R v Pamajewon
Court: Supreme Court of Canada
Citation:  2 S.C.R 821
TAGS: Self-government; Gambling
Claims for self-government are no different than claims for other Aboriginal rights and, therefore, should be judged by the standard found in R v Van der Peet.
Two members of the Shawanaga First Nation were found guilty of keeping a common gaming house contrary to Canadian Criminal Code. The Shawanaga Band Council had enacted their own laws regarding gambling on reserve. Three members of the Eagle Lake First Nation were found guilty of conducting a scheme for the purposes of determining the winners of property contrary to the Canadian Criminal Code. Eagle Lake First Nation Band Council had also enacted their own laws regarding gambling. All five appellants were convicted at trial. The Ontario Court of Appeal rejected the argument that the convictions violated the bands’ rights to self-government.
The question raised on appeal to the Supreme Court of Canada was if the specific provisions of the Canadian Criminal Code (s.201, s.206 and s.207) were of no force and effect with respect to the appellants by reason of the right to self-government falling within the meaning of s.35 of the Constitution Act 1982. Section 35 of the Constitution Act 1982 recognizes and affirmed existing Aboriginal and treaty rights.
The Supreme Court of Canada found that the applicable test was set out in R v Van der Peet: “in order to be an aboriginal right an activity must be an element of a tradition, custom or practice integral to the distinctive culture of the aboriginal group claiming the right” (R v Van der Peet,  2 S.C.R 507, para 46). The Supreme Court of Canada recharacterized the appellants claim from a right to manage the use of their reserve lands to a right to participate in and regulate high stakes gambling on reserve. The Supreme Court of Canada held that the appellants failed to prove that their gambling activities and their bands’ regulation of those activities took place pursuant to an aboriginal right recognized and affirmed by s.35 of the Constitution Act 1982.
Why this Case Matters:
R v Pamajewon illustrates that a claim for a right to self-government under s. 35 of the Constitution Act 1982 will be adjudicated under the test set out in R v Van der Peet. A claim for self-government is treated the same as a claim for any other Aboriginal right under s. 35 of the Constitution Act 1982. R v Pamajewon also provides an example of the court recharacterizing the appellants claim due the claim being too broad.
Supreme Court Judgment: