First Nations assert jurisdiction over smoking laws

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As more and more municipal and provincial governments bring in laws to ban smoking in enclosed public places, the jurisdiction of First Nations governments over their own territories is coming into question.

In Saskatchewan, where a province-wide ban on smoking in all enclosed public places is scheduled to kick in on Jan. 1, the Federation of Saskatchewan Indian Nations (FSIN) has indicated it has no plans to follow suit in the four casinos operated by the Saskatchewan Indian Gaming Authority (SIGA).

Attempts to question FSIN representatives about specific plans to address smoking within the casinos were unsuccessful, but in a media release issued by the federation, First Vice-Chief Morley Watson made it clear that whatever decision was to be made, it would be made by the FSIN and the First Nations.

"There is a temptation to frame this as a health issue, a casino issue or a smoking issue. That is simply not the case," Morley said in the prepared statement. "The issue is jurisdiction, and within that, the ability of First Nations to create their own laws that are truly reflective of their communities. The right to do so has been in existence and utilized for years. It is true today. It will be the case in the future."

He pointed to other First Nation governments in the province that had already passed their own laws regarding smoking in public places, including the Lac La Ronge Indian Band and the Saskatoon Tribal Council, both of which have brought in smoking bans.

Jocelyne Wasacase, director of communications for SIGA, said that, as operator of the casinos, the gaming authority will implement any applicable laws passed by the First Nations that own the casinos. While she believes that Sakimay First Nation, which owns the land that the Painted Hand Casino sits on in Yorkton, has passed a band council resolution addressing the issue of smoking in the casino, as of yet SIGA has received no notification of changes to smoking policy within any of the casinos it manages.

While decisions as to whether or not smoking should be banned outright in public places may be made at the discretion of individual First Nations, casinos and other businesses located on First Nations do have to answer to an outside authority when it comes to how smoking on premises impacts the health and safety of employees.

In Saskatchewan, it falls to the occupational health and safety division of the provincial department of Labour to ensure that businesses in the province, including those operating on First Nation lands, are meeting the requirements of Saskatchewan's occupational health and safety regulations.

Section 77 of those regulations requires that employees working in public places be prohibited from smoking in enclosed areas, except in areas that are designated as smoking areas. Employers must also restrict the exposure of their employees to second-hand smoke "to the extent that is possible." In cases where employees are regularly exposed to second-hand smoke, employers must also inform them of the health concerns connected to prolonged exposure, and of the steps that have been taken by the employer to minimize employee exposure.

Allan Walker, executive director of Saskatchewan Labour's occupational health and safety division, said nothing should change in the way the department enforces the regulations regarding smoking in the workplace. The new legislation coming into force in the new year will be administered and enforced by Public Health.

"I guess we'll wait and see what happens with the Tobacco Control Act. I realize there's some jurisdictional concerns, but from our view, we enforce our own legislation."

The situation is quite different on Mnjikaning First Nation in Ontario where chief and council have approved creation of a bylaw to restrict smoking in all public buildings on the first nation, including at Casino Rama, the only commercial casino in Ontario owned and operated by First Nations. Mnjkaning Chief Sharon Stinson Henry made the announcement on Dec. 16, the day after the provincial government introduced legislation to ban smoking in all workplaces and enclosed public places. The proposed legislation, if approved, would take effect May 31, 2006. Stinson Henry expects the smoking bylaw on Mnjikaning to be in effect within about six months.

The chief said the decision to bring in a bylaw restricting smoking was made to create healthier workplaces for the First Nations' employees.

"We employ 300 people in our First Nation and we have a huge office here. And we have a lot of people that smoke and quite a number that are non-smokers. And there were concerns expressed about the second-hand smoke and that's been going on for quite some time," Sharon Stinson Henry said.

Some of the buildings on the First Nation, such as the health centre, the recreation centre and the seniors' centre, have already been made smoke-free on an informal basis, but this bylaw will formalize the process and apply it to all public buildings.

"It's very much our concern, the health of people, community members, staff, whether it's our staff at Mnjikaning First Nation, the Casino Rama staff, and the thousands of visitors to our community each day. We're pleased to be taking this step in favor of health on behalf of people."

She stressed that the decision to bring in the bylaw wasn't in reaction to the province's planned legislation.

"We're being proactive on a health matter, because at the end of the day we felt that the health of people should be the priority."

Stinson Henry isn't concerned that making Casino Rama a non-smoking venue might negatively affect the casino's profits. She thinks the number of people who will stay away because they can't smoke will be balanced by the number who have been staying away because of the second-hand smoke that came along with a visit to the casino. Besides, she said, it's not the fact that they can smoke there that has ben drawing people to the casino in the first place.

"Casino Rama has been voted the Number 1 most popular casino since it opened its doors in 1996, and do you think they come here because they can smoke? No, they come here because they're entertained."

The council's decision has been met with a lot of support, especially among the 3,500 or so employees at Casino Rama who have been fighting for a smoking ban for a long time, she said.

"I think some days we have to put the health and safety of people before the bottom line."