R. v. Pamajewon  2 S.C.R. 821: Self-government and high stakes gambling -- First nations passing lotteries by-laws -- By-laws not passed pursuant to Indian Act -- Criminal charges laid for alleged breach of gambling provisions -- Whether an aboriginal right to gamble -- Whether an aboriginal right to self-government which includes the right to regulate gambling activities
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Aboriginal rights -- Self-government and high stakes gambling -- First nations passing lotteries by-laws -- By-laws not passed pursuant to s. 81 of Indian Act -- Criminal charges laid for alleged breach of gambling provisions -- Whether an aboriginal right to gamble -- Whether an aboriginal right to self-government which includes the right to regulate gambling activities -- Constitution Act, 1982, s. 35(1) -- Criminal Code, R.S.C., 1985, c. C-46, ss. 201(1), 206(1)(d), 207 -- Indian Act, R.S.C., 1985, c. I-5, s. 81.
The Shawanaga First Nation and the Eagle Lake First Nation both passed by-laws dealing with lotteries. Neither by-law was passed pursuant to s. 81 of the Indian Act and neither First Nation had a provincial licence authorizing gambling operations. The Shawanaga First Nation asserted an inherent right to self-government and the Eagle Lake First Nation asserted the right to be self-regulating in its economic activities.
The appellants Howard Pamajewon and Roger Jones, members of the Shawanaga First Nation, were charged with keeping a common gaming house contrary to s. 201(1) of the Criminal Code. The charges arose out of high stakes bingo and other gambling activities on the reserve. The appellants Arnold Gardner, Jack Pitchenese and Allan Gardner, members of the Eagle Lake First Nation, were charged with conducting a scheme for the purpose of determining the winners of property, contrary to s. 206(1)(d) of the Code. The charges related to the band's bingo activities on the reserve. All were convicted and the convictions were upheld on appeal. At issue here was whether the regulation of high stakes gambling by the Shawanaga and Eagle Lake First Nations fell within the scope of the aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982. The constitutional question before the Court queried whether ss. 201, 206 or 207 of the Code, separately or in combination, were of no force or effect with respect to the appellants by virtue of s. 52 of the Constitution Act, 1982, by reason of the aboriginal or treaty rights within the meaning of s. 35 of the Constitution Act, 1982.
Held: The appeal should be dismissed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: Assuming without deciding that s. 35(1) includes self-government claims, the applicable legal standard is that laid out in R. v. Van der Peet. Claims to self-government made under s. 35(1) are no different from other claims to the enjoyment of aboriginal rights and must be measured against the same standard.
In order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. The Court must first identify the exact nature of the activity claimed to be a right and must then go on to determine whether that activity could be said to be "a defining feature of the culture in question" prior to contact with Europeans.
The most accurate characterization of the appellants' claim is that they are asserting that s. 35(1) recognizes and affirms the rights of the Shawanaga and Eagle Lake First Nations to participate in, and to regulate, gambling activities on their respective reserve lands. To characterize the appellants' claim as "a broad right to manage the use of their reserve lands" would cast the Court's inquiry at a level of excessive generality. Aboriginal rights, including any asserted right to self-government, must be looked at in light of the specific circumstances of each case and, in particular, in light of the specific history and culture of the aboriginal group claiming the right.
The evidence presented at trial did not demonstrate that gambling, or that the regulation of gambling, was an integral part of the distinctive cultures of the
Shawanaga or Eagle Lake First Nations at the time of contact. The activity was therefore not protected by s. 35(1).
Per L'Heureux-Dubé J.: To characterize the appellants' claim as the existence in their bands of a broad authority, protected by s. 35(1) of the Constitution Act, 1982, to make decisions regarding natives' social, economic, and cultural well-being (including the regulating of gambling activities) is overly broad. The claim, nevertheless, should not be characterized as "the rights of the Shawanaga and Eagle Lake First Nations to participate in, and to regulate, gambling activities on their respective reserve lands". The proper inquiry focuses upon the activity itself and not on the specific manner in which it has been manifested. The claim must be broadly characterized: do the appellants possess an existing aboriginal right to gamble? If such a right can be shown to exist it would oblige the government to justify the infringement upon that right by the Criminal Code, which essentially prohibits gambling.
The definition of aboriginal rights should refer to the notion of the "integral part of a distinctive aboriginal culture", and to be recognized under s. 35(1), must be sufficiently significant and fundamental to the culture and social organization of a particular group of aboriginal people. The evidence presented did not show that gambling ever played an important role in the cultures of the Shawanaga and Eagle Lake First Nations. Gambling as a practice was not connected enough to the self-identity and self-preservation of the aboriginal societies involved here to deserve the protection of s. 35(1). It was unnecessary to consider whether s. 35(1) encompasses a broad right of self-government which includes the authority to regulate gambling activities on the reservation. Even if some rights of self-government existed before 1982, there was no evidence that gambling on reserve lands generally was ever the subject matter of aboriginal regulation.
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