Hon. Marty Klyne: Honourable senators, I rise in our debate on Bill S-241, An Act to amend the Criminal Code and the Indian Act. Senator Tannas reintroduced this bill from the last Parliament, previously numbered as Bill S-268. This legislation proposes to grant First Nations the power to lift the default Criminal Code prohibition on gaming in their jurisdictions. This bill would give First Nations a similar, though perhaps broader, power compared to the provinces in terms of authorizing and regulating gaming.

Thank you, Senator Tannas, for commencing this debate. Thank you also to my Saskatchewan colleague Senator Muggli for sharing her perspective last week. I approach this bill through the lens of having served as president and CEO of the Saskatchewan Gaming Corporation, or SGC, the Crown corporation that operates Casinos Regina and Moose Jaw.

Legally, this new version of the bill contains a significant change. Whereas the original bill referred throughout to operating gaming schemes “on the reserve,” the new bill refers to operating gaming schemes “from or within the reserve.” This change appears to authorize online gaming services, including to customers outside of the province where the relevant First Nation is located.

For context, provincial gaming authorities cannot provide online gaming to customers in other provinces or territories without that jurisdiction’s consent, as affirmed by a 2025 Ontario Court of Appeal ruling on provincial limits.

With the new bill’s change, if proceeding, an important point to clarify is where potential customers of a First Nation’s online gaming operation may be located. For example, could they be in another province, and if so, would or should that province’s agreement be required?

Senators, I spoke to the original version of this bill on May 9, 2024. My speech today will have two parts. First, an overview of four issues I raised in the past debate. Overall, I have an open mind on this bill. I also expect that the studies at our Indigenous Peoples Committee and our Legal Committee, as decided previously by the Senate, will provide due diligence. I trust that will include providing this chamber with conclusions and guidance on the four issues I raised in my last speech, which I will briefly revisit.

Second, I will highlight concerns about online gaming in our Canadian federation, given that this version of the bill would likely expand that activity.

In my previous speech, I raised concerns relating to four topics. One issue is the risk of oversaturating the marketplace in terms of casinos, video lottery terminals, or VLTs, and other gaming, causing market cannibalization. This is a scenario in which existing ventures would lose market share and revenue. In turn, market cannibalization would likely impact household incomes in affected communities, which would have a ripple effect on local businesses.

For me, a metric of viability for a new casino is that it should demonstrate support among local jurisdictions at the municipal, rural and provincial levels. There should also be consideration given regarding displacing any existing authorized gaming establishments, including compensation for sunk costs and loss of jobs created by any new establishment. In other words, we wouldn’t want to see stranded or devalued assets or jobs lost without a clear plan for replacement jobs in terms of a just transition.

Second, another risk of oversaturation could be a race to the bottom in terms of responsible gaming. In other words, in opening a saturated and responsible market to new entry and competition, we don’t want to create an incentive to attract customers by reducing the safeguards for responsible gaming.

Certainly, the Responsible Gambling Council, or RGC, should be among the committee witnesses. This is a Canadian NGO focused on preventing problem gambling. RGC offers the public resources to recognize signs of problem gambling and to find help. Through their RG Check accreditation program, they also offer industry and regulators support in developing, measuring and evaluating their programming, including around new technologies and forms of gambling.

For example, it’s important to consider best practices for in-person responsible gaming, such as around casinos. I’m thinking of measures like voluntary limit setting, self-exclusion, employee training and advertising restrictions. It’s also vital to look at tools for problem gaming online, such as the apps that block access to gambling sites and apps. BetBlocker and GamBlock are two examples.

Helpfully, Senator Tannas told us about the development of a national Indigenous gaming authority. An example in the U.S. may be the National Indian Gaming Commission. Our committee members will no doubt hear more, and our chamber will look forward to their findings, including around the new organization’s readiness and reach.

A third issue I spoke about is the risk of jeopardizing existing profit-sharing agreements in Saskatchewan that address the economic and social issues of First Nations and Métis non-governmental and community organizations.

In Saskatchewan, we have the Gaming Framework Agreement between the province and the Federation of Sovereign Indigenous Nations, or FSIN. Under that framework, SGC casino’s net profit is redistributed: 50% to the First Nations Trust, which is distributed among the 74 First Nations in the province, and 25% to community development corporations, which reinvest the money into local community initiatives, including Métis communities, and 25% to the provincial General Revenue Fund. In 2021, the province and the Federation of Sovereign Indian Nations, or FSIN, agreed to an online gaming site, with a 50-50 split of that revenue.

I would like our committees to look at how these dynamics may be affected by this bill — positively or otherwise — and whether any amendments or observations would be appropriate. My initial thinking is that this chamber may, for example, expect a plan in place before flipping the switch, leaving no one behind in Saskatchewan relative to the status quo. This includes First Nations and Métis communities not running gaming operations but which currently benefit.

Senator Duncan has raised similar issues in the Yukon. I also agree with Senator Muggli that the committee should hear from Métis communities. In addition, I would echo Senator Batters’s suggestion to hear from the provinces on this bill at committee, including Saskatchewan, given their financial stake and role in the Gaming Framework Agreement. This includes their perspectives on revenue sharing with First Nations and Métis communities and on responsible gaming. That’s not to mention that the Gaming Framework Agreement requires Saskatchewan Gaming Corporation, or SGC, casinos to have an employment force made up of a minimum of 50% Indigenous employees.

