Fri Jan 5 2007
By Mary Agnes Welch
TWO Manitoba First Nations have passed their own bylaws to circumvent the provincial government's shaky smoking ban.
Swan Lake First Nation, which operates a small VLT lounge in Headingley, and Buffalo Point First Nation both won the federal government's approval for their own butt bylaws, a first for Manitoba reserves.
The bylaws ban smoking in most public spaces such as stores, band offices and schools but allows restaurant, bar and bingo hall proprietors to set up designated smoking areas.
For now, though, Swan Lake's VLT lounge in Headingley will remain non-smoking, said Chief Robert Daniels, though a future band council may change that now that the band is armed with its own bylaw.
Buffalo Point in the province's southeastern corner runs a small VLT lounge and restaurant where smoking is permitted despite the provincial ban. Chief John Thunder expects any new developments on the reserve, including a planned $15-million hotel near the reserve's lakeshore golf course, to be smoke-free.
"The only reason we passed the bylaw was out of principle," said Thunder.
More bands are expected to enact their own bylaws in an attempt to sidestep the province's butt ban.
Brokenhead First Nation has already tried, but its smoking bylaw was rejected by Indian and Northern Affairs for technical reasons.
The bylaws are the latest in a confusing tug-of-war between the province, First Nations and the courts over whether the provincial butt ban should apply to every Manitoba business, including ones on reserve that are normally exempt from provincial regulations.
First Nations were exempt from the province's original anti-smoking laws, which crowded band-run casinos and restaurants with smokers and angered the owners of non-native establishments.
But a Manitoba Court of Queen's Bench ruling last summer struck down the section of the no-smoking law that spared First Nations from the provincewide ban.
That prompted the province to agree to abide by the ruling and enforce the smoking ban on reserves -- not by sending out provincial inspectors who may not have jurisdiction on reserves but by denying liquor or gaming licences to bands who refuse to ban smoking in their casinos, bingo halls or bars.
The province believes most bands will comply with the spirit of the ban over the next year or so in order to keep lucrative video lottery terminals ringing.
Meanwhile, the province is appealing the Court of Queen's Bench ruling, not because it doesn't want First Nations to abide by the butt ban but because it believes the ruling sets far-reaching precedent that could damage other programs meant to help aboriginals. If the appeals court agrees with the Queen's Bench ruling and forces First Nations to comply with the butt ban, that could render the new bylaws moot, say the chiefs.
"Maybe our bylaw is not worth the paper it's printed on," quipped Thunder.
Ottawa won't stop native reserves from bypassing provincial smoking laws
Steve Lambert, Canadian Press
January 03, 2007
WINNIPEG (CP) - Aboriginal reserves will continue to be able to bypass provincial smoking laws, despite pleas from non-native bar owners who say they are being discriminated against.
The federal government says it has no plans to stop the growing number of native band councils that are getting around provincial bans by passing their own bylaws that allow smoking.
"We try to respect First Nations rights to make their own bylaws," Bill Rodgers, a spokesman for Indian Affairs Minister Jim Prentice, said Wednesday from Ottawa.
"We have to respect the Indian Act."
Band councils in Manitoba and Saskatchewan, among the first provinces to adopt sweeping anti-smoking laws, have been adopting bylaws that allow smoking in casinos, bingo halls and restaurants.
Non-native bar owners say the uneven playing field has caused them to lose customers and money to on-reserve establishments.
"You have to work a lot harder to make less money," said Gary Desrosiers, who owns a bar in Brunkild, Man.
"Thriving rural bars that . . . were full on a Friday and Saturday night, now you go and there's a half-dozen people."
Manitoba's law banning smoking in almost all public places took effect in October 2004, the same month New Brunswick brought in a similar law. Saskatchewan followed suit in 2005, while Ontario and some other provinces enacted their laws more recently.
Manitoba's law specifically exempted native reserves, federal prisons and other areas where the provincial government felt it did not have jurisdiction.
A Court of Queen's Bench judge ruled last year the exemption violated the rights of non-natives to equal treatment under the law and ordered the province to apply the law on reserves.
But the province, along with some native groups, is appealing the decision.
Saskatchewan's law does apply on reserves - at least on paper.
Several band councils quickly acted on a section of the federal Indian Act that allows native bylaws to override provincial laws. They passed bylaws to allow smoking and set up smoker-friendly casinos near Prince Albert, Yorkton and other communities.
