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Top court decision releases documents to be used in lawsuit against N.S. premier

The Supreme Court of Canada is seen, Thursday January 16, 2020 in Ottawa. THE CANADIAN PRESS/Adrian Wyld

A former Crown lawyer plans to proceed with a libel suit against Nova Scotia’s premier, armed with newly released documents that shed light on how he was told to litigate a controversial Indigenous rights case.

Emails and affidavits kept under wraps for more than two years were released by the provincial courts Thursday just minutes after the Supreme Court of Canada refused to hear an appeal from the province, which had claimed the documents were protected by client-solicitor privilege.

Alex Cameron, a former civil litigator in the Justice Department, is now expected to launch a defamation suit against Liberal Premier Stephen McNeil and a former justice minister, Diana Whalen, for allegedly implying he made an argument contrary to instructions.

The veteran litigator said their disavowal of his arguments ruined his reputation, and he resigned within a year of being removed from the case by the deputy minister of justice.

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READ MORE: Top court decision could help former N.S. Crown lawyer sue premier for libel

McNeil said in the legislature Thursday that his government intends to file a statement of defence, and it will vigorously present its side before the courts.

The original legal brief prepared by Cameron in the summer of 2016 argued the province didn’t have a legal duty to consult the Sipekne’katik band on a natural gas storage proposal. The lawyer wrote there was historical evidence of the band’s “submission” to the Crown in 1760, in contrast to the treaty rights of “unconquered peoples.”

The documents released Thursday include an account from Cameron of how Bernie Miller, then manager of strategy in McNeil’s executive council office, spoke to him on Nov. 14 – the day the lawyer made his oral arguments – telling him his arguments had been brought up with the premier.

In his intended notice of action, originally filed in September 2017 but only released publicly on Thursday, Cameron also says there was discussion of his brief in July 2016 among senior justice and aboriginal affairs officials, and it was sent to the solicitor of the Environment Department.

He argues his brief was only criticized by his deputy minister of justice after the issue was raised in the legislature on Nov. 9, three months after it was filed in court.

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The court documents released Thursday say that in November of 2016, there were conference calls between Cameron, the deputy minister of justice and the two senior officials in the Office of Aboriginal Affairs.

After that meeting Cameron received an email from his deputy minister informing him she disagreed with his argument on the duty to consult and told him not to advance it further in court during oral arguments.

But Cameron appealed to Miller, who brought his view to officials in the premier’s office on the eve of court pleadings, according to the court documents.

Cameron provides emails from Miller indicating that while Cameron should make clear the province has a duty to consult with the Mi’kmaq communities over projects affecting treaty rights, he could raise the more controversial point of conquest.

Miller’s email described Cameron’s brief as raising legal points about the duty to consult that are specific to the Sipekne’katik band.

“If the court considers it necessary to assess this aspect, the position raised in the brief may be advanced, although it should be emphasized at all times that the Crown, as a matter policy consulted fully and submits it met the duty to consult,” he wrote.

It’s the phrase, “the brief may be advanced,” that Cameron cites as the key to his argument he’d been given the green light to proceed by the premier’s office.

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READ MORE: Nova Scotia records should be released in unconquered people case: Appeal Court

However, Miller says in his affidavit that he only spoke with McNeil for three minutes about the matter, and that the premier had stated clearly that the province should restrict its argument in court to saying it recognized the duty to consult, and that it had met those duties over the past few years.

He said he never intended to contradict the deputy minister of justice with his email and telephone conversation with Cameron.

The government says that Cameron’s oral arguments before court failed to properly convey the government position that a duty to consult is a “constitutional duty,” and claims he “never made the argument he was instructed to make.”

However, Cameron argues the politicians’ statements to the media days later implied he acted either without instruction or contrary to instruction – and he says the court documents released Thursday back his case.

According to Cameron’s notice of intention to sue, the premier told reporters in a media scrum that Cameron’s brief was “not what I believe,” and “I had no idea it was being put forward.”

Tim Houston, the Progressive Conservative leader, told reporters on Thursday that he considers the evidence released to show the government had engaged in a “coverup.”

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“It certainly looks like Mr. Cameron had instructions. They were very clear. They were known to the premier’s advisers. It was only after the public outcry that the premier said he had no idea,” he said.

“It’s a shame Mr. Cameron’s reputation was put on the line by the premier, just attempting to protect his own political skin.”

This report by The Canadian Press was first published Feb. 20, 2020.

– With files from Keith Doucette.