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Bill C-218 - Sports Betting - Third Reading and Amendment

Honourable senators, I rise today to speak to Bill C-218 and to voice the legitimate concerns that have been raised by the Mohawks of Kahnawake. In doing so, I will also be bringing forward an amendment on their behalf, which I will explain in detail below.

Over the past 25 years, Kahnawake has built a successful gaming industry within its territory. They have created revenue that has been used for essential services in their community, most notably, organizations whose mandate is to support language and culture in Kahnawake.

The profits from Mohawk Online, an online gaming venture wholly owned by the Mohawk Council of Kahnawà:ke, have helped Kahnawake during the COVID-19 pandemic. To date, Mohawk Online has contributed $4 million to the Kahnawake Economic Relief Measures Fund.

Gaming in Kahnawake has created opportunities — not just for their own people but for those in surrounding communities.

Kahnawake’s gaming industry is subject to a robust regulatory regime established by the Kahnawake Gaming Commission, known and replicated worldwide.

In a July 2020 meeting with the late grand chief Joe Norton, Minister Lametti complimented Kahnawake on having created a “legitimate gaming architecture that makes Kahnawake world leaders — and it is worth supporting.”

Kahnawake did all of this on the strength of their own jurisdiction, their own resources and their own ingenuity. It is a perfect example of what our Governor General once referred to as “Indigenous genius.”

Kahnawake’s gaming industry is a shining example of an Indigenous community using its own efforts to create economic sustainability. This is something that should also be encouraged and supported by the Government of Canada.

Honourable senators, Mohawk people have engaged in gaming and sports betting since time immemorial. Games of chance and wagering on sporting events, such as lacrosse, are an integral part of the Mohawk culture. Gaming features in Mohawk creation stories and have always been integral to Mohawk culture and to Mohawk relationships with other nations.

For 25 years, the Mohawks of Kahnawake have asserted an “Aboriginal right” — an inherent Indigenous right that is reconcilable with section 35(1) of the Constitution Act, 1982 — to conduct, facilitate and regulate gaming and gaming-related activities within and from the Mohawk Territory of Kahnawake.

Kahnawake has compiled historical evidence and legal opinions that fully support the assertion of its Indigenous right. In 25 years, their position has never been challenged by any governmental agency or authority.

The amendments to the Criminal Code, as they are presently set out in Bill C-218, do not reflect the Mohawks of Kahnawake’s right and threaten the continued economic resilience of their community.

Bill C-218 will amend section 207(4) to remove the prohibition against single-event sports wagering for provinces, but without recognizing Indigenous governments operating legitimate, regulated, well-established gaming on sports events — and in particular, those Indigenous governments that do so on the strength of an Aboriginal right.

Kahnawake takes no issue with the code being amended to allow for this new gaming activity. Kahnawake does, however, take issue with Parliament’s ongoing failure to amend the code to reflect and accommodate the Aboriginal right held by Indigenous communities.

Kahnawake has tried to work with the House and the Senate on Bill C-218. Chiefs from the Mohawk Council of Kahnawake gave a presentation to the House standing committee and to the Senate standing committee and proposed specific language for additional amendments. Their proposed amendments were ignored by the House standing committee, although that committee did agree to add an amendment proposed by the horse-racing industry. It is easy to see how Kahnawake would conclude that, for the House standing committee, horses were more important than Indigenous peoples.

Chief Gina Deer and Chief Ross Montour also submitted Kahnawake’s proposed amendments to the Senate standing committee. Their request for amendments to Bill C-218 were again ignored.

The proposed amendment, which I am now bringing forward on their behalf, will address the injustice the Government of Canada created when, in 1985, it sold the authority to “conduct and manage” gaming to the provinces — without consulting with or considering the interests of Indigenous peoples. The proposed amendment would allow Kahnawake and other Indigenous communities to negotiate their own agreements directly with Canada.

Existing agreements between First Nations and many of the provinces are accomplished through the provisions in section 207(1)(a) and (b) of the Criminal Code. These provisions would remain in place. The proposed amendments simply give Indigenous communities — which historically have been ignored and excluded from the industry at the provincial level — another avenue to negotiate an agreement for gaming and betting.

Kahnawake’s proposed amendments are a perfect example of reconciliation and accommodation in action. It is more than a little ironic that the initiative for this gesture of reconciliation and accommodations comes from a First Nation, not from the Government of Canada.

Honourable senators, advocates of Bill C-218 in its present form often say the bill simply “levels the playing field” by giving provincial lotteries access to the single-event sports wagering market. They insinuate that Kahnawake is objecting to the bill because it wants to preserve its “monopoly” over this market.

These suggestions are false. Bill C-218 will certainly change the playing field, but it will not be level. Why?

The provinces and their agencies restrict any legal interpretation of Kahnawake’s activities to the Criminal Code. They use the fact that Kahnawake’s rights have never been formally recognized to cast doubt over the legitimacy of Kahnawake’s endeavours.

Kahnawake can cite numerous occasions over the past 25 years when provincial lotteries have deliberately interfered with Kahnawake’s ability to forge commercial relationships. Without a formal recognition of its jurisdiction under federal law, provinces will continue to block Kahnawake from routes to market and customers — marginalizing and undermining Kahnawake’s industry.

