Judge orders instructions to lawyer in 'unconquered people' case be released
Court decision says province's arguments to keep information secret are 'spurious' and 'hollow'
Nova Scotians may soon know exactly what former Justice Department lawyer Alex Cameron was instructed to do to defend the province against an accusation it did not properly consult Indigenous communities in a 2016 court case.
In a decision handed down Thursday, Appeal Court Justice Duncan Beveridge ruled against the province's motion to keep those instructions sealed. Instead, he ordered the information be made public in two weeks.
The province has argued the material should be considered privileged solicitor-client communication and as such, needed to be kept confidential.
Cameron acted on the province's behalf during a 2016 court hearing relating to the controversial Alton Gas project. The Sipekne'katik First Nation opposed Alton Gas's proposal to store natural gas in underground chambers that would be excavated from salt deposits near the Shubenacadie River.
Cameron argued the province did not have a duty to consult because that requirement only applied to "unconquered people," which he implied was not the case with Mi'kmaq communities.
That argument sparked outrage and led Premier Stephen McNeil to personally apologize to a group of Mi'kmaq chiefs. He insisted that was not the province's position.
Cameron was removed from the file and subsequently retired. In 2017, he sued the province, McNeil and former justice minister Diana Whalen for defamation, abuse of public office and constructive dismissal.
Cameron wants to use the information found in the internal government communications as part of his lawsuit.
In his ruling, Beveridge characterized some of the province's legal arguments to keep the information secret as "spurious," "hollow" and unrealistic.
He also said the province didn't submit evidence to prove irreparable harm would be caused by making the information public.
Beveridge said he wasn't satisfied that the applicants — the province, McNeil and Whalen — "would suffer irreparable harm."
"The only harm that I see to the applicants is embarrassment from Mr. Cameron putting in the public domain his allegations and evidence that challenge the notion that he advanced an argument on behalf of the Province without or contrary to instructions," Beveridge wrote in his 19-page decision.
Judge cautions against another appeal
The province can appeal this latest legal setback to the Supreme Court of Canada, but in the ruling, Beveridge suggested the province might not have a strong case.
"I recognize that decisions about leave to appeal are exclusively within the purview of the Supreme Court of Canada," he wrote. "Although I doubt the appellants have actually identified any issues of national or public importance for leave to appeal."