Article content continued

However, Mr. Alexander said this becomes far more tricky when dealing with competing sovereignty claims by First Nations groups.

He believes the government would have much more trouble with the courts than Mr. Flanagan contends. If aboriginal bands were to try to prove their claims on as-yet-unsettled territory, he believes the courts would demand a higher degree of consultation.

In addition to the legal quagmire, several groups have threatened to block the pipeline physically.

“If it comes down to it, there’s people ready, across B.C. that are ready to stand in front of bulldozers if they have to,” said Geraldine Thomas-Flurer, the coordinator of the Yinka Dene Alliance, a group of First Nations opposed to the pipeline.

“We’ll react very heavily and very swiftly. Like I said, there are laws that are available to us and we’ll use them,” she said. “Enbridge can’t think they’ll just go through the territories and not expect that there’s going to be a legal battle. And the same goes for our government.”

In addition to the legal uncertainties, Mr. Flanagan said Enbridge may have to deal with a standoff with First Nations groups — a proposition that echoes conflicts akin to Oka and Ipperwash.

“The legal morass is daunting in and of itself. Then there’s the other possibility of direct action on the part of the people on a very large, thinly settled area with few roads that are difficult to police,” he said. “Even though the federal government has the powers under existing jurisprudence, politically it’s quite different. The province is unlikely to foment guerrilla warfare. The Conservatives might lose seats, there might be political backlash. But there’s a different history with First Nations. Who knows what happens if you use all the legal powers you actually have under those conditions?”

Mr. Alexander, who is also representing several bands fighting the construction of oil pipelines, foresees Northern Gateway as an unprecedented test of aboriginal rights.

“It will be one of the most exciting and interesting times in aboriginal law because there’s never been so much friction,” he said. “Aboriginal rights have never really had to go up against the national interest, which is extremely unique and extremely interesting, in a bit of a morbid car accident sort of way.”

National Post

• Email: jgerson@nationalpost.com | Twitter: jengerson