Kahnawà:ke Vs. Ontario (Part 2): History Of Indigenous Gaming, Political Conflict

Written By Robyn McNeil on December 22, 2022
mck's legal challenge of the ontario online gambling market follows long history of conflict over Indigenous gaming in canada

In the first part of this story, we examined the Mohawk Council Of Kahnawà:ke’s legal challenge of the Ontario online casino and sports betting industry.

In part 2, we revisit recent conflicts around Indigenous gaming for a better understanding of the conditions that prompted MCK to act.

Editor’s Note: The Alcohol and Gaming Commission of Ontario, Ontario Attorney General, iGaming Ontario, and Ontario Lottery and Gaming all declined to comment, as the matter is before the courts.

Canada’s exclusion of Indigenous people not a new story

Those familiar with the history of Canada/Indigenous relations will know: Indigenous people are not new to struggle.

Despite Canada’s friendly facade, much of that strife is at the hands of Canada’s government (and people). Canada employed brutal assimilation policies on First Nations (the Indian Act, reservation system and residential schools are examples). And that’s just scratching the surface.

Consequences of those policies echo. Issues like water quality, unmarked student graves, over-representation in prisons, and an epidemic of missing and murdered women and girls haunt Indigenous populations.

The story’s not much different when it comes to Indigenous gaming.

At nearly every turn, when the opportunity to codify Indigenous rights arises, the government(s) prioritizes its coffers.

1985 Federal/Provincial lottery agreement overlooks Indigenous gaming rights

In 1985, the Federal government and provinces announced an agreement that traded authority over gaming for a $100 million payoff.

The payment would be made over three years and directed toward the Fed’s financial commitment to the 1988 Calgary Olympics.

Additionally, provinces would jointly pay $24 million annually (adjusted to inflation and calculated proportionally). In return, the provinces would have the sole legal right to conduct lotteries and games of chance.

Buried within the amendment was another change. The tweak allowed provinces (alone or in partnership) to operate lottery schemes through a computer, video device, or slot.

The speed the bill proceeded (first reading through royal ascent in under three months) prohibited public consult, including with First Nation interests.

The result, said MCK’s Chief Mike Delisle Jr., is since 1985, laws have prohibited Indigenous populations from independently engaging in gaming. Exceptions include the “crumbs” provincial-level agreements provide, like those between OLG and Indigenous groups in Ontario. Or the recent deal between Saskatchewan’s Indian Gaming Authority, the Federation of Sovereign Indigenous Nations and the provincial government.

“Why can’t it be a recognized jurisdiction in Indigenous country, so to speak?” Delisle asked.

“We’ve been acknowledged for over 20 years. World-renowned everywhere except the country we live,” he said of Kahnawà:ke.

“I’ve spoken to regional Chief Cameron, the champion for what’s happening in Saskatchewan now and with SIGA and FSIN,” said Delisle. “There’s nothing within the documents that have been shared or in those agreements that Kahnawake would agree to with Quebec, let alone getting Quebec to the table, which is another challenge.”

Saskatchewan’s solution said Delisle, “doesn’t work for everybody.”

“Why does there, once again, need to be a cookie-cutter approach to ensure that we fall in line? That’s not us. It never has been, never will be.”

Kahnawà:ke gaming “worthy,” said Lametti (allegedly)

As Delisle recounted, in March 2019, David Lametti visited Kahnawake to learn about their gaming operation. Lametti is the Minister of Justice and Canada’s Attorney General.

According to Attorney General at the time, he was there in “good faith” from the government, said Delisle. However, MCK believes a letter sent to Prime Minister Trudeau months earlier prompted the visit. (The letter decried movement around Bill C-218’s predecessors.)

In any case, after a 45-minute presentation and an hour or more of back and forth, Lametti deemed Kahnawà:ke’s gaming authority “worthy of recognition,” recalled Delisle.

Later, MCK said a letter from Lametti’s office arrived that potentially opened the door to solidifying Indigenous inclusion in gaming. Not a promise, but an invitation to discussions, said Delisle. Reportedly, Indigenous communities across Canada received the communication.

Editor’s note: PlayCanada filed ATIP requests and will follow up if anything new comes to light.

Obviously, we answered within days,” recalled Delisle. “Yet nobody’s done anything.

“That’s where we want to connect inter-governmentally.

“We’ve offered and tried in the past with our provincial government here in Quebec. All the way back to 1999, 2000. Partnership agreements, so on and so on… We’ve been shut out at every turn. Yet, we’ve never been legally challenged.”

MCK asked for accommodations under Bill C-218

In February 2020, Bill C-218, a private members bill sponsored by Saskatchewan MP Kevin Waugh, began its journey into law.

C-218 was the latest in a series of bills going back nearly a decade to 2012 that attempted to tweak the criminal code to allow single-event event sports betting. (At the time, Canadian law only allowed only multi-leg parlay bets.)

But while previous bills failed (C-290, C-221. Even the Liberal’s bill (C-13) was put aside in favour of Waugh’s), for 218, the time was right. After a brief pause between parliamentary sessions, the House reinstated the Safe and Regulated Sports Betting Act in September 2020.

By then, six months of pandemic restrictions compounded opinions. The expected benefits of curtailed crime, increased consumer protection and pushback on US competition, as well as tax dollars, became more appealing. As a result, political will changed.

In Canada, interested parties have two chances to have their say during a bill’s lifecycle. The first in the House of Commons and the second in the Senate’s upper chamber. In both cases, input is invited between second and third reading when a bill faces inspection by committee.

In the lower House, the Standing Committee on Justice and Human Rights met five times in February and March to examine the bill.

During those meetings, the committee heard witnesses affirm their support and opposition to the bill. Witnesses spanned many stakeholders, including the Responsible Gaming Council, the Canadian Gaming Association, the National Hockey League and the Canadian Centre for Ethics in Sport.

MCK testified before the House of Commons, Senate

MCK testified in the House to voice support for legalizing single-event bets, generally, while opposing the language of Bill C-218 as written. Instead, Chief Delisle and Chief Gina Deer proposed an amendment to enshrine Indigenous gaming rights protections.

Chief Delisle, during his March 23, 2021 testimony:

“We must be clear that Kahnawake does not take issue with the intent of the code being amended to permit provinces to facilitate sports betting. We recognize Bill C-218 as a positive move forward for Canada’s gaming industry. However, we do take issue with the bill’s failure to consider, accommodate and reconcile the interests of indigenous peoples.”

An amendment, however, could remedy that, said Chief Deer.

“The committee has the power to recommend amendments that will correct the 35-year-old injustice to indigenous communities. You have the power to accommodate and reconcile the interests of the Crown with those of indigenous peoples. You have the power to urge Parliament to balance the interests of the wealthy and the powerful with the interests of indigenous communities.”

Canadian horse racing interests were also on hand with a similar amendment. In that case, it would protect Canada’s pari-mutuel racing industry from fixed-odds competition.

At the end of the reporting stage, the Justice Committee presented its report with one amendment tacked on.

While the addition would please Canada’s horsepeople, the committee passed on including Indigenous interests in the adapted law.

MCK would testify again during C-218’s Senate run, but again committee members decided against further amending the bill. Despite pushback from a small group of Senators, Bill C-218 passed the Senate on June 22 with its sole amendment in tow.

C-218 received Royal Assent a week later, on June 29. The law came into effect two months later, near August’s end.

Mohawk Online takes leave of Ontario

As Bill C-218 was winding its way into law, Ontario was preparing to launch its commercial online gaming market.

Shortly after the 218 became law, AGCO opened its application portal to potential operators and suppliers. A few months later, Ontario announced its new market would launch on April 4, 2022.

From the get, MCK was adamant that Mohawk Online, its online gaming company, would not register in Ontario. If anything, MCK would expect an MOU-style agreement between AGCO and KGC.

However, things got complicated in February when Entain announced its purchase of Avid Gaming. Avid owns Sports Interaction, which was licensed exclusively to MCK.

Entain also owns the Party and Bwin gaming brands and jointly owns BetMGM with MGM Resorts International.

Initially, when Entain announced the sale, it said it would continue to support Mohawk Online’s socio-economic efforts.

Entain, however, would license its Bwin and Party brands in Ontario, along with BetMGM. Mohawk Online held firm, though, keeping Sports Interaction licensed under the KGC.

In September, Entain announced it received its own AGCO registration for Sports Interaction. This time the release mentioned neither MCK nor MO.

At first blush, it appeared that MCK caved, but it’s a different story when you look closer. For one, MCK’s ‘exclusive’ Sports Interaction license appears much less exclusive.

