Supreme Court dismisses case of gaming rights

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The Supreme Court of Canada has quickly dismissed an appeal case on Native gaming rights and, in the process, cast serious doubts on the future of Aboriginal self-government.

The highest court in the land unanimously dismissed the gaming case on Feb. 26 without hearing arguments from the federal and provincial governments. The case, which was scheduled to last two days, was thrown out after only a half-day of arguments from lawyers representing Native bands and organizations.

The case involved members of the Shawanaga and Eagle Lake bands of northern Ontario, who appealed to the Supreme Court after the Ontario Court of Appeal upheld their conviction on gaming charges.

The issue of gaming has been simmering for the past few years. Provincial governments have a legal monopoly over gambling operations, which gives them the power to decide who can set them up, how large they are and who gets the proceeds.

Several Native bands across Canada have challenged that monopoly by setting up their own gambling operations in defiance of the current law, resulting in numerous raids by police. The bands say it is more than just a fight over money.

"It's not about gaming, it's about jurisdiction and economic self-determination," said Terrance Nelson of the Roseau River reserve in Manitoba, which has been raided by police three times since 1993.

"They're justifying going in there and using the Criminal Code to criminalize our economy," he added.

Clayton Ruby, one of the most noted defence lawyers in Canada, argued the case was not a question of criminal law, but an issue of "Constitutional jurisdiction" and "the collective sovereignty of Aboriginal peoples."

He said the Constitution gives First Nations the right of "internal self-government," allowing them to decide what type of activity takes place on their land and how to use the resources from that land for their collective good.

Other lawyers representing the bands argued that the Aboriginal right to economic self-determination through hunting and fishing is protected under the Constitution. Since many Native communities see gambling as one of the only ways to assert their economic survival, that same Constitutional protection should apply to gaming activities, is their position.

They also urged the court to follow the American model and allow gaming on reserves after consultation with Native people. In 1987, the U.S. Supreme Court upheld the right of American Native nations to pursue self-sufficiency through casino operations.

As is customary at the Supreme Court of Canada, the justices gave no explanation for dismissing the case, but will outline their reasons in a written judgment to be released later. The general attitude of the judges toward the case was easily apparent, however. They shied away from arguments that Native self-government is provided for in the Constitution. They were also unreceptive to the idea that Aboriginal Constitutional rights would allow a judgement that would override the jurisdiction of the Criminal Code in certain situations like gambling.

The impact of the dismissal on other Native gaming cases remains uncertain until the written ruling is released. Only then, when the judges outline the points of law and judicial reasoning used to reject the appeal, will a possible precedent be set for future and pending cases.