In a word, without an accommodation in Bill C-218, there will be no “level playing field.” Provincial lotteries will be given free rein to occupy the field, to the exclusion of Kahnawake.

Colleagues, there are those who have suggested that Kahnawake “just keep doing what they have been doing for 25 years.” This suggestion is cynical and disingenuous. Kahnawake has laboured under the cloud of those who have suggested that they have no jurisdiction over gaming and that their gaming operations are “illegal.”

How does it make any sense to suggest that Kahnawake simply continue to operate under this sort of vicious and unfounded stigma? Kahnawake has come to the House and to the Senate with a proposal that would remove that stigma and accommodate their jurisdiction through an agreement or arrangement with Canada. Isn’t that what we want to see?

Over the past 25 years, Kahnawake has built a successful socio-economic gaming industry, despite having the dark cloud of legal uncertainty hanging over their heads. Imagine what this community — and many other Indigenous communities in Canada — could do if that cloud were to be lifted.

Honourable senators, some of you have suggested that Canada has no role in gaming — that it is a “provincial matter” and therefore “outside federal jurisdiction.” This is not correct.

The Supreme Court of Canada has held that gaming is a matter that falls within the “dual aspect” doctrine. Accordingly, gaming can be subject to legislation by both the federal and provincial governments. Parliament has jurisdiction to legislate regarding the criminal aspect of gaming, and the provincial legislatures have the jurisdiction to regulate the property and civil rights aspects of gaming.

In fact, until it sold the authority to “conduct and regulate” gaming to the provinces...

It is cynical and disingenuous for Canada to say we sold the authority over gaming to the provinces in 1985 and now there’s nothing we can do.

We as senators must recognize the errors of the past and do our best to correct them. Why are we even considering the approval of a bill that will destroy the economy of one of Canada’s largest First Nations when a simple solution has been provided to us? We have a chance here to embrace Kahnawà:ke and other Indigenous communities under the law, but if we do not include the proposed amendment we are instead choosing to push them away, forcing them to remain in a legal no-man’s land.

Motion in Amendment—Debate

Therefore, honourable senators, in amendment, I move:

That Bill C-218 be not now read a third time, but that it be amended in clause 2, on page 1, by replacing line 5 with the following:

“2 (1) Subsection 207(1) of the Criminal Code is amended by adding the following after paragraph (a):

(a.1) for an Indigenous council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982 to conduct and manage a lottery scheme under an agreement or arrangement with the Government of Canada;

(2) Paragraph 207(4)(b) of the Act is re-”.

Thank you, senators.

The Hon. the Speaker: Ordinarily we would move to debate on that amendment now. The table has noted that Senator McCallum has time, and Senator McPhedran has a question.

Senator McCallum, would you accept a question?

Hon. Marilou McPhedran: In your speech, Senator McCallum, you referenced the fact that the province has been interfering with the Kahnawà:ke Gaming Commission. Can you give examples of that interference?

Senator McCallum: Yes, I can. Thank you for the question.

With Mohawks of Kahnawà:ke Online and Evolution Gaming, in 2015 an online casino soft supplier Evolution Gaming launched its products on Mohawk Online, a socio-economic online gaming website across Canada. Evolution described the launch as a groundbreaking deal. Evolution’s games proved popular with Canadian customers and quickly became a significant source of income for Kahnawà:ke.

In April 2017, Evolution entered an agreement to provide its products to the British Columbia Lottery Corporation, BCLC. Evolution then informed Mohawk Online that BCLC had instructed them to withdraw their products from Mohawk Online’s website based on a general rule that under the Canadian Criminal Code only provincial governments may operate online gambling.

Mohawk Online’s previously accepted legal opinions and arguments were dismissed and Evolution’s games were withdrawn, causing significant financial losses to Kahnawà:ke.

Mohawk Online later discovered that BCLC was allowing Evolution to continue to supply games to offshore operators targeting Canada, including only Mohawk Online. Mohawk Online has been singled out by BCLC. The lottery had applied commercial pressure on Evolution to dismiss Kahnawà:ke’s legal arguments and focus solely on the absence of any mention of First Nations under the Criminal Code.

Once BCLC’s exclusion order ensured that Mohawk Online had lost the games, customers and revenues, Evolution was free to continue supplying games both to BCLC and the offshore industry targeting Canada, regardless of the status of offshore operators under the Criminal Code.

In 2016, Mohawk Online approached casino games supplier NetEnt about carrying their games on its website. NetEnt told Mohawk Online that the provinces would not appreciate NetEnt having any connection to companies with a tie to Kahnawà:ke. NetEnt supplies products to both the provincial lotteries and offshore operators targeting Canada. Only the absence of any mention of First Nations under the Criminal Code is used to force lottery commercial partners into not supplying Mohawk Online. Neither the lotteries nor their commercial partners are interested in respecting or enforcing the Criminal Code. It is simply being used as an anti-competition mechanism.

Over the past 20-plus years, at least four testing agencies discontinued their relationship with Kahnawà:ke Gaming and they declined to provide service, citing pressures from provincial authorities.

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