To provide a background for this conversation, could you please give a broad overview of the regulations governing gaming in Canada and how these intersect with the concept of aboriginal rights? Historically, the government of Canada controlled gaming under its criminal law powers. Gaming was generally prohibited, with the exception of certain charitable events and lotteries offered by the federal and provincial governments. That changed in 1985 when, as the result of an agreement (the ‘1985 agreement’) reached between the federal and provincial governments, the Criminal Code of Canada (the ‘Criminal Code’) was amended to allow the provinces to conduct and manage a wide variety of gaming activities within their respective borders. The government of Canada reserved the right to control horse racing. As consideration for the 1985 agreement, the provinces agreed to pay the government of Canada CAD$100,000,000. Since 1985, every Canadian province has built its own gaming industry – both terrestrial and online – regulated by agencies established for that purpose. The 1985 agreement was a pivotal moment for Canada’s Indigenous peoples and their role in the gaming industry. Although Canada’s constitution had been amended in 1982 to “recognize and affirm” existing treaty and aboriginal rights, Indigenous peoples were not consulted in the context of the 1985 agreement and their rights and interests were not considered in the resulting amendments to the Criminal Code. It should also be noted that in 1985, tribal gaming in the United States was in its ascendancy, providing significant economic benefits to tribal communities in Florida and California. Gaming Law and Canada’s Indigenous Peoples Thought Leader The gaming industry in Canada has brought significant revenue to the provinces and created thousands of jobs, often on foundations created by the country’s Indigenous peoples. In this article we hear from Murray Marshall, legal counsel of the Kahnawà:ke Gaming Commission, as he delves into the shared history of Indigenous peoples and Canadian gaming law and provides a glimpse of how this fascinating sector of law may change further in years to come. 72 LAWYERMONTHLYDECEMBER 2022
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