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First Nation Challenges OLG in Ontario Superior Court

Wauzhushk Onigum, a First Nation tribe in Kenora, is currently at the helm of a judicial review happening at the Ontario Superior Court of Justice Divisional Court. It has been taking place this week, as a panel of three judges hears the allegations of Wauzhushk Onigum Chief Chris Skead. The tribe claims they were  wronged by the Ontario Lotteries and Gaming Corporation (OLG) and Ministry of Finance regarding their Kenora casino project.

The tribe has been working toward developing a casino property on its reserved land in northwestern Ontario for years. However, decisions made by OLG and the Ministry of Finance have destroyed those hopes.

That is the picture that Skead and Kate Kempton, OKT law firm attorney from Toronto, plan to paint for the judges as they seek a favourable decision from the Superior Court. The aim is to ultimately overturn those decisions, and enable the tribe to move forward with casino plans.

Kenora Casino Project: A Decade of Decisions

There are three decisions at the core of the Wauzhushk Onigum complaints. Two of which date back to 2012, and set the stage for the third.

The 2012 decisions involved the OLG issuance of a public tender for the development of a casino in the Kenora area and then the bundling of Kenora with other gaming zones. The former action invited large companies to come in with large bids for the land. The latter made the zone large enough to squeeze out small bidders.

Both of those situations led to the third decision, which happened in 2017. Gateway Casinos subsequently signed a 20-year agreement with OLG. The agreement involved it taking over three established casinos and building two more, one in the Kenora area.

Per the notice for the court hearing, written by the tribe:

“WON tried for years – from the early 2000s – to have Ontario and the OLG restore the ‘partial’ casino that WON had had on its reserve and expand it to a full casino operation. Ontario and the OLG, in a series of bad faith and unjust behaviours, forced WON to run past hurdle after hurdle, and when WON did, Ontario and the OLG simply kept moving the goalposts.”

Kempton told a reporter that it all culminated in an untenable situation for the tribe. “(The Ministry of Finance and OLG) created a scenario where Wauzhushk Onigum could not participate and their interests were not considered.” She added that it was a breach of law and shouldn’t have been allowed.

Skead also noted, “This is a case of bullying, of perpetuating rather than undoing colonialism. Ontario and OLG had all the power and wielded it to deny us.”

Four Days to Seek Justice

The four days of hearings in front of the panel of judges will find all sides represented. However, it is not technically a lawsuit.

Wauzhushk Onigum seeks an injunction to stop all parties involved in the 2017 deal from building a Kenora casino. That is until the tribe is given a fair and open opportunity to present its best case for enhancing and operating the casino already on the land.

Skead referred back to the treaty between the Anishinaabe people and the government when discussing the situation with reporters. He discussed the dire need for revenue to assist with the economic hardships that continuously plague his tribe.

Over the past decades, numerous U.S. and Canadian courts have heard argument for casino rights. Successful tribes have argued that casino operations provide both jobs and revenue for  reserve communities. They also brings awareness about the tribes, their successes and struggles, and their general history to casino customers and visitors.

While Skead did not assert that a casino would solve all problems, it would be a start. In addition, it would show respect from the government, and demonstrate a willingness to honour the treaty.

Skead and tribal gaming representative Patrick Brett are in attendance for the hearing this week.

Gateway Caught in the Middle

Gateway Casinos is not exactly an innocent bystander in the tribe’s court fight. Nevertheless, many say the company was merely doing business and made a solid deal with the OLG.

Others, however have doubts about Gateway Casinos and the company’s integrity. In late 2018, the company filed for an initial public offering to have shares traded on the US’ New York Stock Exchange. Documents made public through that filing showed that Gateway paid $79 million for the 20-year deal with OLG.

Further, the papers showed that stockholders were advised that there were risks to the Ontario casino deal. They were advised of possible union contract disputes and local planning problems in Sudbury. In addition to the “reputational challenge of operating in the gaming industry.” There was no mention of the Kenora casino project at that time.