Editor’s Note: In an email to PlayCanada a spokesperson for Entain confirmed its partnership with MCK on Sports Interaction in Canada. The email also confirmed Entain operates all its Ontario brands, including SIA, under AGCO registration. Entain is not a litigant in MCK’s legal action.

MCK and Mohawk Online at odds with AGCO

Before SIA’s Ontario registration, Mohawk Online left the Ontario market, though it maintained its other Canadian operations.

At the time, MCK still hoped to sign an agreement with AGCO. Pulling out of Ontario also protected Entain from association with grey market brands after AGCO clarified it could deny registration for working with companies with an illegal presence.

When Sports Interaction reappeared on the Ontario scene, it looked nearly indistinguishable from its previous incarnation, other than the addition of iGaming Ontario’s logo. But, there was one significant change, the operator: Electraworks Maple Limited (Entain), licensed under AGCO.

In every other province, however, Mohawk Online still operates Sports Interaction under Canadian and Jersey licenses. But, for MCK to remain principled, it had to forego, at least temporarily, Ontario dollars.

As Delisle said, that’s “50% of Canada,” referencing MO’s lost market access. “There’s going to be an [economic] impact.”

In addition to the loss of Ontario gaming dollars, KGC’s regulatory authority is potentially at risk.

AGCO’s grey market clarification confused operators and suppliers. Some, reportedly choosing to air on the side of caution, left KGC. However, PlayCanada is unaware of specific examples of operators jumping ship.

“[You] could call us naive, which is a little bit tongue in cheek,” Delisle offered, explaining how they got where they are.

MCK had “assurances” of engagement with AGCO around a possible carveout, Delisle said. But, at the last hour, they were told they needed to aim higher on the Totem. Yet communications with Attorney General Lametti had already faltered.

“There’s no longer any use in us trying to engage as they continue to shut us out… this is a last resort for us. We don’t like to take things to provincial and or federal courts. We like to engage in dialogue inter-governmentally.”

Kahnawà:ke not “Pirates of the Internet”

With dialogue no longer an option, MCK is awaiting a hearing date from the registrar.

Depending on how the legal action goes, MCK will share more about how they’ll continue to push back. At this point, however, they hope that won’t be necessary.

According to Delisle, “Canada needs to change the rules.”

“Nothing’s impossible, but it’s almost an impossibility to think that Quebec is going to engage with us… the Feds need to step in and change the rules to allow lawful [gaming], whether it be online or land-based.”

Yes, some jurisdictions turn a blind eye, said Delisle. Cut them a cheque, and they allow you to operate.

But that’s not the case in Kahnawà:ke, he said. KGC has worked with the Federal Bureau of Investigation, RCMP, Sûreté de Québec in Quebec and the Montreal police to protect its jurisdiction.

Said Delisle: “It’s been built. Why would we let it go?”

“We’ve been either lied to or led to believe that an engagement would happen,” he added. “Yet, almost four years later, we’re continuously called the Pirates of the internet.”

“I don’t think what we’re asking is outside of the realm of possibility. We’ve done things legitimately. We’ve done things diligently. We’ve learned lessons. We have a law, we have a bonafide jurisdiction, recognized around the world. Why can’t Canada and or provinces at least engage with us before they change the rules? That’s just been the way they’ve done things since 1867. Unfortunately.”

Reconciliation: all talk, not much action

Despite much chatter of reconciliation in recent years, Canada™ has done little to put its money where its mouth is.

Whether buying a multi-billion dollar pipeline, perpetuating a water crisis or clashing over land, authorities at all levels seem to put “Canada” first.

But, the Mohawk Nation is not known for backing down. And despite the potential cost and risks of instigating legal action, Kahnawà:ke’s not about to start.

“What does anybody expect us to do?” asked Delisle. “We’re not folding [up] shop. We’re not giving up jurisdiction.

“Reconciliation, UNDRIP, so on and so on and so on. Gathering strength… I’ve been here long enough to be looking at my shelf with many of those reports that were done to level the playing field for us in and around Canada. And all they do is gather dust, no actions. Nothing else.

“Stop talking about reconciliation when it’s staring you in the face, and you do nothing.”

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Robyn McNeil

Robyn McNeil is a Nova Scotia-based writer and editor. She lives in Halifax in an empty nest with a mischievous cat and a penchant for good stories, strong tea, cheeseburgers, yoga, graveyards, hammocks, gardening, games, herb, and hoppy beer.

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