In October 2004, the province of Manitoba enacted the "Non-Smokers Health Protection Act" which regulates smoking in public places except for federal government buildings, military bases or lands reserved for Indians. This month, Manitoba Court of Queen's Bench Justice Albert Clearwater struck down the two-tier smoking ban that exempted Indian reserves.

Hallelujah, common sense has prevailed. After all, it is only reasonable that laws be applied equally to all citizens, or not applied at all. Having two sets of laws for citizens is wrong both morally and intellectually.

So, how did this ludicrous exemption get into the legislation in the first place

The province believed that because Indian reservations are under the jurisdiction of the federal government the province could not enforce the new law on reserves or in Indian run casinos.

The Canadian Taxpayers Federation said nonsense.

It is true under the Constitution Act of 1876 the federal government has exclusive jurisdiction of Indians and the lands reserved for the Indians. The Indian Act is the piece of legislation the federal government uses to exercise their jurisdiction.

That said, Section 88 of the Indian Act allows for all laws of general application in any province to be applicable to and in respect of Indians in the province. There is of course an exemption when the provincial law is in contravention of the terms of any treaty or any other Act of the Parliament of Canada.

For example, it is because of Section 88 that the legislation and regulations for vehicle registration and insurance in Manitoba must be adhered to by all citizens of the province - Indian and non-Indian alike.

It seems Justice Clearwater agreed. Specifically, Clearwater wrote, "On the evidence before me, I have no hesitation in concluding that I should strike out [the section] as it relates to reserve lands and allow the balance of the act to stand."

Clearwater also went on to state that the removal of the offending section can "be achieved with constitutional boundaries."

If the Manitoba government is to be perceived as fair and equitable to its citizens - which it claims to be - then provincial laws must apply equally to all citizens. Premier Gary Doer should now do the right thing and amend the "Non-Smokers Health Protection Act" as instructed by Justice Clearwater.