Aboriginal leaders have said their treaties are with the federal Crown, not the provinces, and they are simply protecting their existing rights.
Desrosiers and other bar owners had hoped the federal Conservatives, elected a year ago, would change government policy and no longer approve the native bylaws.
Now he says if neither the federal nor provincial governments are willing to enforce anti-smoking rules, the law should be dropped.
"If the province literally cannot control what happens on Indian reserves, then they shouldn't be trying to control what's happening off the Indian reserves in direct competition, because that's plain and simple not fair."
The federal government did reject a smoking bylaw passed recently by the Brokenhead Ojibwa Nation, but it was for technical reasons involving the legal description of the area covered by the bylaw.
The band is welcome to submit a revised proposal with the technical issues addressed, Marc Boivin of the Indian Affairs Department said from Ottawa.
Read
'Just a shack' -MB
November 4, 2006
By ADAM CLAYTON, STAFF REPORTER
New Headingley casino fails to win over gamblers
HEADINGLEY -- It's not exactly Caesar's Palace.
A gambling lounge run by Swan Lake First Nation opened in Headingley yesterday.
The lounge, which has 40 video lottery terminals, is housed in a non-descript building that resembles a wooden cabin beside the Trans-Canada Highway just west of Winnipeg.
Some of the people who visited the gambling lounge on its first day of business said they thought it would be more like a casino, with slot machines and a variety of VLTs.
"We were just passing through so we figured we'd stop and have a look," said a Lac du Bonnet man who would not give his name. "We figured there would be more here than what there is."
A Westwood man, who stopped by the lounge after having lunch nearby, said it's basically "just a shack."
"There's no ambiance," he said. "It's just a log cabin with a wooden floor and a bunch of VLT machines."
INDOOR SMOKING
Swan Lake First Nation is eyeing an indoor smoking area for the lounge. The band is awaiting approval from Ottawa for its own smoking bylaw, which would supersede a provincial smoking ban.
If the federal government signs off on the bylaw, the lounge could be divided into smoking and non-smoking rooms.
Chief Robert Daniels said the band might decide to keep the lounge smoke-free if that's what patrons want.
"We're going to take it one step at a time," he said. "We haven't made any firm decision as to what we're going to do yet."
Ken Marsh was one of several patrons who told the Sun they hope the lounge remains smoke-free.
"I just came out here to see what it was all about," said Marsh, 75. "I think it's good. But I hope they keep the smoking out of here."
Lynda Stevens and her husband, John, decided to check out the gambling lounge on their way back to Winnipeg from Winkler. Stevens said she wouldn't go back if smoking is allowed there.
"I won't go to South Beach, either," she said, referring to the native-run casino in Scanterbury, about 60 km north of Winnipeg. "I've been there and I won't go again because of the smoking."
Read
Manitoba to appeal smoking ban on reserves -MB
September 13, 2006
by Joseph Quesnel
The Province of Manitoba will appeal a decision by a Manitoba judge that extended the province’s smoking ban to First Nation communities, while insisting at the same time it will extend the existing ban to reserves and First Nations communities as long as it remains within provincial jurisdiction.
Dave Chomiak, the minister responsible for gaming, made the announcement at the Manitoba Legislature today.
"We’re going to obey the directive, but we are challenging the principle upon which it was made. This is not a black and white issue," said Chomiak.
In recent weeks, Justice Albert Clearwater of the Court of Queen’s Bench ruled against a provincial exemption for First Nation communities from the provincial smoking ban, arguing it offended constitutional equality provisions. It is this aspect of the ruling that the Province of Manitoba will appeal.
"This is a complicated issue," he continued. "It involves multiple governments, including the federal, provincial and municipal law, as well as treaty and First Nation rights."
"We’re going to protect all Manitobans from the effects of second-hand smoke, while respecting Aboriginal rights," he added.
Effective immediately, said Chomiak, the Manitoba Lotteries Corporation (MLC) and Manitoba Liquor Control Commission (MLCC) will require, through site agreements and liquor licences, that all new First Nation video lottery terminals (VLTs) and liquor sites must comply with the provincial Non-Smokers Health Protection Act.
First Nation casino agreements up for provincial renewal, he said, will also have to be negotiated with the provincial government and will include requirements for operators to comply with the Non-smokers Health Protections Act.
