The Canadian Lawyer reports
The New Brunswick Court of Appeal recently said that the province’s Lotteries and Gaming Corporation had the obligation to share net profits from video gaming devices used at the casino on Madawaska First Nation’s reserve.
In 2007, the Province of New Brunswick and Madawaska First Nation entered into an agreement respecting the operation of gaming on Madawaska’s reserve under s. 11.2(1) of N.B.’s Lotteries Act, 1976. The New Brunswick Lotteries and Gaming Corporation started paying Madawaska 95 percent of net profits from the reserve’s video lottery terminals managed by the Atlantic Lottery Corporation.
In 2008, N.B.’s Gaming Control Act repealed the Lotteries Act but continued enforcing s. 11.2 through s. 24. Like s. 11.2(4)(b) of the Lotteries Act, s. 24(5)(b) of the new legislation provided that the Gaming Corporation could pay a First Nation 95 percent of net profits from on-reserve gaming that utilized video gaming devices.
In July 2019, Madawaska asked the Gaming Corporation to share the net profits from video gaming devices used at the casino on its reserve in line with s. 24(5)(b). Madawaska argued that devices used at the casino were the same type as the ones that the Atlantic Lottery Corporation used.
In an October 2019 letter, the Gaming Corporation advised Madawaska that it could not share profits from gaming devices used in casinos. It interpreted video gaming devices under s. 24(5)(b) as only including devices that were part of the video lottery scheme managed by the Atlantic Lottery Corporation under the Video Lottery Scheme Regulation, N.B. Reg. 2008-112.
In a January 2020 letter, the Gaming Corporation reiterated that video gaming devices under s. 24(5)(b) did not include gaming devices used in casinos. It concluded that it had no ability or obligation under s. 24 to pay Madawaska a share of the profits generated from gaming conducted on video gaming devices at the casino on its reserve.
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