Chief Kelly LaRocca of MSIFN claims that Ontario's iGaming privatization plan violates Section 35 of the Canadian Constitution

Mississaugas of Scugog Island First Nation Vows To Challenge Ontario Online Gambling

Ontario has had a rocky road to launching its iGaming market, and it could become even more complicated.

Mississaugas of Scugog Island First Nation (MSIFN) have claimed that the Ford government’s approach to online gambling is unconstitutional. This is because of what they say is a lack of consultation between the province and their community.

The Ford government is attempting to regulate, improve, and develop what is currently a gray market. However, the wording of the relevant federal law is just as gray. This has led to significant delays in the regulatory effort, but iGaming Ontario recently announced an official launch date of April 4.

It now seems that they’ll be facing a legal challenge from day one.

Constitutional requirement for First Nations consultation

Section 35 of the Canadian Constitution recognizes and affirms existing rights for what it calls “aboriginal peoples,” which includes their cultural, political, and social practices. Gambling, including betting, is a tradition amongst some First Nations communities.

Chief Kelly LaRocca of MSIFN claims the lack of consultation from the Ford government is a violation of those rights. In a letter she commented:

“The Ford government has recklessly ignored our concerns and has not offered any strategies to address the impact that their inadequate plan will have on our First Nation, our culture and our ability to provide services to our community. It is a real and significant threat. It will not stand. If the Ford government is not willing to address the harms caused by its decision, we will have to make them accountable, in an election year.”

Chief LaRocca voiced her intentions to challenge the Ontario government in court due to the government’s failure to consult First Nations. She says in doing so, it has put her community at economic and developmental risk.

Other objections from First Nations

This isn’t the first such complaint the province has faced.

In June 2021, the federal government legalized single game sports betting, and the Ontario push for iGaming privatization was in full swing. At that time, Chief Adam Pawis of Shawanaga First Nation contacted the Ontario Attorney General and the Minister of Finance to request more details on the programming. The First Nations also wanted to share their perspective on iGaming and ask about their involvement in the online market.

The Ministry of Finance granted him a meeting, but set a date nearly four months later in October.

Chief Pawis informed the Ministry that by not sharing the online gambling revenue with First Nations, they would be failing to meet the obligations of the Robinson Huron Treaty of 1850. The treaty states that the province will share a percentage of profits in exchange for using First Nations land.

The Ministry asked Chief Pawis to submit his points in writing. However, Pawis responded that his “community and people have a right to an oral tradition in this country.”

Additional friction with Ontario Lottery and Gaming

Ontario First Nations Limited Partnership (OFNLP) receives 1.7% of lottery sales, casino revenue and related hotel fees. This is stipulated in its agreement with Ontario Lottery and Gaming (OLG). The Superior Court and Court of Appeals have found OLG to be violating that agreement by privatizing its casino operations. In doing so, it ceased sharing of non-gambling revenue with the OFNLP.

These possible violations of constitutional and treaty rights with First Nations is only one aspect of the problem. It’s important to note that, federal law requires that all casinos be regulated by the provincial government. This means that even on First Nations land, the province has a hand in running and subsequently making profits off of First Nations casinos. First Nations casinos have access to and the ability to profit from players within their own casinos. With the introduction of iGaming the province will gain access to those same consumers, without sharing the income.

In the age of reconciliation and equality it will be interesting to watch how the Ford government reacts to these challenges. It has been adamant on what has already been an arduous journey to finally launch iGaming in the province. However, still greater difficulties may lie ahead.

- Katy Jean is a columnist and freelance writer from Dartmouth, Nova Scotia, Canada. Her writing has been focused on the COVID-19 pandemic and Canadian politics. She is most active from her Twitter account @katynotie.
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