Chomiak, however, was not as specific on enforcement, instead shying away from the term.
"We’re not talking about enforcements. We’re talking about negotiations and time limits," said Chomiak, in responding to a reporter’s question about enforcement.
Chomiak was also not able to confirm whether the extension of the ban would apply to on-reserve restaurants and also establishments. He said there is the possibility of litigation of those issues between First Nations communities and the provincial government.
Those First Nations VLT sites and establishments with liquor licences that are already in existence will also have one year to comply with the provincial ban on smoking.
Chomiak also indicated that the government has taken issue with the Court of Queen Bench ruling that the equality provisions of the Charter of Rights and Freedoms were violated by the province’s exemption of Aboriginal reserves from the smoking ban.
"We don’t feel the ruling was correct," said Chomiak, in referring to the decision to apply the Charter to the smoking exemption for Aboriginal communities. The government, he said, is concerned how the decision to rule against differential treatment for Aboriginals will affect existing and future First Nation economic development.
Read
Profit sharing not appeasement
By ROCHELLE SQUIRES Fri, August 25, 2006
The province is not looking to cut a profit-sharing deal with natives to appease them in light of the pending smoking ban on reserves, says Dave Chomiak, minister responsible for gaming.
"That hasn't been a part of the discussions," said Chomiak, adding the profit-sharing discussions have been on-going since 2003.
The province's smoking ban became an issue last week after the Manitoba Court of Appeal struck down a section of the legislation exempting first nations. The Manitoba government has not stated if it will appeal the ruling.
Read
Fair share debatedBy ROCHELLE SQUIRES, LEGISLATURE REPORTER Fri, August 25, 2006
Natives want portion of gaming cash
The Manitoba government is negotiating a profit-sharing deal with natives who want at least 12% of the province's annual gambling profit over five years and exclusive authority over gaming on First Nations.
Ian Cramer, business advisor for the Assembly of Manitoba Chiefs (AMC), said natives make up 12% of Manitoba population and therefore should receive an equal portion of the revenue generated from all casinos, bingo and video lottery terminals across the province.
"The goal is to create revenue so that First Nations can begin to increase their standard of living in Manitoba," said Cramer. "Through gaming, we can close the gap between First Nations and the rest of Manitoba."
Twelve per cent of this year's estimated profit from Manitoba Lotteries Corp. is $34 million.
First Nations keep all profits from the two on-reserve casinos and 90% of all VLT revenue from on-reserve sites.
"That money is used to develop the First Nations," said Cramer.
The AMC is also asking the province for authority over all gaming activity on reserves.
The proposed First Nations Gaming Corp. would replace Manitoba Lotteries Corp. (MLC) as the regulating body on reserves and oversee on-reserve VLTs, bingo games and casinos.
LOTTERY PROFITS
"It would take over from the MLC and conduct, manage and control all First Nations-operated VLTs and casinos," said Cramer.
Dave Chomiak, the minister responsible for gaming, confirmed yesterday the province is prepared to share a portion of lottery profits with First Nations.
"The concept is to provide a base funding for First Nations to do economic development," said Chomiak, adding they've been in discussions since 2003 and are a long way from finalizing an agreement.
He would not comment on the amount of money the province is prepared to share.
"We're just negotiating. I'm not going to comment on a figure."
The Manitoba government is also considering creating an independent First Nations gaming authority and building more on-reserve casinos, Chomiak said.
A request-for-proposal was put out by the government on June 19 for a feasibility study to determine if there's an opportunity to build more on-reserve casinos.
"We're always looking for economic opportunities," said Chomiak.
Many people believe gambling should not be a tool to bolster poverty-stricken communities.
"Casinos are not the panacea to end poverty," said Tanis Fiss, aboriginal policy director with the Canadian Taxpayers Federation.
Cramer acknowledged the risk associated with gambling and said responsible gaming initiatives would be implemented to minimize the effects of gambling addiction among the native population.
Read
Casino vows to fight law
By CHRIS KITCHING, STAFF REPORTER Wed, August 16, 2006
Smoking on reserves called treaty right
BROKENHEAD OJIBWAY NATION -- South Beach Casino's popularity and success wouldn't be threatened if a provincial smoking ban were extended to First Nations, the chairman of the native-run casino says.
The casino on Highway 59 would continue to thrive if puffers were forced to butt out because fewer than 10% of its total patrons are smokers, said Furlon Barker, head of South Beach's governing board.
