Provincial documents in 'unconquered peoples' lawsuit should be unsealed: judge

A Nova Scotia Supreme Court judge has blocked the province from using the principle of solicitor-client privilege to stymie a lawsuit filed against it by a former government lawyer.

Justice John Murphy ruled Thursday that Premier Stephen McNeil and former justice minister Diana Whalen waived solicitor-client protection when they publicly assailed the legal arguments made by government lawyer Alex Cameron on the province's behalf.

Cameron is currently suing the provincial government for defamation and constructive dismissal from his job, which he left in May 2017.

He worked for the Justice Department in 2016, representingNova Scotia when it became involved in a court challenge over the Sipekne'katik First Nation's right to be consulted about the effect that industrial development could have on the surrounding environment.

'Unconquered peoples argument'

The Mi'kmaq band opposed Alton Gas's proposal to store natural gas in underground chambers that would be excavated from salt deposits near the Shubenacadie River.

Cameron, however, advanced the legal argument that the province's duty to consult only applied to "unconquered peoples."

In a legal brief he presented to court, Cameron suggested that the Sipekne'katik Band's submission to the Crown in 1760 negated its claim of sovereignty and negated the government's constitutional duty to consult.

That argument triggered immediate outrage from Nova Scotia's Mi'kmaq leaders and from opposition parties.

The premier and the former justice minister publicly repudiated Cameron's approach and, within two weeks, the lawyer was removed from the case.

"I believe that brief went way beyond where it needed to go," McNeil is quoted as saying in documents presented to the court. "I am looking for an explanation from the Justice Department."

Those same documents later quote McNeil as saying he had "no idea" that Cameron was putting forward that argument.

Sealed documents

After being taken off the case, Cameron continued to work for the Justice Department until retiring in May. Days later, he filed a lawsuit against McNeil, Whalen and the attorney general, alleging defamation, abuse of public office, constitutional violation and constructive dismissal.

The solicitor-client correspondence Cameron submitted to the court in support of his lawsuit is still sealed, and the details are redacted from Thursday's decision.

But that information could soon become public, because Thursday's ruling found that the province's private instructions to its lawyer in the dispute with the Mi'kmaq band are no longer protected.

Province may appeal

The province has 30 days to appeal that decision. The documents will remain sealed until then.

A Justice Department spokesperson told CBC Nova Scotia that the province is considering a challenge to Thursday's ruling.

Cameron did not immediately respond to a request for comment made through his lawyer Bruce Outhouse.