The topic of First Nations‘ rights to run their own gaming operations has hit the Senate again via the latest version of the Act to Amend the Criminal Code and the Indian Act.
Sen. Scott Tannas’ S-241 seeks to amend the Criminal Code to affirm that the governing body of a First Nation has exclusive authority to conduct and manage and/or license gaming (termed under the Code as “a lottery scheme”) on its lands. It would also alter the Indian Act to allow the First Nation to regulate such gaming.
“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,” Tannas said at the bill’s second reading on Dec. 2.
A First Nation would be required to notify the federal and relevant provincial governments that it intends to conduct and manage gaming “from or within” its reserve, but would not need to seek governmental approval before doing so.
A revived effort, with more input
S-241 is the new incarnation of S-268, which was introduced in 2023 but never progressed beyond the committee stage in the Senate. During its consideration, the Standing Senate Committee on Indigenous Peoples was authorized to examine and report on the subject matter of the bill and provide input.
At the reading last week, Tannas noted that the Indigenous committee held five meetings on S-268 and heard from 16 witnesses.
“Since the introduction of [S-268], we’ve had an enormous amount of response from First Nations communities, both to me and in support of the bill,” Tannas told the chamber. “We have a good start on the study of this particular subject, but there is a lot that remains to be explored at committee.”
Bringing First Nations to the table
Since those talks on the previous version of the bill, 15 First Nations have signed a memorandum of understanding in support of the legislation. Tannas called that “a great start.”
One First Nation body, the Mohawk Council of Kahnawà:ke (MCK), opposed S-268, citing concerns that it may do more harm than good and suggesting that the government has no right to weigh in on the MCK’s gaming authority. However, it supports the new version after further consultations.
Quebec-based MCK previously challenged iGaming Ontario’s regulated iGaming model in court, calling it “illegal and unconstitutional,” and ceased operating its Mohawk Online Limited in the province as part of its opposition. That challenge was dismissed in May 2024 by the Ontario Superior Court.
Talks with provinces underway
Tannas asserted that while successive generations of First Nations have been assured that the federal government is working toward recognizing their rights and jurisdiction of gaming on reserve lands, “it has become clear that nothing is happening.”
“Why is that, in this era of reconciliation?” he asked. “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 a monopoly. This is what real economic reconciliation looks like.”
During readings of S-268, Tannas said he had not consulted with any provincial governments when drafting that bill. He said he has since held some “initial conversations with certain premiers” about the legislation.
The senator acknowledged that provinces may be concerned about losing money from their own pockets, but suggested that the broader recognition of the importance of Indigenous reconciliation means that some provinces would be less opposed than they may have been a few years ago.
“Indigenous gaming has been subject to provincial control, 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,” Tannas told the chamber. “They are takers. They can only be takers because the monopoly rests with the province. This bill seeks to level the playing field.”
Provinces would get the chance to have their say in Parliament on the new version of the bill if it reaches the Committee on Legal and Constitutional Affairs, which the previous iteration did not.
One step on a long road
In response to questions from fellow senators, Tannas admitted that there are numerous political, financial and logistical elements involved with the bill’s proposal. Even though this is the second iteration of this bill, there is a long way to go and a great deal of discussion still to be had.
Even if the bill were to become law, what would happen next is its own question.
Tannas suggested that First Nations could choose to still negotiate with provinces to stay under provincial jurisdiction. Another avenue could be to join a self-regulating authority for their own gaming operations.
“Those are questions best answered by Indigenous governments,” he noted. “But, before we can do that, they need the ability to take these matters under their control.”