The figure is based on observations by staff and data collected from customers.
"We don't feel smoking is a major reason why we're successful," Barker said yesterday.
However, the casino will do what is necessary to protect its smoker-friendly status, Barker said.
Casino officials are waiting on the Assembly of Manitoba Chiefs and province to act on a judge's decision Monday to strike down the section that exempts First Nations from provincial smoking legislation.
"Such an act would be a violation of our given right ... the province cannot impose that law on First Nation land," Barker said.
South Beach is on Brokenhead Ojibway Nation land in Scanterbury, about 60 km north of Winnipeg.
It is operated by an ownership group of seven First Nations and is one of two native-run casinos in Manitoba. The other is the Opaskwayak Cree Nation-owned Aseneskak Casino near The Pas.
Aseneskak management declined comment about the court ruling.
In a written statement, the Assembly of Manitoba Chiefs said it is concerned because the ruling says aboriginal businesses have an unfair advantage.
AMC argued non-aboriginal businesses have received significant benefits from the federal and provincial levels of government.
FULL DISCUSSIONS
Grand Chief Ron Evans wants to meet with Premier Gary Doer and federal Indian Affairs Minister Jim Prentice "to ensure that all parties understand and will uphold the treaty rights of First Nations within Manitoba," the statement released yesterday stated.
"AMC will also be seeking a commitment from the governments of Manitoba and Canada that any actions that affect First Nations will only occur following full and informed discussions and agreement with First Nations, as required under Canadian law," Evans said in the statement.
Read
Tory leader supports smoking ban on reserves -MB
By Rochelle Squires Wed, August 16, 2006
Tory leader Hugh McFadyen says indoor smoking should be banned in all public places, including Indian reserves, rural areas and urban centres.
“It’s a matter of fairness when you have two different sets of rules that apply to different people in the province,” said McFadyen.
The comfort and rights of non-smokers should override the rights of smokers, he added.
McFadyen was responding to Justice Albert Clearwater’s ruling on Monday that the provincial smoking ban is unconstitutional because the province exempts reserves from the legislation.
The province has to decide if it will appeal Clearwater’s ruling or implement the smoking ban on reserves.
The NDP government met behind closed doors yesterday to discuss options but no decision was reached.
Premier Gary Doer was not at the meeting and is currently away on vacation.
Healthy Living Minister Theresa Oswald said a decision is forthcoming but not until all “stakeholders” have been contacted.
“We did begin our conversation this morning but we did not come to a conclusion as to what the process will be,” said Oswald.
The minister said they may possibly meet with members of First Nations who are opposed to the province applying the legislation on reserves.
“We’re not closed to that,” she said.
The Assembly of Manitoba Chiefs have requested a meeting with Premier Gary Doer to discuss the ban. Many other native leaders have vowed to fight any measures taken by the province to legislate the ban on reserves.
Read
Editorial cleared the air
Re: Let's clear the air (Aug. 17).
Winnipeg Free Press Letter to Editor- Aug 22/06
Your editorial is one of the most lucid I have ever read in the mainstream media about the smoking issue. Indeed, not only the Manitoba government, but all provincial governments have imposed their respective anti-tobacco legislations to appease the noisy anti-smoking lobbies. This has nothing to do with health and everything to do with politics, pharmaceutical companies' interests and greedy, voracious anti-tobacco lobbies.
As you so well stated, every cancerogenic substance has permissible exposure levels and second-hand smoke is no exception. It is a pity that the governments have artificially created such a deplorable situation where one segment of the population has to turn against the other in order to defend its livelihood and civil rights.
IRO CYR
Blainville
-------
EDITORIAL - Let's clear the air
Thursday's Free Press Editorial: Thu Aug 17 2006
PREMIER Gary Doer's province-wide smoking ban was flawed from the outset, imposing upon some businesses, but not all, a smoke-free rule rooted more in social activism than health protection. Now the Non-Smokers Health Protection Act has been found to be insupportably discriminatory by a Manitoba Court of Queen's Bench justice, who says the exemption for First Nations communities cannot stand. This legal wrangle is not worth an appeal because there is a more logical fix to be made.
