Carissima Mathen, “A Precarious Chancy Situation”: Aboriginal Gaming Rights in Canada

Working Abstract

For generations, Canadian constitutional law has struggled to reconcile notions of sovereignty and political community as they relate to Aboriginal peoples. While a watershed moment, the inclusion of section 35 in the Constitution Act, 1982, has had only sporadic impact on the day to day Aboriginal experience. Modern cases invoking Aboriginal rights tend to involve a conflict over resources such as land, waterways, forests or fish. Aboriginal concerns, though, are not limited to commercial or quasi-commercial ventures. This article addresses the as yet (largely) unexplored area of Aboriginal gaming. Modern-day gaming is marked by highly intermingled social and commercial factors. Attempts to regulate it clearly cannot be justified by arguments about scarcity of resources but must draw upon the power of the Canadian state to set acceptable boundaries for social interaction. This article discusses the cultural significance of Aboriginal gaming; the history of the gaming provisions in the Criminal Code; and the constitutionality of unapproved gaming operations utilizing the current framework of section 35 with some attention to the interrelation between Aboriginal rights and criminal law. The picture that emerges is complex and multi-faceted, reflecting powerful mechanisms by which the Canadian state continues to control Aboriginal peoples, communities and identity.

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