Murray Marshall is the legal counsel for the Kahnawake Gaming Commission. He discusses the history of Indigenous peoples in Canada and the law that governs them. This article gives us a glimpse into how this fascinating area of law might change over time.
Please give us a brief overview of Canada’s gaming regulations and how they relate to the idea of aboriginal rights in order to provide background.
Gaming was controlled by the Canadian government under its criminal law powers. Gaming was generally forbidden, except for certain charitable events or lotteries offered to the federal and provincial governments.
This changed in 1985, when the federal and provincial governments reached an agreement (the “1985 agreement”) to allow the Criminal Code of Canada (the “Criminal Code) to allow provinces to manage and conduct a variety of gaming activities within their borders. The Canadian government reserved the right to regulate horse racing. In exchange for the 1985 agreement the provinces agreed that they would pay CAD$100,000,000 to the government of Canada.
Every Canadian province has had its own gaming industry since 1985. It is both online and terrestrial. The agencies responsible for regulating it are established by the government.
The landmark 1985 agreement was pivotal for Canada’s Indigenous Peoples and their participation in the gaming industry. While Canada’s constitution was amended to “recognize, affirm” existing treaty rights in 1982, Indigenous peoples weren’t consulted. The resulting amendments to Criminal Code did not consider their rights or interests. Not to be forgotten, in 1985, tribal gambling in the United States was thriving, bringing significant economic benefits for tribal communities in California and Florida.
The 1985 agreement didn’t consider an Indigenous role in Canada’s gambling industry, despite compelling legal reasons. An Indigenous community can choose to be part of Canada’s gaming industry since 1985. It has two options: either ask a provincial government for a voluntary share of its gaming revenues and responsibilities, or it can exercise its inherent jurisdiction and create its own gaming industry.
Every Canadian province has had its own gaming industry since 1985. It is both online and terrestrial. The agencies responsible for regulating it are established by the government.
Many Indigenous communities have reached agreements with their provinces to share gaming revenue. Each agreement is unique to the province in which it was signed and the Indigenous peoples living in that province. This has created a patchwork of uneven agreements across Canada. Quebec is the only province to refuse to sign an agreement to share gaming revenues with Indigenous peoples.
Kahnawa-ke is one of few Indigenous communities to have built a gaming jurisdiction based on its Indigenous jurisdiction. Kahnawa.ke was the only option available, as it is in Quebec.
The Kahnawa-ke Gaming Law was enacted by the Mohawk Council of Kahnawake (the ’MCK’). This law,, created and empowered the Kahnawa-ke Gaming Commission KGC. The KGC passed its “Regulations Concerning Interactive Gaming” in 1999 and began licensing and regulating online gambling operators. All operators licensed by KGC had to (and still have) be hosted at MIT. MIT is an ISP/DC located in Kahnawa:ke. Continent 8 Technologies plc manages MIT, which is owned and controlled by the MCK.
The online gaming industry in Kahnawatke grew quickly. Desjardins Securities published a 2005 report that estimated that “Over one-fifth of the 500 top online casinos are based in this area”. Around 2007, four land-based poker venues were opened in Kahnawa:ke. Each one is licensed and regulated under the KGC. Playground Poker hosts some of Canada’s largest poker events, with 75 tables. Kahnawa-ke’s terrestrial gambling industry has recently been supplemented with over 1000 electronic gaming devices.
Kahnawa-ke has filled the gap created by Quebec’s refusal of sharing any portion of its gaming industry with Indigenous peoples over the past 25 years. Kahnawa:ke, rather than being shut out, has created its own profitable, well-regulated, online and terrestrial gaming business, which has generated substantial revenue for the community, and created hundreds of new jobs for Kahnawa:ke residents and those from surrounding communities.
Kahnawa-ke is one of few Indigenous communities to have built a gaming jurisdiction based on its Indigenous jurisdiction.
No governmental agency has ever challenged Kahnawaike’s authority to regulate, facilitate, and conduct gaming.
Referring to the 1985 agreement in April 2021 David Lametti, Minister and Attorney General of Canada, wrote an open letter asking for the views of all Indigenous communities, nations and organizations on the “participation by Indigenous peoples within the gaming industry and regulation of that industry throughout Canada”. Minister Lametti’s letter does not mention the consultations.
What are the main advantages of an online casino operator being able to locate in Kahnawa?ke?
Kahnawa.ke is one the most respected and oldest online gaming jurisdictions. KGC has established a strong and respected gaming environment, giving players the confidence they can trust sites licensed by them. KGC licenses operators in a thorough manner, but is sensitive to their budgets and timeframes. Operators who are licensed by the KGC have access to the state of the art facilities provided by MIT.
Kahnawa:ke is an Indigenous jurisdiction and does not charge any tax for the operation of KGC licensees.
Kahnawa:ke is located 20 minutes from Montreal and offers easy access to all the technological and human resources in a large, bilingual, cosmopolitan city.
Are you expecting to see major case law or regulatory developments in Canada’s gaming industry in the next year?
All eyes in Canada are currently on Ontario and its recent iGaming Initiative. Ontario is Canada’s most populous provincial and accounts for approximately half of Canada’s online gaming market. iGaming Ontario (or ‘iGO’) officially launched on April 4, 2022. However, there was some controversy.
All gaming services in Ontario used to be provided by the Ontario Lottery and Gaming Corporation (“OLG”). Ontario is the OLG’s owner and operator. This follows the same model as all other provinces. It has been clear that OLG’s operations are in compliance with paragraph 207(1)(a), Criminal Code. “It is legal…for the government…to conduct or manage a lottery program in that province …”
Ontario, however, has taken a completely different path with iGO – which could lead to legal ambiguities.
iGO is a subsidiary of The Alcohol and Gaming Commission of Ontario. The AGCO regulates and licenses gaming in the province of Ontario. The iGO will not be able to ‘conduct and manage’ online gaming operations. Instead, it will make agreements with third-party private online gaming operators. AGCO will register these operators.
The Office of the Auditor General of Ontario issued a December 2021 report entitled “Internet Gaming in Ontario” warning that the new model of Internet gaming by the Ontario Government is very similar to the licensing models used in other countries. The proposed model for Ontario is different in Canada and could be challenged under Canada’s Criminal Code. Similar observations have been made by other legal commentators. The possibility exists that Ontario’s iGaming program will be subject to a judicial test. This test is likely to have a significant impact on the future direction of iGaming across other provinces.
Murray MarshallPO Box 720, Kahnawa:ke, QC, J0L 1B0, CanadaTel: +1 450-632-7500Fax: +1 450-638-5958E: [email protected]
Murray Marshall is a Canadian lawyer who has been practicing for more than 34 years. He has been called to the Bar in Alberta, Quebec, and Ontario. Murray has represented many Indigenous individuals, businesses and government entities. His practice is always focused on Indigenous issues. Murray has represented his clients in every court in Alberta, Canada (the Federal Court of Canada) and Canada (the Supreme Court of Canada).
Since 1996, Murray was the Kahnawa-ke Gaming Commission‘s legal counsel and advisor. In 2009, he was appointed General Counsel to that Commission. He created the legal framework for Mohawk Internet Technologies’ (‘MIT) in 1998 and drafted the Regulations Concerning Interactive Gaming’ as well as the Regulations Concerning Poker Rooms’.