Tansi Nîtôtemtik,
Shawanaga First Nation, photo retrieved from: http://shawanagafirstnation.ca
Today’s post will discuss the Supreme Court of Canada’s (SCC) decision in R v Pamajewon, a leading case in Aboriginal self-government under Section 35 of the Constitution Act, 1982.
The facts: Pamajewon and Jones
The appellants were Jones and Pamajewon, members of the Chief and Council of Shawanaga First Nation in Ontario. After high-stakes bingo and other gambling activities were found taking place on the Shawanaga First Nation, both were found guilty of the offence of keeping a common gaming house contrary to section 201(1) of the Criminal Code. This section of the Code reads as follows:
201. (1) Every one who keeps a common gaming house or common betting house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. [1]
The appellants argued that such activities fell under the authority of the Shawanaga First Nation lottery law; however, there was no by-law passed pursuant to section 81 of the Indian Act, nor was there a provincial licence authorizing the gambling activities. The band argued both were unnecessary due to their inherent right of self-government under Section 35(1) of the Constitution Act, 1982. [2]
The facts: Gardner, Pitchenese and Gardner
In addition to the above, Arnold Gardner, Jack Pitchenese and Allan Gardner, members of the Eagle Lake First Nation, were also appellants for a case heard at the same time. They were found guilty of conducting a scheme for the purpose of determining the winners of property, contrary to section 206(1)(d) of the Criminal Code. Section 206(1)(d) of the Code reads as follows:
206. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years who
(d) conducts or manages any scheme, contrivance or operation of any kind for the purpose of determining who, or the holders of what lots, tickets, numbers or chances, are the winners of any property so proposed to be advanced, lent, given, sold or disposed of...[3]
The parties were directly involved with operating a bingo on-reserve, which they argued was pursuant to the Eagle Lake First Nation Band Council’s lottery law. This law was also not a by-law passed pursuant to section 81 of the Indian Act, nor was there a provincial licence authorizing the gambling activities.[4]
Issue
The issue to be decided by the SCC in this case was read as the following constitutional question:
Are s. 201, s. 206 or s. 207 of the Criminal Code, separately or in combination, of no force or effect with respect to the appellants, by virtue of s. 52 of the Constitution Act, 1982 in the circumstances of these proceedings, by reason of the aboriginal or treaty rights within the meaning of s. 35 of the Constitution Act invoked by the appellants? [5]
Analysis
Chief Justice Lamer, writing for the majority, stated that “[a]ssuming without deciding that s. 35(1) includes self-government claims, the applicable legal standard is nonetheless that laid out in Van der Peet…[as] claims to self-government are no different from other claims to the enjoyment of aboriginal rights and must, as such, be measured against the same standard.”[6] In asserting their claim to self-government, the SCC had to decide whether s. 35(1) affirmed the rights of the Eagle Lake and Shawanaga First Nations to “participate in, and to regulate, gambling activities on their respective reserve lands.”[7]
Decision
After applying the test set out in R v Van der Peet, the Court found that “the gambling activities, and the bands’ regulation of those activities do not fall within the scope of the Aboriginal rights protected under s. 35(1).”[8] Although there was evidence that the Ojibwa people had traditions of public games and sporting events, which pre-dated the arrival of Europeans, these practices were not deemed as integral to their distinctive culture. [9]
(Note: For those that need a refresher on Van der Peet and the test for Aboriginal rights, check out last semester’s blog post!)
Until next time,
Team ReconciliAction YEG
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[1] Criminal Code, RSC 1985, c C-46, s 201(1) [Code].
[2] R v Pamajewon, [1996] 2 SCR 821 at paras 3-6, 138 DLR (4th) 204 [Pamajewon].
[3] Code s 206(1)(d).
[4] Pamajewon at paras 8-11.
[5] Pamajewon at para 20.
[6] Pamajewon at para 24.
[7] Pamajewon at para 26.
[8] Pamajewon at 36.
[9] Pamajewon at paras 26-28.
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