Mr. Justice Albert Clearwater is giving the province time to get the First Nations businesses to comply with a universal smoking ban. That creates a political problem for the NDP, which has historically benefited from the political support of native communities. At the time the law was implemented, the minister responsible said the government did not want to intrude into First Nations businesses because it feared a lawsuit. Muddled thinking produced a muddled law -- and a fine against a Treherne bar owner angered at the uneven application of the law sparked a lawsuit anyway. Healthy Living Minister Theresa Oswald was asked if an appeal was planned and said a response to the Clearwater ruling is complicated because governments must respect the rule of law and treaty rights of First Nations. She did not explain what treaty right a smoking ban would trample, probably because no treaty struck on the Prairies protects smoking. No decision was taken at yesterday's cabinet meeting.
The NDP government is in a bind because the law was imposed to appease a noisy anti-smoking lobby, not to protect health. Smoking fogs indoor air with toxic chemicals, but the public is not forced to patronize any particular private business. It is a different for employees, some of whom may be exposed to varying amounts of smoke for most of their shift, most of the days they work. Air quality tests can detect carcinogens and their concentrations and Manitoba labour law already expects employers to reduce airborne carcinogens as close to zero as practicable. The province has authority over workplace safety on reserves and over most First Nations businesses. It can use Workplace Safety and Health legislation to force employers to clean the air of a cigarette's toxic byproducts. It has no excuse for not protecting native and non-native workers, regardless of where they are employed.
First Nations were quick to warn off the provincial government from imposing a smoking ban on their businesses, and so the NDP may want to just let a judge decide if there can be one rule for them and another for everyone else. A principled solution would be to put into a law that everyone can recognize as good the right of all Manitoba workers to a safe workplace. If an employer cannot sufficiently exhaust the smoke from its business to meet acceptable air quality standards, then smoking ought to be banned. Otherwise, that employer should decide if his business goes smoke free, and the public can choose to stop in, or patronize the competition.
-------
Poll: Should the provincial no-smoking ban include Manitoba First Nations casinos?
Poll Results August 16, 2006
Yes 27%
No 73%
Undecided 0%
Total Votes: 1327
No victory celebration for man who took on ban -MB
Wed Aug 16 2006
By Mia Rabson
TREHERNE -- Robert Jenkinson certainly didn't look like the cat that swallowed the canary yesterday.
In fact, a little over 12 hours after he found out the charges levied against him for allowing people to smoke in his Treherne bar had been dropped, Jenkinson was quiet and pensive, not jumping for joy.
"It's a huge mountain that I climbed," said Jenkinson, owner of the Creekside Hideaway in Treherne, about 111 kilometres southwest of Winnipeg. "I am so elated but I'm overwhelmed. It's still sinking in."
Jenkinson, 38, never envisioned taking on the government when he built the Creekside Hideaway four years ago. He spent four years building pipelines from British Columbia to the Atlantic, and every time he came home he saw the burned-out remnants of the old Treherne bar and finally decided it was time to build a new one.
But when the government came at him with the smoking ban -- and the news that it wasn't going be enforced on First Nations -- he wasn't about to just nod and smile.
Jenkinson openly flouted the law, keeping ashtrays on the tables and allowing customers to puff away in public. Instead of the government-provided no smoking signs, he posted signs that said "Enter at your own risk. Smoking facility."
For all that he was charged under the Non-Smokers Health Protection Act and fined $2,550. And then Jenkinson took those charges and fought them in court.
"I just didn't understand how we could have different laws for different people," said Jenkinson, who estimates his business has plummeted 40 per cent since the smoking ban was enacted on Oct. 1, 2004.
He said all his friends and family told him not to fight the government but he didn't mind playing David to the government's Goliath.
He lost the first round when a provincial court judge upheld his convictions, but on Monday Court of Queens Bench Justice Albert Clearwater overturned the convictions on appeal. Clearwater also instructed the government to strike down the exemption of First Nations in the smoking ban law, and begin enforcing it on First Nations after giving them a reasonable time to comply.
Jenkinson said the news was surprising because he wasn't expecting to win.
"I was so relieved," he said. "When you have two sets of rules for doing business it's wrong."
He said the government has to find a way to make this a level playing field, and while he'd like to have the ban retracted completely, he'd be happy if the government just followed Clearwater's orders and applied the ban to First Nations as well.
"What we're looking for here is equality," he said.
But he's not holding his breath or planning a victory dance just yet. The province is still deciding whether to appeal the decision.
"I think probably some time soon we'll celebrate but we'll have to wait and see what the government's response is and we'll go from there."
