Ladies and Gentlemen,
The Dominion has chosen their resident poker "expert" to craft today's offering: a post regarding gambling. With this in mind, we apologize in advance for the full house of lame poker puns contained within.
As we recognize the importance of not limiting our exploration of the rights of Indigenous Canadians to a single week, we will continue to explore this theme throughout this project. Today, we look at R v Pamajewon1, which outlines how an Aboriginal group's pocket aces2 got rolled by a gutshot straight draw3 on the river4.
Specifically, Pamajewon deals with s. 35(1) of the Constitution Act, 19825, which guarantees the right to Aboriginal self-government, while balanced with the possible limitations thereof.
The First Nations of Shawanaga and Eagle Lake had unilaterally passed laws that permitted gambling on their reserves, assuming that the deck had been stacked in their favour. After all, they had s. 35(1) on their side, which reads:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed6.
As in poker, with constitutional litigation, there is always an element of chance. In this case, it took the form of the Supreme Court of Canada applying the precedent decided in R v Van der Peet7 to the facts. Van der Peet set a test for what qualifies as an "existing aboriginal and treaty right". The test is best explained by using the sub-headings that come under the heading entitled "Factors to be Considered in Application of the Integral to a Distinctive Culture Test" within the ruling as follows:
Courts must take into account the perspective of Aboriginal peoples themselves
Courts must identify precisely the nature of the claim being made in determining whether an Aboriginal claimant has demonstrated the existence of an Aboriginal right
In order to be integral a practice, custom or tradition must be of central significance to the Aboriginal society in question
The practices, customs and traditions which constitute Aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact
Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating Aboriginal claims
Claims to Aboriginal rights must be adjudicated on a specific rather than general basis
For a practice, custom or tradition to constitute an Aboriginal right it must be of independent significance to the Aboriginal culture in which it exists
The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct
The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence.
Courts must take into account both the relationship of Aboriginal peoples to the land and the distinctive societies and cultures of Aboriginal peoples8.
This test, when applied to the facts of Pamajewon, ended up with the chips falling in favour of the Crown. The Supreme Court of Canada found that the right of self government was to be determined as it related to specific activities, in this case, the regulation of high-stakes gambling9. The Court further found that such activity was not actually "an integral part of the distinctive cultures of the Shawanaga or Eagle Lake First Nations"10.
In summary, it is worth noting that, in law or in games of chance, there are very few sure bets. A solid straight right off the flop11 can end up being a losing hand to a flush12 that shows up as the last card hits the table13. We will leave you with the words of an actual poker expert, in the form of a quote that accurately sums up today's post so eloquently that we would not at all be offended if you skipped right to it:
Poker is a microcosm of all we admire and disdain about capitalism and democracy. It can be rough-hewn or polished, warm or cold, charitable and caring or hard and impersonal. It is fickle and elusive, but ultimately it is fair, and right, and just14.
Your Most Humble and Obedient Servants,
The Dominion
1 [1996] 2 SCR 821 [Pamajewon].
2 A pair of aces dealt solely and secretly to a single player; the best starting hand in Texas Hold’em, a popular variant of poker.
3 Also known as an “inside straight draw”; when a player has four cards for a straight, but is missing one of the ones on the inside. For example, 4, 5, 7, and 8; requiring the 6 to complete the hand.
4 The last communal card dealt in Texas Hold’em.
5 Being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35(1).
6 Ibid.
7 [1996] 2 SCR 507 [Van der Peet].
8 Ibid at paras 48-75
9 Supra note 2 at para 27.
10 Ibid at para 28.
11 The first three communal cards dealt in Texas Hold’em.
12 Five cards of the same suit.
13 This is known as a “bad beat”, and most poker players will talk your ear off with these kinds of stories if you permit them to.
14 Lou Krieger, More Hold'Em Excellence: A Winner for Life? (ConJelCo LLC, 1999) at 4.
