Gamble could prove costly
The Leader-Post, Monday, December 11, 2006
To use a tired but true gambling reference, the Federation of Saskatchewan Indian Nations (FSIN) would be needlessly rolling the dice if it decided to proceed with a plan to go it alone on gaming.
At the recently concluded special session of the FSIN legislative assembly, Chief Lawrence Joseph suggested just that, saying the current gaming agreement with the provincial government should be scrapped.
His reasoning is not without merit, but also not without pitfalls.
Joseph and other native leaders have long argued that on-reserve gaming should be completely controlled by First Nations as part of their inherent right to self-government — and should not be subject to provincial control. It is a strong argument, but untested where it counts most — in court.
There are also legitimate monetary reasons for the FSIN to want complete control of on-reserve gaming. Under the 2002 Framework Agreement that governs on-reserve gaming in Saskatchewan, the provincial government not only controls where the profits go, but is also entitled to 37.5 per cent of the net take, which this year amounts to about $15 million. That money goes into the province’s general revenue fund, and is not necessarily spent in areas that provide direct benefits to First Nations people.
At the special assembly, Joseph argued the FSIN can walk away from the gaming agreement as early as June. That interpretation is based on a provision in the 2002 deal that allows for renegotiation over the next six months. The FSIN believes the clause means it could quit the deal and forge ahead on its own, thus gaining complete authority over on-reserve gaming and the profits that go with it.
However, that scenario will not play out without resistance from the provincial government. In response to the FSIN plan, the minister responsible for the Saskatchewan Liquor and Gaming Authority, Deb Higgins, said that native leaders do not have the authority to simply walk away from the agreement, which she argues remains in effect until 2027.
The greatest challenge faced by the FSIN is that, under the Criminal Code, provincial governments have the authority to regulate all gaming operations within their jurisdictions, including those on-reserve.
If the FSIN were to make good on its promise to go it alone, it might well have to go to court to argue its inherent rights trump the Criminal Code’s provisions authorizing provincial regulation. The result could be a costly court battle that, in a worst-case scenario, might result in lengthy closure of on-reserve casinos until the matter is settled.
Control of on-reserve casinos has long been a matter of contention between First Nations and the Saskatchewan government. The most serious confrontation took place in the early 1990s when a casino on the White Bear First Nation — which opened without provincial approval — was closed down after a high-profile raid by the RCMP. That led to a long court battle that ended in 1995, when the province and the FSIN negotiated their first gaming agreement. Since then, there have been other jurisdictional fights, some of which can be considered First Nations victories (controlling smoking at on-reserve casinos) and others in which the province has prevailed (maintaining the authority of the provincial auditor to examine the books of the Saskatchewan Indian Gaming Authority).
Since that first deal, four native-run casinos have opened — at White Bear, Yorkton, North Battleford and Prince Albert — and two more are in the works for Swift Current and the Saskatoon area. These casinos have provided considerable benefits for both First Nations and the provincial government. They have realized huge profits and good-quality jobs have been created for First Nations workers.
What is unfortunate about this new dispute is that these benefits might be jeopardized if the two parties cannot come to an agreement that is satisfactory to both sides.
Perhaps there are provisions within the existing agreement that can be modified to help assuage First Nations concerns, while satisfying the province’s desire to retain jurisdictional control. Changes that result in more money going directly to help First Nations people would be a good starting point.
What the FSIN must consider when planning for the future is that scrapping the current agreement and attempting to go it alone carries with it long odds and considerable chance for failure.
© The Leader-Post (Regina) 2006
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