Bans at a glance
New Brunswick enacted its province-wide smoking ban Oct. 1, 2004, the same day as Manitoba. The two provinces were the first in the country to do so. New Brunswick's law applies to all workplaces and public places including First Nations.
* The province-wide ban in Saskatchewan was enacted Jan. 1, 2005. It is virtually identical to Manitoba, and also exempts First Nations. The four First Nations casinos in Saskatchewan continue to allow smoking.
* Ontario's smoking ban came into effect on May 31, 2006. It is considered to be applicable on First Nations, though there is a provision noting First Nations can pass their own bylaw to opt out of the ban and allow smoking in public on reserve.
* Quebec banned smoking indoors in public on May 31, 2006, and extended the ban to include the entrance ways to hospitals, schools and child-care centres, which is thus far unique to Quebec's law. It is considered to be applicable on First Nations including in bingo halls. There are no First Nations casinos in Quebec.
Read
First Nations Allows Smoking...
New casino becoming victim of its own success -MB
CBC News Last Updated: Thursday, August 3, 2006
Manitoba's newest casino is so busy, it cannot handle the number of customers who want to plug a penny slot or play a hand of blackjack.
The South Beach Casino, located on the Brokenhead First Nation near Grand Beach, opened just over a year ago.
The operators of the native-owned casino say customers are waiting so long to use slot machines, they often give up and leave.
Furlon Barker, chair of the South Beach board, said the casino wants permission from the province to increase the number of slot machines from the current 300.
"Our goal is to double what we have," he told CBC News. "We need at least a minimum of about 150 machines more to be able to accommodate the demand."
So far, provincial officials have turned down the casino's request.
The government said it will not consider adding machines until May 2007, as set out in the terms of its agreement with South Beach.
Read
Casinos to become smoke-free on June 1 -ON
May 15, 2006
STAN JOSEY STAFF REPORTER
First Nations to follow province Public, staff supported ban
The days of puffing while playing the slots at casinos across Ontario will come to an end June 1 with the implementation of Ontario's new smoking ban that requires all public and work places to be smoke free.The ban will include Casino Rama near Orillia and the Great Blue Heron Charity Casino near Port Perry — Ontario's only two casinos built on natives' land.At Casino Rama, the Mnjikaning First Nation has passed a bylaw similar to the one adopted by the Ontario government, said spokesperson Jenna Hunter. Hunter said that no smoking will be permitted inside the building with the exception of some hotel rooms. In the case of the Great Blue Heron, the Mississaugas of Scugog Island, who own and claim legal jurisdiction over the casino located on their reserve, say they have given in to pressure from patrons and staff and will ban smoking entirely at the end of this month. "Many employees and customers have come to expect smoke-free facilities and the Mississaugas of Scugog Island First Nation will make their smoke-free regulations effective at the same time as Ontario's," Chief Tracy Gauthier said in a statement.The casino was given an exemption from Durham Region's smoke-free bylaw two years ago when the First Nation asked for time to consider its effects. Gauthier said input from casino patrons and the operation's 700 employees has convinced community leaders it is time to ban the butts. Ontario Lottery and Gaming Commission spokesperson Teresa Roncon said all other casinos will go smoke-free by month's end.
Read
Injunction over smoking in Yorkton casino on hold
Karl Kopan
Saskatchewan News Network; Regina Leader-Post
August 10, 2005
Karl Kopan Saskatchewan News Network; Regina Leader-Post August 10, 2005 YORKTON -- A court injunction filed by the City of Yorkton against the Sakimay First Nation over smoking at the city's Painted Hand Casino is on hold.
City council is seeking the injunction to force Sakimay, which runs the casino in the city, to adhere to a bylaw that calls for no smoking in all enclosed public places.
The city filed a statement of claim against Sakimay last month. The First Nation owns the property that is leased to the casino.
The matter was heard by Justice Ted Zarzeczny Monday in the Yorkton Court of Queen's Bench.
Wayne Rusnak, lawyer for the city, was to argue the city's side, but no lawyer was present for Sakimay and no materials were on file from a lawyer for the defendants.
Zarzeczny said he had concerns with the city's ability to move forward.
He said a statement of claim is not usually accepted by the court without a statement of damages, the Saskatchewan Indian Gaming Authority (SIGA) was not named as a defendant in the case -- something Zarzeczny felt was necessary; and he said there was a "lack of clarity" between material submitted to the court and the application.
