So sayeth the Manitoba Court of Queen's Bench;
A judge's ruling that Manitoba's anti-smoking law must apply to native reserves has raised a legal question other provinces will face as they decide whether to allow band councils to set their own smoking rules.Justice Albert Clearwater of Court of Queen's Bench ruled Monday that an exemption for reserves is discriminatory because it violates Section 15 of the Charter of Rights and Freedoms, which guarantees that all people receive equal treatment under the law.
"It is every bit a breach of the charter to create offences for certain conduct by persons . . . and to concurrently exempt aboriginal persons from prosecution for the same conduct," Clearwater wrote.
He said the Manitoba government was wrong to think it does not have jurisdiction over smoking on reserves.
But aboriginal leaders disagree and are already warning the province will be in for a fight if it tries to enforce its ban on reserves.
And why wouldn't they? Aboriginal leaders can respond with "warnings" to any court decision they don't like, knowing there is minimal legal risk in issuing implied threats of civil disobedience and violence. The precedent has been set in Caledonia - Canada has moved beyond race-based law, to race-based enforcement,
while 15.1 in the charter might lead one to believe that
section 15.2 says,
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(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
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So if the law is to allow more employment on reserves I say it's an activist court.
Course that being said I think section 15.2 should be dropped from the charter but they don't seem to be following the letter of the law in this nation that "recognizes the supremacy of God".
http://laws.justice.gc.ca/en/charter/index.html
Two of the worst ills of our society in one story;
1. A prime example of Social Reengineering by the state - anti-smoking laws.
2. Racism/reverse racism formalized under the law.
Now that this kind of crap has become the "new normal", how much further can it go? Will the sheeple ever wake up and smell the coffee? Or is it too late?
Hmmm...
Reverse racism has been happening for a long time. It makes me sick to think that we live in this wonderful country and the laws of the land are not enforced equally. The scary thing is that we (governements) have created a monster here, absolute money and power equals absolute corruption. As one of my native elder friends stated in the senate: "What you have created here is an indian moffia". From the mouth of the older and wiser!
I have a solution to this particular issue--quit smoking. Simple common sense. Unrealistic, I know. However, it is an unfortunate habit that can be broken if you care at all about your health and your families health. Sadly, it seems the only people I see smoking these days are those who can't afford it and the elderly who are too "set in their ways" to quit. And you can usually find them wasting away their time and money in a casino. What a waste.
MaryM, small point, but I disagree with the term "reverse racism". This is just racism.
Racism is defined as "theory that numan abilities, etc. are determined by race"...the term has been historically levelled at WASP's only and is commonly (or so it seems) deemed a WASP problem. But ANYONE who discriminates on the basis of race is a racist. The use of the term "reverse racism" seems to suggest (to me at least) that perhaps "we're getting as good as we gave" and takes away from the ugly truth.
The same goes for "sexism" versus "reverse sexism" and all other such permutations. Permitting a women's only health club is just as sexist as permitting a men's only golf club...but the former is accepted and the latter is soundly denounced.
Reverse racism is just good old-fashioned racism and anyone who practices it should be treated equally.
It depends on where one is standing to apply the context. We see reserves as merely an extension of the crown, Indians see reserves as independent nations, and the Federal Government has promoted this belief.
I'm with Mad Mike : "Two of the worst ills of our society in one story;
1. A prime example of Social Reengineering by the state - anti-smoking laws.
2. Racism/reverse racism formalized under the law."
Although I tend to fall iinto a different view on the ruling...unlike the judges conclusions which seem to be aimed at forcing the Natives to enforce Provincial laws..I see this as a good reason to strike down the Provincial law...a law that I see as Unnecessary and intrusive that impinges on individual rights and freedoms. Smoking is only a wedge issue for the political activists that want to promote the nurse nanny state at the expense of free choice... a road our society has already gone too far down for my comfort.
Time to back up! Or turn around.
OMMAG
Since when has anyone been able to consistently enforce law and order on Canada's Indian Reserves? The general contractor my father-in-law worked for didn't get paid for housing project work done on the Pheasant Rump Reserve in the 90's. That meant my father-in-law's subcontracting business didn't get paid for any of their labour and supplies (worth tens of thousands of dollars).
