A victory for former Crown lawyer behind contentious 'unconquered people' brief
Premier Stephen McNeil apologizes for a government legal brief that implied members of a First Nation band are a conquered people.
THE CANADIAN PRESS
Published Thursday, August 9, 2018 5:19PM ADT
HALIFAX -- A Halifax judge has rebuked the Nova Scotia government, waiving its solicitor-client privilege with a former Crown lawyer who is planning to sue the province and its premier for constructive dismissal and abuse of public office.
Alex Cameron was removed as government counsel in an Aboriginal rights case in December 2016 after suggesting in a legal brief the Mi'kmaq were a conquered people who were owed no duty of consultation.
Amid an outcry from the Mi'kmaq and others, the government withdrew the brief, and disowned the argument. Premier Stephen McNeil told reporters at the time "that brief went way beyond where it needed to go," and said he wanted an explanation from the Justice Department.
Cameron, who had a 26-year career with the province, retired on April 30, 2017, and served legal notice on the government two days later.
In an application seeking a waiver of any solicitor-client privilege ahead of a planned lawsuit, Cameron said he asked for, but did not get, an apology.
He says in an affidavit the premier and then-Justice Minister Diana Whalen suggested he acted without instructions, or even contrary to instructions, in making the conquered peoples argument.
Cameron says the arguments "were in accordance with" the instructions he was given.
"He maintains that the respondents have damaged his reputation and professional credibility by making public statements which imply that he acted without instructions, and he claims his name can only be cleared by adducing evidence concerning the directions he received," according to a ruling released Thursday by Justice John Murphy of the Nova Scotia Supreme Court.
The hearing was held behind closed doors and Thursday's written ruling includes multiple redactions.
The judge ruled that government officials' statements "nullified confidentiality and ended the privilege which otherwise applied."
Said Murphy: "The respondents cannot elect to publicly suggest that Mr. Cameron acted without instructions or contrary to instructions, and at the same time assert privilege to prevent him from revealing his understanding of the instructions."
"Any claim he may have ... is based upon the respondents' implication that he acted without or contrary to instructions."
The brief had been presented as part of the government's case against an appeal filed by the Sipekne'katik Band, formerly known as Indian Brook. The band was fighting the province's approval of a plan by Alton Gas to store natural gas in salt caverns near the Shubenacadie River.
The legal brief presented by Cameron said the Crown's obligation to consult extended only to "unconquered people." It said the band's submission to the Crown in 1760 negated its claim of sovereignty and negated government's constitutional duty to consult.
Cameron said he intends to sue the government, McNeil and Whalen for defamation, abuse of public office, constructive dismissal, and violation of his constitutional rights.
"Mr. Cameron maintains that he followed his client's instructions," Murphy said in Thursday's ruling.
"In the circumstances of this case, it would be unfair to maintain privilege and thereby bar Mr. Cameron from claiming he was disadvantaged."