Zarzecny said although a service agreement is in place between the city and Sakimay for the operation of the downtown Yorkton casino, no penalties or enforcement details of the city bylaws are mentioned in the agreement.
He ordered Rusnak to write a letter to SIGA and Sakimay identifying the next court date. He specified the letter should request the two parties have representatives attend. If there is no legal representation, Zarzecny said Sakimay and SIGA should be aware the court could move the application forward without them.
The matter was adjourned to Aug. 22.
Later Monday during a city council meeting, Coun. Chris Wyatt, who supported the city moving forward with the injunction, said breaches of the smoking bylaw have to be enforced to make sure everybody is treated the same.
If the city is successful in court, Wyatt said it will be up to council to decide whether to discontinue water, sewer and other city services to the casino
With all four First Nations casinos in the province now allowing smoking, the NDP government has all but given up its efforts to bring them in line with the provincial ban on indoor public smoking.
The Painted Hand Casino in Yorkton began allowing smoking in 40 per cent of its area on Thursday even though it had previously followed the city's anti-smoking bylaw.
Deputy Premier Clay Serby, who represents the Yorkton constituency, said he was disappointed but not surprised by the decision.
In two meetings with the Federation of Saskatchewan Indian Nations on the smoking issue about a month and a half ago, First Nations representatives made it clear that smoking would be allowed in native casinos in Prince Albert, North Battleford and White Bear First Nation and possibly in Yorkton as well, said Serby.
After the government's strategy of moral suasion did not work, it now simply hopes the First Nations will eventually change their mind on the smoking issue.
"We tried, we tried to influence the First Nations communities and leadership, particularly the leadership, to recognize the importance of our no-smoking laws in the province. We tried to get them to go there. At the end of the day they made it very clear to us this would be a decision they would make . . my sense and hope will be we'll see a reversion from the decisions they're making today from 60-40 to full compliance," said Serby.
Serby said the province must respect aboriginal jurisdiction. Under the federal Indian Act, a First Nation's smoking bylaw trumps the provincial law that came into effect on Jan. 1.
While the government hoped the federal Indian and Northern Affairs Minister would use his power to disallow the first smoking bylaw to come before him, he did not. Now all four First Nations that own the casino land have passed bylaws allowing smoking.
Calls to the FSIN were not returned Friday. The Saskatchewan Indian Gaming Authority, owned by FSIN and independent First Nations, administers the four casinos and will run two new ones planned for Swift Current and near Saskatoon.
Serby said the government chose not to take a carrot-or-stick approach with First Nations, rejecting options such as sweetening their gaming agreement or threatening to pull licenses if they did not comply.
In question period Friday the government came under sharp attack on the issue from the Saskatchewan Party, with Cannington MLA Dan D'Autremont saying the government had misled MLAs last year into thinking First Nations would abide with the law.
"The Minister of Health promised a level playing field for all businesses. The minister promised he had done his homework," he said in the legislature.
Prior to the passing of the NDP's anti-smoking legislation in last spring's legislature sitting, the Saskatchewan Party had planned to delay its passage until the fall in order to hold hearings.
It relented under public pressure and in a free vote the anti-smoking bill was passed on the last day of the sitting with the support of 19 Saskatchewan Party MLAs.
Opposition Leader Brad Wall told reporters Friday that some of his MLAs may have voted differently if they had known there wouldn't be compliance by First Nations casinos.
And the Opposition would almost certainly have pushed back its passage until the fall, he said.
"A Sask. Party government will simply not pass legislation that impacts other's jurisdictions, and there's First Nation's jurisdiction here to be sure, we will not pass legislation until we have worked out an arrangement with those parties," said Wall.
Nilson told reporters that he had consulted with First Nations beforehand and last June he was confident they would comply with the provincial law, following the lead of the Painted Hand casino.
The Sakimay First Nation, which owns the land the Painted Hand Casino is on, passed its own bylaw that allows smoking a month ago.
Harold Smith, Sakimay's director of operations, said the band put in the bylaw to support the FSIN's position.
"When we allow the province or anybody to come on to our land to tell us what to do, that affects the treaties. And to me that's the stand we have to take. It's unfortunate it has to be smoking . . . but we feel the province has no jurisdiction on our land to tell us what to do," he said in an interview.
