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Court documents allege premier, others knew of plan for 'unconquered people' argument

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Premier, deputy business minister dispute some of Alex Cameron's allegations

A Mi'kmaw camp is seen on the shores of the Shubenacadie River in Fort Ellis, N.S., on Monday, Sept. 26, 2016. Indigenous protesters set up the camp to oppose a plan by AltaGas Ltd. to create large underground caverns to store natural gas. (Andrew Vaughan/The Canadian Press)

Newly released court documents allege Premier Stephen McNeil and some of the most senior members of the Nova Scotia government knew of and supported the plan by a former Justice Department lawyer to make a court submission that the province did not have a duty to consult the Sipekne'katik First Nation on a proposed natural gas storage project.

Alex Cameron was removed from the case in December 2016 after a public relations firestorm developed from coverage of the matter, in which he argued the province did not have a duty to consult because that requirement only applied to "unconquered people," which he implied was not the case with Mi'kmaw communities.

The premier and one of his senior officials, however, countered on Thursday they did not know how far Cameron would go and did not support such an argument.

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Cameron ultimately retired from the department at the end of April 2017 and a few days later filed his lawsuit against McNeil and former justice minister Diana Whalen. At the time, both McNeil and Whalen disavowed Cameron's suggestion there was no duty to consult "in light of historical evidence of a 'submission' to the British Crown."

But in Cameron's affidavit, which was released Thursday after the Supreme Court of Canada denied the province's request for leave to appeal in hopes of keeping the documents from the public eye, Cameron suggested otherwise.

According to the affidavit, Cameron said then-deputy justice minister Tilly Pillay and Julie Towers, CEO of the Office of Aboriginal Affairs, were made aware of the plan ahead of hearings in 2016 and raised no objections during a meeting to prepare for the case.

Diana Whalen formerly served as the province's justice minister. (Andrew Vaughan/The Canadian Press)

"At the conclusion of the meeting, it was my understanding that all were agreed to advance the arguments I raised, including the sovereignty argument," said the affidavit.

But senior officials with the province disagree with the characterization of that meeting.

Justin Houston, CEO of the Office of Aboriginal Affairs, said in an affidavit that he and Towers expressed concern during that meeting that Cameron's brief did not reflect the province's current approach to Aboriginal and treaty rights and consultation.

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"There was no approval given to advance an argument raising a distinction in law based on whether or not a First Nation was "unconquered" — I do not believe that word was ever used," said the document.

Then-deputy environment minister Frances Martin also filed an affidavit saying Cameron did not seek advice on the argument or send a draft to her or anyone else seeking approval.

'Thrown under the bus'

According to Cameron's affidavit, problems first arose when his brief was raised during a session of question period at Province House in November 2016. At the time, the premier was asked if he supported the suggestion that the Sipekne'katik First Nation were a conquered people. Cameron said the question mischaracterized his argument.

As tensions grew in the public as media attention increased around the story, Cameron said in his affidavit that during a conversation with Pillay, she told him she thought it was likely that the sovereignty argument would be abandoned "and that I would be 'thrown under the bus.'"

It was then that Cameron contacted Bernie Miller to loop him into what was happening. Miller, the deputy business minister, was the deputy minister of the Office of Priorities and Planning at the time and a senior adviser to the premier.

In the lead up to the November hearing, Cameron said he was told during a conference call with senior government officials on Nov. 12 that unless he heard otherwise, he should assume he would advance the sovereignty argument. He asked that government "publicly clarify that the positions advanced in the brief were those of the province, and not those of me personally," something that never happened.

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The next day, he was informed the province would not advance the argument that there is no duty to consult. Miller, who was copied on the email, replied that he "did not agree" with the decision.

A subsequent email from Miller to Cameron said he was working with senior staff to try to clarify instructions. In that email, Miller refers to "Laura" and "Ryan," whom Miller confirms in an affidavit of his own were then-deputy minister to the premier Laura Lee Langley and the premier's then-deputy chief of staff, Ryan Grant.

Eventually, according to Cameron's affidavit, Miller told him that if the issue of his brief comes up in court, "it should be emphasized at all times that the Crown, as a matter of policy consulted fully and submits it met the duty to consult." Cameron said he got a call from Miller the morning of the hearing to tell him not to abandon the sovereignty argument, but to treat it as "subsidiary."

"Mr. Miller advised me that the instructions were those of a 'very tall gentleman' who I understood to be the premier."

In his own affidavit, Miller acknowledges he talked with the premier about the matter before contacting Cameron, but denies telling him not to abandon the sovereignty argument or that he was free to advance it as a subsidiary.

Cameron alleges that it was only as more negative media coverage brewed around the case that McNeil and Whalen both made statements to reporters that they had no idea the argument was coming and that it did not represent their government.

'This will be an issue'

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An email from communications staff following a scrum with reporters noted: "This will be an issue. For both minister and the case."

In a subsequent conversation with Miller, Cameron said he was told the premier "was a reasonable guy," that he'd had a "bad week" and that Miller believed "he would 'come around' and recognize what he had done."

But Miller's affidavit also disputes those allegations by Cameron.

"Mr. Cameron was upset and I said words to the effect of 'it has been a bad week' and 'this too shall pass.' I also emphasized that it was unfortunate that arguments had been advanced in the province's briefs without the responsible ministers being informed and asked for instructions."

Cameron asked the clerk of the executive council for an apology, but one never came. Miller later told him the government needed a scapegoat but that he didn't think it would be him, according to the affidavit, something Miller also denies in his affidavit. Miller alleges Cameron failed to follow instructions.

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"It is evident that Mr. Cameron followed his own course in his argument, and deviated significantly from the direction I had provided him in my email that morning [of the hearing]," said the affidavit.

Miller goes on to say he was "startled" to read the submissions Cameron made in court "because I did not authorize Mr. Cameron to make them."

On Dec. 5, 2016, Cameron was told the file was being reassigned, but that it was expected he would continue to work on his other files. Publicly, however, government officials would not say if Cameron had been punished or if his employment situation had changed. Fifteen days later, with a new lawyer on the file, the sovereignty argument was withdrawn as McNeil had a face-to-face meeting with Mi'kmaw chiefs to try to distance his government from the argument.

'We met our obligation,' says premier

Speaking to reporters following the opening day of the legislature, McNeil said he and members of his government have been completely forthright about how the situation played out.

"That was not the argument of the government. So let me be clear: we've continued to say, which I've said from Day 1, we have a duty to consult and we met our obligation. That was it. Period."

McNeil would not say if someone in government asked Cameron to remove the submission before the argument was made in court. He would also not say if Cameron was acting alone or when the government might release the legal fees it's paid trying to keep the documents from being publicly released.

'My reputation has been shattered,' says Cameron

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Cameron said a third-party review of the file was conducted and he participated "because it appeared to me at the time to be the quickest way to restore my reputation." The report was completed and presented to government, but according to his affidavit, Cameron was never given a copy.

"The foregoing events have been extremely distressing and upsetting to me," he said in the affidavit.

"My reputation has been shattered, and I have lost significant economic opportunities."

None of the allegations has been proven in court.

Tories allege coverup

McNeil said he's always told the public "exactly what I know and what I knew" about the matter, but Tory Leader Tim Houston said the documents released Thursday suggest "an effort to cover up what actually happened."

"Mr. Cameron was a faithful civil servant for a long time, very well-respected lawyer and it's just a shame that his reputation has been put on the line by a premier and group of people that certainly were just looking to protect their own political skin from what we can see," he said.

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