Kahnawà:ke Vs. Ontario (Part 1): A “Last-Ditch” Challenge Of Ontario Gambling

Written By Robyn McNeil on December 21, 2022 - Last Updated on December 22, 2022
the mohawk council of kahnawake filed a legal challenge against ontario online gambling market

When the Mohawk Council of Kahnawà:ke moved to challenge Ontario online casinos and sportsbooks in late November, it surprised few in the industry.

The Notice of Application, filed on Nov. 28, named the Ontario Attorney General and iGaming Ontario as respondents in MCK’s effort to quash the fledgling online regime. The action, said MCK, is a last-ditch effort. A push to preserve Kahnawà:ke’s long-established online gaming industry.

In a statement released with the filing, Ratsenhaienhs (elected council chief) Mike Delisle, Jr., explained MCK’s reasoning:

“The plain facts are that Ontario’s actions are causing a significant loss of important revenues for our community.”

“Until these actions were taken, we were operating legally, safely and successfully across Canada. To be shut out of Ontario – by far the largest province in Canada – will have devastating effects on a source of income that has supplemented programs and services in our community for the last two decades.”

PlayCanada spoke to Chief Delisle to better understand MCK’s position and what’s at stake for Kahnawà:ke (and Ontario).

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.

Kahnawà:ke seeks to enshrine Indigenous gaming rights

To begin, a little about Kahnawà:ke:

The Mohawks of Kahnawa:ke are members of the Mohawk Nation, which winds through Quebec, Ontario and the northeastern US. Kahnawà:ke is located south of Montreal, across the Saint Lawrence.

MCK is the council elected to provide leadership and services to the Kahnawà:ke community.

In 1996, the council established the Kahnawake Gaming Commission under its newly adopted Kahnawà:ke Gaming Law. Since 1999, the KGC has regulated online gaming, making it one of the longest-running online gaming jurisdictions in the world.

For nearly 25 years, KGC has licensed online gaming based on Kahnawà:ke’s sovereign rights to govern its affairs. To this day, those rights remain unchallenged. But, MCK feels the launch of competitive online casinos and sportsbooks in Ontario shut out its operator, Mohawk Online, for not submitting to the new provincial framework.

Not only that, the MCK believes the very foundation supporting Ontario’s online gambling industry will crumble under legal scrutiny.

“Firstly,” Chief Delisle told PlayCanada, “we feel it is unlawful (meaning illegal) for Ontario to do what it’s doing.

“It’s actually the operators who are doing it [conducting and managing online gaming]… And secondly, it’s alienating [once again] indigenous populations, not only Kahnawà:ke, in the province of Ontario [from] conducting online gaming.”

Legitimacy of Ontario online casino and sports betting at question

In its Ontario Superior Court filing, MCK lays out what it’s asking for and the legal grounds for the action.

With the application, MCK requests the court declare that Ontario’s government does not “conduct and manage” its igaming scheme. Importantly, this finding would leave Ontario in violation of s. 207(1)(a) of the Federal Criminal Code.

It also asks the court to quash the igaming scheme for failing to adhere to the law. Alternatively, MCK requested an order declaring Ontario’s online gambling scheme “inoperative” or otherwise “without effect” for the same reason.

The application also requests the court require respondents to cover the costs of the application (and other relief suggested by council and deemed just by the court).

MCK argues Federal paramountcy renders Ontario online gambling inoperative

Legal grounds cited in the application cover extensive background, starting with a reminder that traditional Mohawk territory remains unceded. Also of particular note: MCK’s long-standing relationship with gambling, an integral part of Mohawk culture since “time immemorial.”

Further reasoning references key milestones in Ontario’s online gambling journey:

  • Ontario announces plan for commercial online gambling market
  • Bill C-218 passes permitting single-event betting
  • Ontario makes legislative changes to pave the way for new market
  • Ontario established iGaming Ontario
  • AGCO publishes Internet Operator Application Guide
  • Ontario publishes the Registrar’s Standards for Internet Gaming
  • Ontario launches online gambling market

Most significant, however, are the grounds related to the illegality of the Ontario market.

Here, the MCK details its claims that the market’s legal underpinnings fail to meet federal requirements. Namely, that the province “conducts and manages” any gambling schemes.

Instead, MCK argues that the commercial operators in Ontario conduct and manage their own businesses.

Under this interpretation, the igaming scheme is ultra vires the province, meaning Ontario is acting beyond its scope of powers. Thus, the whole scheme is out-of-order. Dual compliance with the Ontario scheme and Federal laws is impossible. Therefore, Federal paramountcy reigns supreme, rendering Ontario’s online gaming industry inoperative.

“It’s the operators who continue to conduct and manage igaming within their realm,” said Delisle.

“I’d like to see AGCO come forward with what they do to conduct and manage operations within the province. I haven’t seen it, and I really don’t believe, we don’t believe, that is what is taking place.”

Kahnawà:ke’s best case is Ontario’s worst

“That’s the ultimate accomplishment,” said Delisle.

“If they’re going to shut it down, to us, that would mean yes, we were right, and it’s illegal. They’re not following the rules [in terms of criminal code changes], and AGCO is not really conducting and managing.”

However, the MCK doesn’t seek a permanent end to commercial online gambling in Ontario. But they do want to enshrine the right of Kahnawà:ke and other Indigenous populations to partake in online gambling equitably. Land-based, too.

“We’re looking for a carveout,” said Delisle.

“Number one, for the gaming operators that we licence. And [for] our operator as well. And I think that can be easily accomplished with an MOU-style agreement between the two regulatory bodies.”

KGC is no stranger to Memoranda of Understanding. Since 2005, KGC has entered into MOUs with the financial regulator for Antigua and Barbuda and the Maltese gaming authority. The gambling commissions of Alderney and Jersey (Channel Islands) also have executed understandings with KGC.

Additionally, KGC has MOUs with the Six Nations Gaming Commission (Ontario) and the Santa Ysabel Tribal Gaming Commission in California. And in 2014, New Jersey’s Department of Gaming Enforcement agreed to a reciprocal information-sharing protocol with KGC.

Canada, Ontario could have avoided challenge

Delisle and MCK said that the move against Ontario’s new gambling efforts was not inevitable. In truth, they claim it was easily avoidable.

“In our opinion, this was done fairly quick and dirty,” said Delisle, speaking to the passing of Bill C-218 and the launch of Ontario’s online market.

He said that proper engagement at federal or provincial levels would have made a difference.

“There was ample time… This March will be four years [since] Lametti was in our offices, here, talking to us.”

(David Lametti is the Minister of Justice and Attorney General of Canada.)

Done right, gambling expansion within Canada would “recognize our jurisdiction,” Delisle added.

That way, changes would allow KGC to continue to “not only license operators” in the Canadian gaming space but permit Mohawk Online’s sustained operation.

(Mohawk Online is (historically) the exclusive operator behind Sports Interaction, Kahnawà:ke’s online sports betting and casino brand. MO is a socio-economic gaming initiative. Revenues from Mohawk Online get reinvested in social programs and community initiatives in Kahnawà:ke).

Without such accommodations, it’s unlikely conflicts between Canada and Indigenous gaming interests will be put to rest anytime soon.

How did we get here? Years of struggle over Indigenous gaming rights play a role. Find out more tomorrow in Part 2.

Photo by Shutterstock
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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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