Mr. Chair, thank you for the opportunity to be here today to participate in your study. I'm here for the Department of Justice because the Criminal Code anchors federal legislative engagement in gaming by providing the space for provinces and territories to conduct and manage that activity.
Indigenous access to revenue from gaming can be an element of economic reconciliation. While the present legal structure gives flexibility to provinces and territories to determine appropriate models for this issue with indigenous peoples, we recognize that some would prefer a different legal structure. That may form part of your consideration on this issue. I'm not in a position to express a view on any alternatives, but I hope to provide you with information to assist you.
I will provide an overview of how gaming regulation has evolved in Canada over time, as well as a snapshot of the current regulatory framework as it relates to indigenous peoples.
Legislating against gaming under English law dates back to the 14th century. The Parliament of Canada, following those traditions, first adopted general prohibitions against gaming into the Criminal Code in 1892. In 1969, the Criminal Code was amended to allow the federal government, along with provincial governments, to conduct and manage lottery schemes. However, this resulted in a system that created competition and conflict between the federal and provincial lottery systems. To resolve that conflict the federal government entered into an agreement with the four provinces in which the federal government agreed to withdraw from the sale of lottery tickets, and provincial governments agreed to provide yearly payments to the federal government in exchange. The agreement with the provinces, finalized in 1985, is reflected in section 207 of the Criminal Code.
The only aspect of gaming that the federal government continued to exercise regulatory control over is horse racing. Otherwise, provinces and territories were left to create regulatory frameworks for gaming within the broad discretion that the Criminal Code provided.
The existing framework stayed largely the same until 2021, when former Bill C-218 amended the Criminal Code and removed the prohibition against single-event sports betting. As a result, provincial and territorial governments gained the ability to include single-event sports betting in their gaming regimes.
Throughout the federal legislative history of gaming in Canada, indigenous governments were not substantially engaged or consulted, nor were they given any federal legislative authority to conduct or manage gaming on their lands. The Criminal Code vested that authority solely with provincial and territorial governments. Provinces and territories have generally provided some scope for indigenous governments either to be directly involved in gaming or to receive economic benefits from the resulting revenue. The extent of the involvement varies across jurisdictions.
Many provinces have authorized indigenous governments or the entities they control to operate some casinos and other forms of gaming and to retain the profits. Some other provinces have revenue-sharing agreements for gaming revenue. While the ability of indigenous governments to exercise regulatory control over gaming operations varies, the ultimate legal control under the Criminal Code rests with the provinces.
The inability of indigenous governments in the present legislative structure to operate independently is, understandably, a source of dissatisfaction to some.
As the committee is likely aware, Bill S-268 was introduced in the Senate by Senator Scott Tannas in June 2023. The bill proposes to amend the Criminal Code to permit a governing body of a first nation to conduct and manage a lottery scheme on that first nation's reserve, effectively giving it the same jurisdictional powers as the province. The bill is currently at second reading.
Apart from Bill S‑268, there have been calls for reform by various indigenous governments. For example, the Mohawk Council of Kahnawake, which operates the Kahnawake Gaming Commission within its territory, has openly called for reform.
Although, as mentioned, many indigenous governments share in gaming revenue from the provinces, we recognize the benefits that increased participation—and revenue—could provide.
In the United Nations Declaration Act Action Plan, the federal government has committed to advancing discussions on the participation of indigenous peoples across Canada in the gaming industry and its regulation, collaboratively with provincial and territorial partners. While those discussions have not yet led to clear forward paths, we are hopeful we can look to a more collaborative future.
Thank you for your attention. I am now ready to answer your questions.