Manitoba's highest court will debate the province's smoking ban, with a focus on whether it should apply to First Nations bars and casinos.

The Court of Appeal agreed Thursday to hear the provincial government's appeal of a Court of Queen's Bench ruling in August that forced the province to extend its smoking ban to include First Nations bars and gaming establishments.

The ruling by Court of Queen's Bench Justice Albert Clearwater on Aug. 14 overturned the conviction of Treherne bar and motel owner Robert Jenkinson, who was charged with allowing smoking in his bar.

Jenkinson had argued that the ban, which exempted First Nations establishments, discriminates against non-aboriginal bar owners.

Clearwater rejected the relevant section of the Non-Smokers Health Protection Act, saying the ban should apply to First Nations as well as other establishments.

Jenkinson's lawyer, Art Stacey, said Thursday his client has a lot at stake in the Court of Appeal hearings, including "simply the continuation of his business.

"If we go back to the way the law was, with an unlevel playing field, I think it's fair to say that he truly believes that he won't be able to continue," Stacey said. "His customers will continue to choose to go where they can smoke, and why wouldn't they?"

Intervenor status not yet granted

The province announced in September that it would appeal Clearwater's ruling. A lawyer for the government said Thursday the province is happy it will get a chance to make a case for the existing ban.

A date has not yet been set for the hearing's start.

Justice Michel Monnin has yet to decide whether two aboriginal groups — the Roseau River First Nation and MKIO, the northern chiefs organization — will be allowed to take part in the appeal as intervenors.

Those groups argue that First Nations have the right to set their own smoking rules and are not subject to provincial law.

Jim Baker, president of the Manitoba Hotel Association, said he is anxious for the hearing to begin because business people want clarity on the issue.