Nova Scotia

Province withdraws 'unconquered peoples' defence in Mi'kmaq court case

The Nova Scotia government has fulfilled a promise it made to Aboriginal leaders a month ago to withdraw a controversial court argument that it had no duty to consult "unconquered peoples."

Nova Scotia government still claims court case involving Alton natural gas project should be tossed

Members of the Sipekne'katik band placed a flag in September near the AltaGas Ltd. work site on the Shubenacadie River. (Robert Short/CBC)

The Nova Scotia government has officially withdrawn a controversial legal claim in a high-profile Mi'kmaq court case.

In a letter Tuesday to Nova Scotia Supreme Court Justice Suzanne Hood, the province states it no longer holds the position that "the duty to consult Aboriginal peoples arises only in cases where the Crown has asserted sovereignty over sovereign unconquered peoples."

Indigenous leaders bristled at the claim Nova Scotia Mi'kmaq had submitted to the British in 1760. 

A month ago, Premier Stephen McNeil personally apologized to Mi'kmaq leaders at a cabinet gathering at the Nova Scotia Archives in Halifax.

Province says it does have duty to consult

The "unconquered peoples" brief was submitted by the province during an appeal launched by the Sipekne'katik band related to AltaGas Ltd.'s plan to store natural gas in salt caverns near the Shubenacadie River.

In the letter to Hood, who is hearing the case, the province wrote it does owe to the band a constitutional duty to consult, and the question to be determined by court is whether it did so adequately.

The Sipekne'katik band is appealing the environment minister's decision to give the go-ahead the Alton Natural Gas Storage project. The band claims it was not consulted.

The province maintains the band's views were taken into account.

"Consultations with Sipekne'katik were adequate in this matter," writes Edward Gores, a lawyer with the Justice Department. 

"The concerns raised by the appellant regarding adverse impacts to Aboriginal and treaty rights were carefully considered and accommodated where appropriate."

Previous lawyer taken off case

Gores inherited the file after the province replaced the lawyer who originally prepared the case and argued it in court. The government removed Alex Cameron from the case earlier this month.

It's not the first time Cameron has come under fire for his views.

Cameron's 2009 book, Power Without Law, argued the Supreme Court of Canada was wrong when it ruled in favour of Donald Marshall Jr. in a 1999 case. The court said Marshall was wrongly arrested for catching and selling eels out of season as the Mi'kmaq man was lawfully exercising his treaty rights.

Cameron's position led Mi'kmaq chiefs in 2009 to request that he not handle government files relating to Indigenous issues.

The government is still looking into why Cameron was assigned the Alton case and who would have approved his legal brief that included the "unconquered peoples" reference.