Manitoba government, MLLC sued over on-reserve smoking ban directive

A Manitoba First Nation is suing the province and its Crown-controlled liquor commission, alleging they are using gaming agreements as an illegitimate conduit to enforce an unlawful smoking ban on Indigenous land. 

Swan Lake First Nation sees VLTs cut off over resistance to Crown corporation edict, lawsuit claims

Swan Lake First Nation has two gaming operations, including one on an urban reserve in Headingley. (Tim Fontaine)

A Manitoba First Nation is suing the province and its Crown-controlled liquor commission, alleging they are using gaming agreements as an illegitimate conduit to enforce an unlawful smoking ban on Indigenous land. 

Swan Lake First Nation has filed a claim in the Court of Queen's Bench seeking a declaration Manitoba Liquor and Lotteries Corporation (MLLC) has crossed several legal lines by imposing a smoking ban through a June 2020 corporate directive — even going so far as to pull the plugs on Video Lottery Terminal (VLT) machines at one of its two gaming centres. 

The First Nation wants a judge to order the machines switched on again, as well as determine compensation for lost gaming revenue and punitive damages.

"Manitoba needs to be made an example of in order to prevent or deter such attempts at future abuses of power and dishonourable conduct from occurring again to the financial detriment and suffering of [Swan Lake First Nation] and other similarly situated First Nations in the future," lawyers for the band said in the claim. 

"[The band] has been unfairly and unjustly punished and coerced .... by a government who [has] acted well beyond the confines of law and accountable government."

The First Nation holds Treaty 1 territory in four areas of south-central Manitoba and signed its first VLT siteholder agreement with MLLC in 1999. Its gaming sites are located in Headingley and in Swan Lake. The latter is where MLLC has switched the VLTs off over the non-smoking dispute, the lawsuit said. 

A central contention in the band's claim centres around a siteholder agreement with MLLC inked in 2004, which it says doesn't mention regulating smoking. 

Yet, the claim says in its no-smoking edict a year ago, MLLC claimed to have the power under that agreement to deactivate the gaming centre's VLTs. 

"Manitoba, via the MLLC, is using First Nation VLT siteholder agreement non-smoking clauses and the non-smoking corporate directive as the proverbial back door to extend [smoking-ban legislation] to VLT designated areas in gaming centres on-reserve where such a law does not apply on its own right," the lawsuit charges. 

"The policy is directly contrary to other provincial legislation. This conduct can only be described as underhanded and dishonest, in addition to unlawful," the claim alleges. 

Province's actions harming reconciliation efforts, band claims 

The issue of the province enforcing smoking bans on reserves, which are governed by Indigenous and federal laws, has flared up from time to time in Manitoba since the late 1990s. 

It did so again late last year when the province tabled Bill 56, which ends an exemption under the The Smoking and Vapour Products Control Act for First Nations reserves and other areas of federal jurisdiction from a provincial ban on smoking and vaping.

The bill received Royal Assent on May 20. Ceremonial tobacco use is still allowed.

In condemning the legislation after it was introduced, Indigenous leaders decried a lack of consultation and slammed it as an intrusion into First Nations jurisdiction. 

Assembly of Manitoba Chiefs Grand Chief Arlen Dumas said in April Indigenous leaders received no advance notice of a bill directly affecting themselves, which he said is a failure of the province's duty to consult.

The lawsuit states the federal government, not provincial, is the entity responsible for health care on reserves. The province and MLLC don't have legal standing on this front, it says. 

"The MLLC does not have authority or any powers to regulate smoking specifically, nor promote public health goals generally anywhere in the province, let alone in a private First Nation business operating on-reserve," lawyers said. 

"Manitoba is taking the untenable position that MLLC can regulate non-gaming matters on reserve where it does not purport to have such authority off-reserve." 

The government's actions are getting in the way of reconciliation by hampering an Indigenous community's efforts to become economically prosperous, lawyers said. 

It cites Manitoba's Path to Reconciliation Act, in which cabinet ministers are to advance reconciliation through their work on their portfolios and across government. 

"This includes the Honourable Jeff Wharton, Minister of Crown Services, who oversees MLLC under his portfolio and the area of gaming," said the lawsuit. 

The allegations made in the statement of claim have not been tested in court and no statements of defence have been filed.