Long fight ahead expected on tobacco litigation

First Nations in western Canada are taking steps to ensure the unimpeded sale of tobacco products among their people.

The Federation of Saskatchewan Indian Nations (FSIN) has prepared draft legislation for the sale of tobacco so its 74 members can adapt it to meet their community needs and enact it as a bylaw with the power to supersede provincial laws.

First Nations in British Columbia and Alberta have expressed interest in the legislation that Saskatchewan First Nations are moving forward with.

“With this… if we want to do trade with any First Nation tobacco supplier we can do nation to nation trading and (our bylaw) would supersede any provincial laws or bylaws that are taking place. That would exclude the province from having any jurisdiction in First Nation communities when we have our own legislation,” said Morley Watson, the FSIN vice chair.

Watson said the FSIN introduced the legislation as a means to ensure treaty rites such as tax exemption and economic development.

Chady Mousterah, legal counsel for the Montana First Nation, Montana Chief Carolyn Buffalo and Rainbow Tobacco Company, said the tobacco bylaw is a strong way to move forward.

“If the First Nations get together and form their own bylaws, which they are entitled to through their own acts, then they would clarify any grey areas and prohibit the enforcement of the provincial legislation,” said
Mousterah.

If the Montana First Nation were to adopt such a bylaw Mousterah is uncertain whether the bylaw would be retroactive.

“That’s an issue to be litigated . . . . There’s no clear answer to it whether it be retroactive or not, but certainly it would allow the trade,” said Mousterah.

Mousterah is acting on behalf of the three parties following the confiscation of Rainbow Tobacco products from a quonset on the Montana First Nation. Fourteen million cigarettes were seized by the RCMP and Alberta Gaming and Liquor Commission on Jan. 5 and are being held in an undisclosed secured facility.

Lynn Hutchings-Mah, spokesperson for the commission, said the government investigation is ongoing and no charges have been laid. She would not speculate as to when the investigation would conclude.

Mousterah expects to proceed with litigation as the province has not released the cigarettes.

At the heart of the matter is whether the province has the authority to seize tobacco from First Nations if that tobacco bears federal duty stamps, but not provincial demarcations.

In February, provincial governments in B.C. and Saskatchewan seized shipments of tobacco that were sent from Rainbow Tobacco Company to First Nations representatives in those provinces.

Rob Dickson, executive director for Rainbow Tobacco Company, located in Kahnawake Mohawk Territory in Quebec, said his company is advising First Nations in bylaw preparation and encouraged by their action. However, the company’s efforts will remain focused on the Montana First Nation.

“We will be concentrating our legal action in Alberta,” said Dickson.

Mousterah anticipates the issue will take at least a couple of years to be resolved.

“I’m sure there’s going to be interveners involved . . . be it the federal government, or provincial government because it is a constitutional issue,” he said.