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Conquered peoples argument approval came from the top, says former Justice Department lawyer

Premier Stephen McNeil speaking in Yarmouth on Feb. 14. TINA COMEAU PHOTO
The newly released documents include former Justice Department lawyer Alex Cameron’s affidavit to the Nova Scotia Supreme Court on Sept 20, 2017, claiming that Premier Stephen McNeil had reviewed his controversial argument in the very early stages of the case. - File
HALIFAX, N.S. —

The lawyer who argued the Sipekne'katik band didn't have to be consulted because they're a conquered people says approvals to do so came straight from the top, according to court documents released Thursday. 

Former Justice Department lawyer Alex Cameron is suing the Nova Scotia government for defamation. He had been fighting for the internal government documents — kept under wraps for years — to be made public to bolster his case. 

The documents add weight to Cameron's claim that Premier Stephen McNeil and senior Justice Department officials approved Cameron’s controversial argument in a high-profile 2016 case claiming a Mi'kmaq band was a conquered people. Arguing on behalf of the province, 

Cameron claimed government did not have a constitutional duty to consult the Sipekne'katik band on a brining operation tied to a natural gas storage proposal in Colchester County.


Sept. 20, 2017 - Affidavit of Alex Cameron 


What's in the documents

The freshly released documents include Cameron’s affidavit to the Nova Scotia Supreme Court on Sept 20, 2017, claiming that the premier had reviewed his controversial argument in the very early stages of the case. On Nov 14, 2016, a couple of days after the court hearing began, he said he was told to “push forward” by Bernie Miller, deputy minister of the Office of Strategy Management. Cameron said that directive came from the premier, stating that Miller’s instructions that the sovereignty argument “should not be abandoned” came from “a very tall gentleman” who Cameron understood to be the premier.   

The Liberal government had been trying to keep the documents secret, arguing they were protected by solicitor-client privilege. The province appealed to the Supreme Court of Canada but the top court refused to hear the case in a decision released Thursday. That means decisions made by two lower courts that the documents be made public stand.

Once the controversial argument got out in the press in 2016, the premier and then justice minister Diana Whalen distanced themselves. - Herald file
Once the controversial argument got out in the press in 2016, the premier and then justice minister Diana Whalen distanced themselves. - Herald file

In the documents, Cameron also said that in the months leading up to the court case he worked closely with several senior government department officials in drafting his argument. The group included Julie Towers, chief executive officer for the office of Aboriginal Affairs, and Tilly Pillay, executive director of legal services with the justice department. He said the group approved the brief that was filed to the court on July 26. He once again consulted with them two days before the start of the hearing on Nov 12, 2016, say court documents. 

“I was to assume that I would advance the sovereignty argument,” Cameron said in those documents.

Encouragement from the premier via Miller came a few days later, he said.

Once the controversial argument got out in the press later that week, the premier and then justice minister Diana Whalen quickly distanced themselves, characterizing Cameron as a rogue lawyer acting on his own.

In the newly released documents, Cameron said Miller later told him that the government needed a scapegoat, but that he didn't believe that the longtime Justice Department lawyer would be the target.

The straw bale hut built by Mi’kmaq protesters opposed to the Alton Gas project sits by the main gate to the company work site at the Shubenacadie River estuary near Fort Ellis, Colchester County in 2019. - Francis Campbell
The straw bale hut built by Mi’kmaq protesters opposed to the Alton Gas project sits by the main gate to the company work site at the Shubenacadie River estuary near Fort Ellis, Colchester County in 2019. - Francis Campbell

McNeil responds

The premier told reporters on Nov. 17 that the conquered peoples argument “was not a reflection of who our government is” and that he had no idea it was being put forward. Whalen followed suit, saying publicly that Cameron went beyond the position of the government.

Cameron responded one day later. In his affidavit, he said that he was “extremely upset by this turn of events.”

“That day I sent a letter to the clerk of the executive council that public statements by the premier and minister of justice contain the strong insinuation that I have not carried out my instructions or gone beyond the instructions I had been given. No apology has ever been forthcoming."

Miller responded on Thursday issuing a statement saying he had no involvement in the preparation of Cameron's brief and at no time did he see or approve its contents.

“I was contacted by Mr. Cameron on the evening of Friday, Nov. 11, which was a holiday, at home. By that point his arguments had been developed and the brief had been filed in June, well in advance of the hearing on Nov. 14.”

Tory Leader Tim Houston took aim at McNeil during Question Period on Thursday, questioning him on his involvement in the case. But the premier stuck to his public stance that his government acknowledges and honours the duty to consult.

“The fact of the matter is that I will stand on my integrity,” said the premier. “My word matters to me. There is no way that I am going to go out and mislead the press or anyone in this House or quite frankly anyone on this file or any other file.”

McNeil repeated those sentiments later to reporters.

“At no time did I instruct (Cameron) nor did Mr. Miller and you can tell by Mr. Miller’s statements that he disagreed with the position taken by Cameron that those were the instructions provided by our government.”

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