My understanding was that the money for the work was given directly to the band instead of being held in trust by a lawyer. The housing work got done but the band decided the money had other uses. According to my father-in-law there wasn't any hope the money would be paid out...ever. Just one example of many illustrating legalized stealing from non-natives by privledged native thugs long before Caledonia.
Anyone that thinks new social laws such as anti-smoking regulations have any chance of being enforced on reservations must be smoking something illegal themselves.
OMMAG:
Definately past "Time to back up! Or turn around."
Next thing will be the Nanny State Socialists furiously working on laws designed to prevent overweight people from eating. For their own good of course...
Or how about legislation preventing you from owning a SUV if you live in a city?
Or even better, you shouldn't own a car at all if you live within a 15 minute walk from a bus stop!
Wouldn't that be wonderful! And so good for the collective! (That wouldn't apply to me, so I would, of course, support it... ;)
Sounds ridiculous, doesn't it? But twenty years ago, a gopher-gun registry and banning smoking on private property sounded ridiculous, too. What foolishness 20 years from now?
Can it even BE stopped?
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada;
So that means the Treaties trump the equality rights of the Charter, because Clearwater is clearly abrograting the Treaties by declaring that provinvial laws apply on reserve in order to make things "equal". On appeal this decision will be reversed
The Doer Government will never enforce a smoking ban on reserve land.Indians vote NDP,for the most part, and an election is within a year away.The rural vote in Manitoba is mainly Conservative so the socialists could care less about rural Hotel Owners and the fact many are losing business and therefore money.
the more they demand special rights and whatever, the more they live in a self imposed bubble and the faster they fall behind.
Their choice. Their consequences.
If it turns out good, they'll takle the credit.
If it turns out bad, we'll get the blame.
The blame is what happens 99% of the time.
We have become the convenient and easy excuse for failure.
Personally, I am past the point of caring anymore.
Self inflicted wounds are beyond my ability to prevent, so they are beyond my reason to specifically care about.
Ah, but Fred, you may be past the point of caring, but you are not past the point of paying, and paying, and paying.
Good point Roseberry. Fred's "...blame is what happens 99% of the time..." always has an expensive price tag attached to it. The "raison d'etre" for the legal system fueled Pavlovian blaming behaviour is simply to get Ottawa to speed up the money printing machine connected to Indian Affairs.
Ever met a salivating indian band lawyer that wasn't great at fixing blame where the money lives?
I *really* don't get how reserve law works up here. In the U.S., this just wouldn't apply, period. Duh. Why don't more natives run for provincial legislature - i.e., to help make the laws? Or is that a crazy idea?
Separate but equal?
So if a native woman is raped, provincial authorities can't enforce laws on reserves 'cause they're separate? Sounds like that to me.
Not a great situation..depending who you are and whether you pee standing up or sitting down.This separate but equal aways confuses me.
I'm not smart like the lawyers who come up with this stuff.
eastern paul: "So if a native woman is raped..."
Betchya that many men from the reserve wouldn't call it rape. It's a white man's word.
uh, I don't remember anything written into the Treaties about allowing smoking in Casinos? obviously not a treaty right unless you make broad based and biased interpretations of Native Rights like those of the Caledonia terrorists.
The section relating to spiritual use of tobacco was not struck down.
Why don't the casino workers/clientele exposed to second hand smoke team up and sue their band councils?
There is no question that the QB decision was correct in law. Manitoba's ridiculous, intrusive law is definitely applicable on reserves (see s. 88 of the Indian Act). Personally, I hope the natives (in this instance) tell the government to take a long walk off a short pier. Sounds like they will.
It will be interesting to see how many natives beginning participating in frequent "ceremonies" involving tobacco. Provincial laws may not impinge on "Indianness".
There is no question that the QB decision was correct in law. Manitoba's ridiculous, intrusive law is definitely applicable on reserves (see s. 88 of the Indian Act). Personally, I hope the natives (in this instance) tell the government to take a long walk off a short pier. Sounds like they will.
It will be interesting to see how many natives beginning participating in frequent "ceremonies" involving tobacco. Provincial laws may not impinge on "Indianness".
