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Bill S-268: An Enormous Change Proposed For Canadian Gaming and Indigenous Peoples

Gaming and betting laws in Canada have seen big legal reforms in recent years. Ontario’s regulated iGaming regime launched on April 4, 2022, allowing for private iGaming operators and gaming related suppliers to register with the Alcohol and Gaming Commission of Ontario in order to provide iGaming products to residents of Ontario. Just the year before, single-event sports betting became legalized on August 27, 2021. Now more gaming legal reforms are underway, including Bill S-268. The Canadian legal gaming landscape and laws recognizing Indigenous rights are about to undergo a potentially enormous change if Bill S-268, titled “An Act to amend the Criminal Code and the Indian Act”, becomes law.

The Bill, put forward by Senator Tannas, seeks to amend the Criminal Code of Canada in order to provide the governing body of a First Nation with “exclusive authority to conduct and manage a lottery scheme on its reserve and to license the conduct and management of a lottery scheme by other persons and entities on its reserve”, so long as the government body of that First Nation provides notice of its intention to do so to the government of Canada and the government of any province in which the reserve is located. The Bill seeks also to amend the Indian Act to grant the council of the band authority to make bylaws regarding the operation, conduct, and management of those proposed lottery schemes.

Bill S-268 completed first reading on June 20, 2023.

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Current Status Quo

Currently, the Criminal Code of Canada makes iGaming illegal in Canada unless the iGaming activity is conducted and managed by a provincial government, subject to some exceptions. In order to stay on-side of the Criminal Code provisions outlawing iGaming generally (and on-side of the constitutional authority granted to the Provinces under our Constitution), the Provinces must be the operating mind of the iGaming activity. Any lottery schemes in Canada must, therefore, be conducted and managed by a provincial government.

The Provinces have jurisdiction to pass gaming legislation to govern gaming within that province, such as B.C.’s Gaming Control Act and Regulations. However, the Provinces are currently required to conduct and manage all gaming activities offered, and must take on a conduct and management role even in partnerships with offshore gaming operators such as those in Ontario’s new iGaming regime.

Bill S-268, therefore, would end the Provincial governments’ effective monopoly on the conduct and management of lotteries in Canada.

Preamble

Although preambles aren’t enforceable laws in and of themselves, the Bill’s preamble is important in that it outlines the legal basis for the proposed changes. It states that:

“Whereas Parliament recognizes the Inherent and Treaty rights of Indigenous peoples, including their rights to their lands, to self-determination and of self-government;

Whereas these Inherent and Treaty rights encompass the right of Indigenous peoples to regulate activities such as gaming, betting and lotteries on their lands;

Whereas the Government of Canada is committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples, which emphasizes the urgent need to respect and promote the Inherent and Treaty rights of Indigenous peoples of the world;

And whereas the protection of Aboriginal and Treaty rights — recognized and affirmed by section 35 of the Constitution Act, 1982 — is an underlying principle and value of the Constitution of Canada;”

In other words, the Bill isn’t suggesting that Canadian lawmakers give Indigenous peoples new rights, but rather suggests that Indigenous peoples already have inherent and treaty rights to regulate activities such as gaming, betting, and lotteries on their lands. Only time will tell what further impact this wording would have on Canada’s legal frameworks regarding Indigenous peoples should Bill S-268 become law.

Although the Bill states that its proposal is based on existing inherent and treaty rights of Indigenous peoples, it still requires that First Nations provide notice of their intention to exercise those rights before exercising them. The Bill does not, however, give explanation as to why First Nations should need to provide Canadian and provincial governments prior notice.

Proposed Criminal Code and Indian Act Amendments

The proposed amendments allow for “a governing body of a First Nation or such other person or authority as may be specified by the governing body, either alone or in conjunction with the governing body of another First Nation or such other person or authority as may be specified by the other governing body, to conduct and manage a lottery scheme on that First Nation’s reserve, or on that First Nation’s reserve and the other First Nation’s reserve, in accordance with any law or by-law enacted by the governing body of that First Nation”. This gives First Nations flexibility in shaping how lotteries on reserves will be conducted and managed.

The amendments also cover charitable gaming licenses, fair or exhibition gaming, amusement park lotteries, and terms and conditions of licenses.

The Future of Gaming in Canada

The Canadian government has an ongoing responsibility to further reconciliation between Canadians and Indigenous peoples. According to the Truth and Reconciliation Commission’s 94 Calls to Action, the Canadian government must fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation. Recognizing inherent and treaty rights of Indigenous peoples is central to this. Every industry in Canada, including the gaming industry, must therefore prepare for an increase in proposed laws such as Bill S-268.

If you have questions about the Bill or would like to discuss how these changes may impact your business, our Gaming and Gambling team would love to hear from you. Please do not hesitate to contact us at 1-800-604-1312 or https://segevllp.com/contact-us/

Disclaimer

***The above blog post is provided for informational purposes only and has not been tailored to your specific circumstances. This blog post does not constitute legal advice or other professional advice and may not be relied upon as such.**