05/30/2012 12:18 EDT | Updated 07/30/2012 05:12 EDT

Judge orders Manitoba First Nation to snuff smoke shop, but chief says no way

WINNIPEG - A Manitoba judge has ordered a First Nations smoke shop to close its doors, but the store's aboriginal owners appear set to defy the decision.

The Chundee Smoke Shop has repeatedly ignored provincial law and defied authority, Court of Queen's Bench Justice Brenda Keyser ruled.

"The integrity of the law must be upheld, in my view," Keyser said in her decision Wednesday.

"Such a continuing flouting of the law cannot be countenanced."

Chief Frank Brown and other members of the Canupawakpa First Nation opened the store near Pipestone, Man., last year. The shop sells cigarettes from Mohawk distributors in Quebec for $40 a carton. That's less than half the price of a typical carton.

The store is not licensed by the Manitoba government and does not pay provincial tax.

Police have raided the smoke shop five times, seized thousands of cigarettes and laid a total of 66 charges. But each time the store opened the following day and was completely restocked.

"They are flouting the law," government lawyer Denis Guenette told court. "This is something that strikes at a cornerstone of our democracy — the rule of law."

Guenette is seeking a court injunction to permanently close the smoke shop. He asked Keyser for a temporary injunction to shut down the store until a hearing is held and she agreed.

Canupawakpa members refused to take part in Wednesday's court proceedings. They sat in and spoke from the public gallery and had no lawyer to appear before the judge. They walked out 30 minutes after the hearing began.

"We will follow our own laws," Brown said before walking out.

"We will not recognize the provincial court until (the government) produces a legal document that proves we are under their jurisdiction."

Unlike most other Manitoba First Nations, Canupawakpa has no treaty status and no reserve. Brown said his members never surrendered legal authority to the federal or provincial governments, so laws cannot be forced upon them.

Provincial government lawyers disagreed.

"Courts have repeatedly rejected that argument," Michael Conner said. "Aboriginal people are subject to the laws of Canada and of the provinces."

The smoke shop is not on a reserve, so it cannot be exempt from sales taxes, Conner added.

The injunction issued Wednesday allows provincial Finance Department officials, along with police, to post notices on the smoke shop's doors to warn the owners and patrons that the business has been ordered to close. The owners can be found in contempt of court if they continue to operate.

If need be, the province can return to court to seek permission for further measures, such as padlocking the building.

Keyser ruled the injunction cannot take effect immediately. First, the province must file a statement saying that if smoke shop owners win the larger court battle over a permanent injunction, they have the right to seek reimbursement of their legal costs.

The statement is a routine matter in civil proceedings, Guenette said, and is likely to be filed within a few days.