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Bill C-218 - Senator Wells

Hon. Mary Jane McCallum: Senator Wells, Kahnawake’s legal status is based on the assertion of an Indigenous right clearly reconcilable with section 35(1) of the Constitution Act, 1982. From the consultation paper of the Alcohol and Gaming Commission of Ontario, Ontario will assess legal standing solely under the Criminal Code, which currently does not make any provisions for First Nations. This is a narrow interpretation of the law by the province and presents a significant risk. Will this apply to other First Nations if their provinces take the same stance?

For this reason, Kahnawake had asked the Committee on Legal and Constitutional Affairs for a fair hearing and just consideration, but it was sent to the Standing Senate Committee on Banking, Trade and Commerce. Could you comment on that as well? Thank you.

Senator Wells: Thank you very much, senator, for your question. It is an important question.

First, it goes to the question of jurisdiction. As I said in my speech — and I believe I said this in my second reading speech as well — Canada delegated the authority for gaming and the regulations around gaming to the provinces. I understand that the Mohawk Council of Kahnawake has tried, a number of times, to engage in discussions around licensing and gaming with the responsible authority, which is the province.

I mentioned in my speech that I spoke to Chief Sheldon Kent of the Assembly of Manitoba Chiefs and asked him specifically about that. I jotted it down because I thought it was important. He said:

Any consultation should be on the full suite and broader inclusion of First Nations, not just on one line in one bill.

I understand — and I am sure you are aware as well — that our Attorney General and Minister of Justice, David Lametti, has written to First Nations across the country regarding the broad discussion about the inclusion of First Nations, and specifically with regard to section 35.

The other part of your question was about the bill being sent to the Committee on Banking, Trade and Commerce, a committee qualified to examine this issue, and the fact that it did not go to the Legal and Constitutional Affairs Committee. That debate happened here in the Senate and it was the Senate itself that made that decision.

Senator McCallum: If there had been better consultation and collaboration with First Nations, would one bill have been able to accommodate these First Nations — instead of now putting First Nations from Saskatchewan and Manitoba with Kahnawake and other provinces — to better accommodate this instead of now doing an amendment so one First Nation’s viewpoint isn’t excluded at the expense of the others?

We are all aware that First Nations have their own unique governing structures — a right that is referenced by the UN declaration. Why is this bill being passed while consultation is ongoing regarding gaming and First Nations?

Senator Wells: Thank you, Senator McCallum. The audio was not great, but I think I understood your question, namely why is this not being done on a broad scale?

First, the jurisdictional authority for gaming rests with the provinces. In fact, in the case of my province, Newfoundland and Labrador, the province has a partnership with the three other Atlantic provinces and the authority rests under the Atlantic Lottery Corporation.

In relation to consultations with specific groups — or even the encompassing groups in Manitoba, Saskatchewan and Quebec, as you mentioned — I go back to the comment that I heard directly from Chief Kent of the Black River First Nation in Manitoba. Section 35 discussions happen broadly across Canada. I would not dare select three or five or nine provinces to have specific conversations on an item specifically related to section 35, which we recognize is a big part of consultation and inclusion.

I think the broader section 35 discussion rests with Minister Lametti. I know that letters have been exchanged, and those consultations may be beginning or under way. Certainly, an approach has been taken on that. Still, the jurisdictional authority on gaming rests with the provinces and territories.

I think that’s as far as I can go in terms of speaking about something outside the jurisdiction of the federal government, where the Senate rests.

Senator McCallum: There has been documented evidence of provincial interference with the Kahnawake Gaming Commission. Can you confirm that this behaviour will not continue so you can indeed level the playing field for Kahnawake and confirm that other provinces will not do likewise? If it continues with Kahnawake, what are the options that First Nations will have?

Senator Wells: Thank you, Senator McCallum.

Any interference from the provincial authorities to any groups that are participating in gaming, whether approved by the province or not, does not come under the purview of this bill. I’m not sure there are laws involved in that, but because it doesn’t come under the purview of the bill — colleagues, I don’t want this to be overcomplicated in any way. This is a bill that allows single-event sports betting. Any of the structures around regulatory platforms and the operation of gaming in a province is only associated with this bill in a tertiary way but not the focus of this bill.

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