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Council launches legal challenge against Ontario on gaming

Courtesy Madison Van West

A multi-billion-dollar juggernaut is in the crosshairs of the Mohawk Council of Kahnawake (MCK).

On Monday, the MCK filed a notice of application with the Ontario Superior Court against iGaming Ontario (IGO) and the Attorney General of Ontario in a bid to have the whole system shuttered, arguing it conflicts with federal law.

“Somebody needs to hold their feet to the fire. It might as well be us,” said MCK chief Mike Delisle, Jr.

iGaming, an entity of Ontario’s provincial government and subsidiary of the Alcohol and Gaming Commission of Ontario (AGCO), has furnished dozens of private online betting sites with a sheen of legitimacy. 

However, Mohawk Online Limited, which is wholly owned by the MCK and whose profits flow back to the community, has been locked out of the behemoth Ontario market due to its refusal to participate.

“It’s a compromise of the jurisdiction we have built over 25 years,” said Delisle in explaining the boycott.

The community has regulated its own gaming operations during that span through the Kahnawake Gaming Commission, which was founded in 1999.

“Why should we go to a foreign jurisdiction on top of the fact of having to pay a substantial amount, 20 percent plus?”

The revenue from online gaming has become a critical pillar of the community’s finances, which are used to fund all sorts of local social programs and organizations.

“If, in fact, the industry dries up and our jurisdiction doesn’t get recognized, there’s going to be a huge impact financially,” Delisle said.

The crux of the MCK’s legal argument, expressed in the application that was filed on its behalf by Olthuis Kleer Townshend LLP, is that because the province of Ontario is not conducting and managing the online lotteries directly – as required by the Criminal Code – the system implemented by Ontario is illegal.

However, the filing also outlines Kahnawake’s jurisdictional claims. “The traditional territory of the Mohawk extends through vast regions of what is currently referred to as Quebec, Ontario, and the northeastern United States. This traditional territory has never been ceded, leaving full Mohawk title and interests intact,” it reads.

“We believe and have felt since we first launched in 1999, provinces – specific to Quebec as well as others – have questioned our legality and our ability to do so, but we’ve never been legally challenged in terms of ‘you can’t do this,’” said Delisle.

The document also refers to Kahnawake’s long-standing interest in gaming, referring to wagering as a part of Kanien’kehá:ka culture since “time immemorial.”

Kahnawake is not the first Indigenous community to express its dissatisfaction with the regime, with the Mississaugas of Scugog Island First Nation, for example, condemning the plan back in January.

As far as Delisle knows, no similar legal action has been taken against Ontario.

“We’re hoping to rally the troops and circle the wagons in Indigenous country everywhere,” said Delisle, adding that this issue is a good place to start in terms of the Trudeau government’s stated intention to collaborate with Indigenous partners across Canada.

Fears related to gaming were first stoked by changes to the federal law that legalized single-event sports betting with Bill C-218 last year, and Delisle expressed a concern that other provinces could develop their own regimes similar to iGaming if it is not halted.

Meanwhile, Ontario declined to comment, citing the legal proceedings.

“The Alcohol and Gaming Commission of Ontario (AGCO) is responsible for regulating the alcohol, gaming, horse racing and cannabis retail sectors in accordance with the principles of honesty and integrity, and in the public interest,” said a statement sent to THE EASTERN DOOR attributed only to the AGCO communications team.

“The Government of Ontario is leading discussions with First Nations on all matters related to internet gaming, and we recommend you reach out to the Ministry of the Attorney General for comment on this matter.” 

This ministry was no more forthcoming, however, when asked to comment on its inclusion or lack thereof of First Nations in Canada.

“Ontario has been served with a notice of application and is reviewing it,” said Maher Abdurahman, spokesperson for the ministry. “As this matter is before the Courts, it would be inappropriate to comment further.”

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Marcus is managing editor of The Eastern Door, where he has been reporting since 2021 on issues that matter to Kahnawake and Kanesatake. He was previously editor-in-chief of The Link and a contributing editor at Our Canada magazine.

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Marcus is managing editor of The Eastern Door, where he has been reporting since 2021 on issues that matter to Kahnawake and Kanesatake. He was previously editor-in-chief of The Link and a contributing editor at Our Canada magazine.