We should also invite the federal government’s perspective on these proposed changes to the Criminal Code.

The fourth subject I will revisit is a legal clarification from our committees on the nature of the proposed First Nations jurisdiction. The bill’s preamble refers to First Nations gaming authorities as being within their “. . . Inherent and Treaty rights . . .” However, in our last debate, another Saskatchewan colleague, former Senator Cotter, said:

Here is what the Supreme Court has had to say. In a case called R. v. Pamajewon, the Supreme Court of Canada refused to recognize that there was a section 35(1) right to gaming or to the regulation of gaming, and said it did not exist. The author of that majority decision agreed that commercial gaming was a “twentieth century phenomena” that did not exist among Aboriginal peoples and “was never part of the means by which those societies were traditionally sustained or socialized.”

In 2000, in a case called Lovelace v. Ontario, the Supreme Court stated that in Pamajewon, it had found that gambling and the regulation of gambling were not Aboriginal rights. These positions were once again adopted in 2019 in the Ontario Divisional Court in a case called Wauzhushk Onigum Nation v. Minister of Finance (Ontario). I hope the committee will address this question.

As former Senator Cotter noted, if First Nations gaming isn’t a section 35 constitutional right, it may still be good policy.

Senator Muggli pointed out that the U.S. model supports greater autonomy for Indigenous governments’ gaming operations. The committee should look at that. I believe Senator Muggli was referring to a compact agreement, a legally binding intergovernmental agreement required under the Indian Gaming Regulatory Act of 1988. I would recommend looking into the compact agreements for good reasons. If I have time, I will come back to them.

As I said before, we’re talking about lifting an otherwise criminal prohibition. The existence of this prohibition as part of the criminal law indicates that there are some universal social risks and concerns around gaming. After all, the application of inherent rights through the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan is consistent with the general application of criminal laws in Canada. This includes in Indigenous jurisdictions from time to time.

One purpose of the criminal law is to protect all Canadians. Accordingly, while this change may be a good idea, I personally don’t see this bill and the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, as necessarily being a package deal, so to speak. The inherent Indigenous right of self-government intersects with other valid laws in our Canadian federation. This is because valid universal restrictions or general regulations are consistent with inherent Indigenous rights. We can envision universal risks, for example, such that criminal laws will continue to apply in areas like firearm sales, controlled drugs and substances or sensitive materials like explosives, where safeguards prevail. Certainly, we all know — or should know — that gambling addictions can cause serious harm. Gaming is not simply a business like any other. Harm from gambling can take many different forms, including financial harm; relationship disruption, conflict or breakdown; emotional or psychological distress; decline in health; reduced performance at work or study; and criminal activity.

On the other hand, responsible gaming is legitimate entertainment and an important source of revenue for Indigenous Peoples, as it is for the provinces. I’m proud to have played a leadership role in the gaming sector, with a focus on responsible gaming. That’s why I think it’s appropriate to proceed with committee study on this bill, with both an open mind grounded in facts and a dose of caution.

Colleagues, this brings me to the second part of my speech, which concerns universal concerns around online gaming in our federation. This new bill is clear that First Nations will be able to authorize online gaming, with some clarification needed on the locations of potential customers. Online gaming can be a highly addictive and sometimes financially ruinous activity, with health and social consequences. Our deliberations on this potential change must therefore reflect caution, awareness and education.

Senators know of this issue. With Senator Marty Deacon and Senator Percy Downe’s leadership, over 40 senators signed a letter to the Prime Minister in November requesting that the CRTC ban all advertising for sports gambling apps and websites. This would be like the existing ban on cigarette advertising. That letter highlights the growth in this advertising since Parliament legalized single event sports betting in 2021. As Senator Downe and others have said, Canadians now have casinos in their pockets.

In October, this chamber passed Senator Deacon’s Bill S-211, proposing a national framework on sports betting advertising. We have also seen scandals in the news where gambling has corrupted the integrity of sports, including in the NCAA, the NBA and Major League Baseball.

Of course, sports betting is but one form of online gaming. There are also traditional games, like poker and blackjack.

Now, even CNN has partnered with an app to facilitate betting on the news. This area is seeing explosive growth. In the U.S., revenue from betting on predictions is expected to increase fivefold by 2030. These dynamics carry risks around continued addiction and related harms, with no relief in sight. Supporting responsible gaming is vital.

This is all to say that First Nations are rightly looking for innovative ways to generate own-source revenue. Gaming is already a part of that. I wholeheartedly support this as a responsible industry and legitimate entertainment, including as one of many avenues for economic reconciliation.

In the big picture, growing Indigenous businesses is essential for Canada’s economy. We’re seeing successes in sectors across the board, which many senators highlighted in our inquiry during the last Parliament. However, when it comes to gaming, there are universal risks. With this bill — at the expense of being repetitive — our watchwords must be “open-mindedness,” “awareness,” “education” and “caution.” I support this bill going to our two committees, and I appreciate Senator Tannas’s hard work on this bill and his openness to amendments.

Thank you, hiy kitatamihin.