This whole anti smoking laws are a non event. It's enforced all across Canada now. Here in Regina and I'm sure Saskatoon the bar and resturant buisness actually got better. So all the Manitoba Gov't has to do is reword the legislation closer to Sask's. Here in Regina the 2 roughest bars are complaining. The Empire (Who cares) and the Plains (who cares).It's been alot quieter in those bars. There used to be a stabbing once or twice a week at the Empire. Most people could care less if these two bars closed.
eastern paul and Martin B. never mind wondering if provincial authorities, let alone judges, have the power to enforce the laws if a native woman is raped on the reserves. Hell they can't even enforce the laws in a municipality when a 12 year old native girl is raped by three good ol' redneck boys, especially not in Saskatchewan. Musta got tired of their sisters.
I agree with Mad Mike and OMMAG. Banning the smoking of a LEGAL and OVERTAXED commodity is stupid and if the Indian people have the sense to see though the control freaks who want to regulate every person in this country ALL the time - then I say good for them.
Truth: "Martin B. never mind wondering if provincial authorities...have the power to enforce laws...on the reserves".
I wasn't wondering.
I understand that penalizing criminals in Canada is becoming against the law itself...a different issue than discussed in my comments. However, who really believes that aside from the neverending river of blood money Ottawa gives away that reservations are in reality a part of Canada? Also, who really believes that natives on the reservations live under the same laws as we abide by in the "white man's world"? Do you?
We talk lots about the problems of a progressively extremist non-integrating muslim culture growing inside Canada. However, are we not bankrolling a progressively extremist non-integrating native culture that's growing here as well? Seen any Hezbollah flags flying in public outside of reserve boundaries lately?
The inherent right to self-governance for First Nations in Saskatchewan is affirmed as an existing right under section 35 of the Constitutional Act, 1982. While I do agree smoking is a major health issue and costs taxpayers millions of dollars, first Nations reserves in Manitoba do have the inherent right to enact legislation on their own terms. The federal government has the right to trump legislation on Canadian First Nations reserves in respect to the BNA Act of 1867 (Section 91 [24]) and the section 88 of the Indian Act. However, this is no legal jurisdictional authority.
with regard to a previous post and its broad interpretation of the Constitution and obvious awareness of the legalities involving the BNA/Charter I'm sure they're not ignorant enough to actually think absolute governance on reserves by Band Councils exist outside of political support.
Numerous court decisions have narrowed the "inherent right to self government". If you read any of Mel Lastman's work it's quite obvious the politicians of the time never even new what the phrase meant but included it for the sake of appeasement. If only they would employ the same non est factum used by many Indian activists today - oh that, well we never knew what we were signing.
Laws passed by Band Councils do not supercede laws of provincial application, i.e. driver licensing/water management/senior care, etc...
Nice try at the loophole, but fruitless in law and practice. Indian Act repeal is coming folks - it's in the cards of the waiting Conservative majority.
with regard to a previous post and its broad interpretation of the Constitution and obvious awareness of the legalities involving the BNA/Charter I'm sure they're not ignorant enough to actually think absolute governance on reserves by Band Councils exist outside of political support.
Numerous court decisions have narrowed the "inherent right to self government". If you read any of Mel Lastman's work it's quite obvious the politicians of the time never even new what the phrase meant but included it for the sake of appeasement. If only they would employ the same non est factum used by many Indian activists today - oh that, well we never knew what we were signing.
Laws passed by Band Councils do not supercede laws of provincial application, i.e. driver licensing/water management/senior care, etc...
Nice try at the loophole, but fruitless in law and practice. Indian Act repeal is coming folks - it's in the cards of the waiting Conservative majority.
I recall watching a senate committee hearing last winter on native issues and Senator Buchannon who as Premier was part and parcel of the repatriation of the constitution admitted that he knew nothing of Metis rights being recognized even though he was central to discussion of all these things at the time.
What a joke??
" Hell they can't even enforce the laws in a municipality when a 12 year old native girl is raped by three good ol' redneck boys, especially not in Saskatchewan. Musta got tired of their sisters.
Posted by: The Truth Will Come at August 18, 2006 03:42 AM"
Reminds me of a Quebec judge who went easy on a creap who sodomized a young girl who was under sixteen or so.
Judge was filled with compassion by the fact that the perp in restricting his attack to her anus "preserved her virginity"! I kid you not, that's what he said.
Unfricking real these judges....
I find it hard to fathom that underage rape only occurs out west. What do take us for??Fools. Get with the program. For example one of your own got caught with a 14 year old hooker. He was an ex PC MLA. And he was a WASP. Imagine that and a good non smoking born again. You Tories are so full of shit you smell up the country.