No answers yet on how ‘racist’ argument against Mi’kmaq was allowed in court

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WATCH ABOVE: Nova Scotia Premier Stephen McNeil has apologized to Nova Scotia Mi'kmaq Chiefs and First Nations communities for an offensive legal argument that was put forward on behalf of the government. But as Global's Marieke Walsh explains there are still many questions about why the controversial statements were allowed to be made – Nov 24, 2016

The Nova Scotia government still can’t explain why a government lawyer was allowed to argue what one critic is calling a “racist” position against First Nations in court.

Last week, government lawyer Alex Cameron argued the province didn’t have a duty to consult with the Sipekne’katik First Nation because the duty to consult extended only to “unconquered people,” and that the band’s submission to the Crown in 1760 negated its claim of sovereignty and negated the government’s constitutional duty to consult.

The brief was presented as part of the province’s case in a legal challenge of the approval of the Alton natural gas storage project. In the appeal hearing that wrapped up last Tuesday, the Sipekne’katik First Nation argued the province failed in its duty to consult with them on the project.

READ MORE: Indian Brook First Nation challenging Alton natural gas storage project

Naiomi Metallic, chair of aboriginal law and policy at Dalhousie University, calls the arguments put forward by Cameron “legally and factually wrong.”

“Native people in Canada were never conquered and it’s a racist idea to say we’re conquered,” she told Global News.

Justice Minister Diana Whalen was again asked about the incident following Thursday’s cabinet meeting but had few answers for why the arguments were permitted by the government. Both Whalen and Premier Stephen McNeil said they were not aware of the court filing prior to the trial.

“The thing that we need to do is to review the process,” Whalen said. “Look at which departments were involved, who gave advice, who might have been informed of this.”

Mi’kmaq chiefs accept premier’s apology

McNeil apologized for the legal brief at the annual meeting between Nova Scotia’s Mi’kmaq chiefs and the provincial cabinet in Halifax on Thursday.

“The meeting started out this morning with an opportunity for me to express my regret and my apology to the chiefs and to the members of their community,” he told reporters afterwards.

Assembly co-chairs Terrance Paul and Sidney Peters didn’t elaborate on what if any guarantees the government has given them on what will happen with future court proceedings, but both said they were content with the outcome of the meeting.

“The premier has apologized and the chiefs have accepted that,” Paul said. “We’re very fortunate to have a government that is willing to listen to the Mi’kmaq.”

Premier, justice minister claim ignorance

The legal brief was filed on July 29 and was argued orally in court on Nov. 14 and 15. On Nov 17, McNeil, who is also minister for aboriginal affairs, told reporters he didn’t know Cameron was going to take that position and that it went too far.

But as NDP MLA Lenore Zann later pointed out, she had previously raised the issue with him in question period on Nov. 9. She asked him, “Why was this position considered acceptable in the first place?” He responded by saying he couldn’t comment “on what was put in by someone else.”

However, on Thursday McNeil told reporters he didn’t realize what Zann was referring to and only heard about the legal arguments being put forward the day before the case went before the court.

“I didn’t know what she was actually talking to,” he said. “Trust me, if I had in any way… known that would have been what would have been representing our government in the court, it would have never seen the court.”

Chiefs previously asked crown attorney be removed from Mi’kmaq cases

In 2009, Nova Scotia Mi’kmaq Chiefs asked the province to remove Cameron from cases involving Mi’kmaq people because of a book he wrote that the assembly said showed he was biased against them.

McNeil and Whalen said they weren’t aware of the letter and are looking into it. Paul, who is also chief of the Membertou First Nation, said he will keep an eye on what happens going forward.

“We’re very aware of certain people and we’ll certainly be monitoring whatever happens in the courts that involves the Mi’kmaq,” Paul said.

The NDP are calling on the government to rescind the offensive legal argument from the court.

-With files from The Canadian Press