn’t appear in the Criminal Code — territories are not mentioned. It says “provinces.” It doesn’t say “territories.”

The objectives here are to deal with First Nations gaming on‑reserve where there are, in fact, 30-odd casinos operating today.

To the extent that if there is language we can find that the Northwest Territories, the Yukon or somebody else wants to propose, we would definitely welcome that. However, from what we could tell, it would require something completely different than what is in the Criminal Code and what we’re proposing to do, which is specific to reserves.

Senator Tannas, in light of the fact that Diamond Tooth Gerties has been licensed since long before I was legal to be drinking or gambling there — I was, honest — do you not think that because these special provisions were licensed by Canada and they have worked all these years as tourism and as an economic generator, and because the Yukon also has government-to-government-to-government relationships with First Nations, perhaps it would be worthy of study by your committee or by the group studying this legislation? To that effect, I would not consider proposing an amendment without substantial consultation — to Senator Batters’ point — with the territory and the First Nation governments. It needs to be all three at least.

We are not looking to complicate things any further. I won’t presume whether you could or couldn’t drink in 1985, but these agreements and this devolution happened in 1985. So Diamond Tooth Gerties was likely licensed before things were devolved to the provinces. Is that right?

Either way, it is not part of what is happening in the South with First Nations gaming. There is obviously a federal licence that has been granted somehow, and that’s what’s being operated on. It’s a one-off, and we’re not looking to solve that problem. I’m not even hearing it’s a problem. I’m hearing it’s working wonderfully, so I don’t know why we would want to chase it if there isn’t a problem to fix.

However, what we’re hearing and what we’ve been told is that there is a big problem in the First Nations with the 30 communities that are involved in gaming today. There is a problem with revenue sharing and with one-sided agreements decided by one party, which is the province, with a First Nation who has no choice but to say yes to whatever the deal is.

It is technologically neutral. It doesn’t speak to whether or not a First Nation has the right to make book in Ontario. It doesn’t say it can’t. It doesn’t say it can.

It’s the same problem that the provinces have with each other. It’s the same problem that we have with the Bahamas. It is sovereign governments that don’t know how to protect their own gaming in a world that is the way it is.

Court is probably the best way to go, but this bill will not impact it, positively or negatively — in my opinion and in the opinion of the counsel for drafting — one way or another.

Honourable senators, it is now six o’clock, and pursuant to rule 3-3(1), I am obliged to leave the chair until eight o’clock, when we will resume, unless it is your wish, honourable senators, to not see the clock. Is it agreed to not see the clock?

Honourable senators, leave was not granted. The sitting is, therefore, suspended, and I will leave the chair until 8 p.m.