The First Nations of Shawanaga and Eagle Lake passed laws allowing high stakes gaming to take place on reserve. The laws were not validly enacted under the Indian Act, however, the bands justified the laws as an exercise of their power of self-government. The bands were charged for keeping a common gaming house under s. 201 of the Criminal Code. They were convicted at trial and the convictions were upheld on appeal.
- Is the right to regulate gambling on reserve inherent in the aboriginal right to self-government?
The appellant argued that s. 35(1) grants a right of self-government to aboriginals, and that the right to regulate gaming activities on a reservation is inherent in this right. Lamer, writing for the majority, states that the right of self-government is no different than any other aboriginal right and thus must be measured by the same standard - the Van der Peet test.
The first step in the application of the test is to identify the exact nature of the activity claimed to be a right - in this case, the right to participate in and regulate high stakes gambling activities on the reservation. The next step is to determine whether the participation in, or regulation of, gambling on the reserve lands was an integral part of the distinctive cultures of the First Nations in question. Lamer finds no evidence that this was the case, finding only evidence of limited gambling which was not "integral" to Ojibwa culture.
More importantly, Lamer denies the appellants' claim that the right they were seeking was the broader “right to manage the use of their reserve lands”, finding this to be too broad a characterization. Aboriginal rights must be narrowly defined as each case is determined on its specific fact situation – broad based rights are not granted in court decisions.
L'Heureux-Dubé writes a concurring judgment agreeing with the outcome, but arguing that the rights should be framed more broadly with less emphasis on the specific manner they are manifested in the facts.
The first step of the Van der Peet test is to narrowly identify the exact nature of the activity claimed to be a right; generally this involves identifying the specific manner in which the "right" has been manifested.