Context

In 1985, Eagle Lake First Nation, located near Dryden, Ontario, passed a resolution to authorize gaming operations on their reserve. Two years later, another Anishinaabe (Ojibwa) First Nation, Shawanaga, located south of Eagle Lake, northwest of Parry Sound, passed a similar resolution. High-stakes gaming, including “monster bingos,” generated tens of thousands of dollars that helped to pay for a variety of on-reserve improvements. Gaming operations also created new jobs for people living on the reserve.

In the case of Eagle Lake First Nation, the Ontario Lottery Corporation (OLC) and the Ministry of Consumer and Commercial Relations warned of a need for a gaming licence. Similarly, in the case of Shawanaga First Nation, the OLC and Ontario Provincial Police warned of a need for a gaming licence. Both First Nations argued that they did not need a licence because their right to self-government — which they believed included the right to control gaming operations and other financial activities on the reserve — was protected by section 35(1) of the Constitution Act, 1982. The First Nations believed that the right to gaming was similar to Indigenous rights to hunt and fish. (See also Rights of Indigenous Peoples.)

Chief of Shawanaga First Nation, Roger Jones, and a councillor who would go on to become chief, Howard Pamajewon, were both charged with gaming contrary to section 201(1) of the Criminal Code. Although this case is commonly referred to as the Pamajewon case, it was initially known as R. v. Jones and Pamajewon.

Three representatives of Eagle Lake First Nation were also charged with violating a section of the Criminal Code — 206(1)(d) — in regards to illegal gaming operations. Although the Eagle Lake case (known as R. v. Gardner, Pitchenese and Gardner) was initially independent of the case against Jones and Pamajewon, the two cases eventually merged and are commonly known as the Pamajewon case.

Court Cases and Rulings

In early 1993, the Ontario Provincial Court in Sudbury convicted Jones and Pamajewon of the charges laid before them and fined each of them $1,500. The provincial court justice rejected Jones’ and Pamajewon’s defences — namely that their right to gaming centred on the right to self-government. In their own case later that year, the Eagle Lake representatives were also convicted of their charges and received the same fine.

The two First Nations appealed these rulings and decided to join forces, bringing one case before the Ontario Court of Appeal. They argued that, as titleholders of their land, they had a right to control the economies of their reserves. This economic right was protected not only by the Constitution Act, 1982, but by Treaty 3 (for Eagle Lake) and by the Robinson-Huron Treaty (for Shawanaga). (See also Indigenous Peoples: Treaties.) The right to control their economies, the First Nations argued, is but one part of their overall right to self-government.

Justice Osborne presided over the appeal court during the case and ruled that while Indigenous peoples have certain rights attached to the lands over which they have title, this does not give them the right to use the land in any way they wish. Adopting the views of Justice Macfarlane of the British Columbia Court of Appeal in the Delgamuukw case, Osborne concluded that there had to be evidence that high-stakes gaming was in some way “integral to the distinctive culture” of the Anishinaabe before the arrival of Europeans. He found no evidence to support this theory. Moreover, Osborne determined that such a right would have been “extinguished” (i.e., overturned) by the Criminal Code — a decision that the Supreme Court of Canada would later dismiss. Although Osborne sympathised with the First Nations’ desire to create economic opportunities on their reserves, he upheld the convictions of the provincial courts.

Pamajewon and the other appellants took their case to the Supreme Court of Canada. The court dismissed the claim that the First Nations had a right to gaming as part of their overall right to manage their lands. The court ruled that, as per the Van der Peet case, “in order to be an aboriginal right an activity must be an element of practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.” While the judges were presented with evidence of gaming in Anishinaabe culture, they did not find that these practices were of central significance to the culture. Therefore, the Supreme Court ruled that the right to self-government did not entitle Eagle Lake and Shawanaga to the right to high-stakes gaming. Due to lack of evidence of significant historical gambling in these First Nations, the court did not rule on whether section 35(1) of the Constitution Act, 1982, includes an inherent right to self-government.

Outcome and Significance

Since the Pamajewon case, the Canadian government has recognized the Indigenous right to self-government, mainly through the negotiation of treaties.

Critics of the Pamajewon ruling have argued that the Supreme Court’s judgment only continued to define Indigenous societies and practices as things of the past as opposed to evolving entities. The ruling, critics argue, also supports a narrow understanding of Indigenous sovereignty, as defined by the Van der Peet case.

On the other hand, because the Supreme Court did not hand down a decision about whether section 35(1) of the Constitution Act, 1982 includes a right to self-government, the court left open the possibility for another First Nation to argue that they have an inherent right to gaming.

While this has yet to happen, some First Nations in Canada continue to own and operate gaming centres on reserves, in accordance with provincial regulations. Some provinces, such as Ontario and Manitoba, share the revenue of the gambling profits with the First Nation(s) in question, while others, such as British Columbia and Québec, have more restrictive revenue-sharing policies.

Indigenous-controlled online gambling operations have yet to be tried before a court in Canada, but there are First Nations that have ventured into this field, including White Bear in Saskatchewan and the Mohawks of Kahnawake in Québec.