Ambitions among New Brunswick First Nations groups to build a casino independent of government will likely meet with litigation as the province defends its legal high ground on gaming issues, experts contend.

That is, if the province doesn't wilfully ignore First Nations gambling pursuits to avoid a contentious political showdown.

Unimpressed with the Liberal government's new gambling policy, some First Nations leaders have vowed to pursue a casino on their own outside of government regulations.

Last week the government announced it would allow one casino in the province, aimed to produce $25 million in annual revenue for the province.

Chief Susan Levi-Peters of the Elsipogtog First Nation in Kent County doubts First Nations groups can compete with private developers and so is pushing for a separate First Nations-run project.

She contends First Nations are free to bypass provincial gambling legislation because Indian affairs fall under federal jurisdiction.

According to Levi-Peters, investors are keen to develop the project, which would include a hotel, water park, aboriginal heritage theme park and casino.

The resulting revenues, she says, would be a boon to all of the province's 15 First Nations.

"If we cannot get any support, then we have to do it on our own," she said Tuesday. "If we do it on our own, we exclude New Brunswick. I have no other choice."

Provinces, not feds, control gaming

Not so fast, says Carissima Mathen, a criminal law professor at the University of New Brunswick.

The provincial government, not Ottawa, has full control over gambling issues.

"The fact that they are under federal jurisdiction as native persons has little to do with exceptions to the gaming scheme," Mathen said.

"They can't just set up a gaming system on their own, unless they can establish they have some (constitutional right) to do so.

"They couldn't do so on the argument they don't fall under provincial jurisdiction because they're native."

Essentially, she says, First Nations are not free from general provincial laws, like those concerning gambling.

According to Mathen, the province would likely fight a group trying to circumvent the system.

But that doesn't always happen.

"Sometimes what we've seen is that the provinces essentially turn a blind eye to other gaming operations," she said. "They don't want to get into a huge political battle.

"Though something as big as a casino would probably have to attract the attention of the province."

The Liberal minister responsible for native issues agrees the province has full authority over local gambling, regardless of First Nations status. Yet Ed Doherty has refused to confirm a government crackdown if the project moves forward.

He said Tuesday that all First Nations gambling concerns will be addressed in future bilateral discussions.

'Enclave theory' undermined by repeated violations

Mathen said it is not surprising that governments allow small First Nations gambling outfits to exist unfettered.

Often, she says, officials look to avoid confrontation if they feel the resulting gambling revenues are actually benefiting the First Nations community.

Lucky's Entertainment, a native gambling facility near Grand Falls, N.B., appears to fit that mould.

The site contains a reported 200 unlicensed video lottery terminals and has been under investigation by the RCMP.

Yet Chief Gerald Bear, of the Tobique First Nation, says his community could not function without it.

He says the facility invests up to $750,000 a year in the community.

"If we didn't have that we'd be pretty desolated by now," he has previously stated. "It has been a godsend for our community."

According to experts, the legal approach to many native issues has changed over the years.

Officials used to follow an "enclave theory" — basically that all First Nations were outside of provincial laws.

But increasing violations — on everything from running stop signs to speeding — prompted the enforcement of provincial laws.

The issue of native self-government has entered such arguments, particularly in regards to gambling.

In Ontario, a First Nations casino group was unsuccessful in making a link between modern high stakes gaming and traditional aboriginal rights.

That case was argued before the Supreme Court of Canada.

Some point to the American native gaming act as a successful approach. It allows native groups to produce a steady revenue stream through gaming, while lowering their need for government subsidies.

In Connecticut, for example, the Native-run Foxwoods casino has grown, over two decades, into the world's largest casino.