'Unconquered people' lawyer taken off Mi'kmaq-Alton Gas case

The Nova Scotia government says the lawyer who delivered the "unconquered people" brief in a prominent Mi’kmaq case has been taken off the file.

But controversial defence remains part of the Nova Scotia government's legal case

Members of the Sipekne'katik band placed a flag and 10 treaty-based fishing traps near the AltaGas Ltd. work site on the Shubenacadie River earlier this year. (Robert Short/CBC)

The Nova Scotia government says the lawyer who delivered the "unconquered people" brief in a prominent Mi'kmaq case has been taken off the file.

But the brief itself remains part of the government's defence.

Last month, Department of Justice lawyer Alex Cameron presented the government's case for Alton Gas's plans to store natural gas in salt caverns near the Shubenacadie River. The Indian Brook band appealed the natural gas storage project last month, saying the province had a duty to consult.

Cameron argued the government's obligation to consult with First Nations peoples in such cases only extended to "unconquered people" and that a band's submission to the Crown in 1760 negated its claim of sovereignty and negated government's constitutional duty to consult.

Cameron rejects Marshall ruling

The government rejected that position. On Thursday, acting Attorney General Michel Samson said Cameron was off the file.

"There has been a change in counsel. Ed Gores is now going to be the counsel on behalf of the province in this matter," he said.

Samson refused to say if the government will remove the "unconquered peoples" defence from its legal argument. A ruling could come as soon as next month.

NDP Leader Gary Burrill said he was disappointed the Justice Department hadn't moved yet to withdraw the brief.

"The government ought to formally notify the court that the document they have before them which has been represented as the position of the Government of Nova Scotia ... is not the position of the government," said Burrill. "I think that should be made official and clear."

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 ruled Marshall was wrongly arrested for catching and selling eels out of season, saying 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. On Thursday, Samson would not say if the government would honour that request. 

with files from the Canadian Press