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The province is poised to take the conquered people case to the Supreme Court of Canada.

The move is a last-ditch effort to withhold sensitive documents in a lawsuit against the province launched by former government lawyer Alex Cameron.

Last month, the Nova Scotia Court of Appeal upheld a lower court ruling in Cameron’s favour that waived the government’s right to invoke solicitor-client privilege in an ongoing court battle dubbed the conquered people case.

Justice David Farrar ordered that the previous Nova Scotia Supreme Court decision be released, unredacted, on Friday. But on Friday the Court of Appeal granted the province’s request to stay the order and extend the temporary sealing order and publication ban on the file. The motion states the attorney general of Nova Scotia intends “to seek leave to the Supreme Court of Canada and if leave is granted to appeal to the Supreme Court of Canada.”

Jennifer Stairs, Executive Office of the Nova Scotia Judiciary spokeswoman, confirmed the motion is scheduled to be heard on June 13. She said the matter would likely be closed to the public as have the other proceedings.

Cameron was removed as government counsel in an Indigenous rights case in December 2016 after arguing the Mi’kmaq were a conquered people and therefore the province had no duty to consult the Sipekne’katik Band in its decision to approve a plan by Alton Gas to store natural gas in salt caverns near the Shubenacadie River.

Responding to a firestorm of public criticism, Premier Stephen McNeil and the provincial government condemned Cameron’s controversial argument. McNeil has insisted that the lawyer was acting on his own.

Important questions

"solicitor-client privilege is not an absolute right... It’s important and needs to be protected, but on the face of it it seems to me this an appropriate exception." - Wayne MacKay, Dalhousie University law professor

But Peter Adema, director of operations with the Sipekne’katik Band, isn’t buying it. He said the legal saga shows the province is hiding something.

“Of course the province was trying to erode and ignore our rights,” said Adema. “What are they hiding?”

Wayne MacKay.

Adema, who said he’s speaking for himself and not for his band, insisted the redacted information would demonstrate the province’s top-down disregard for Mi’kmaq rights.

Wayne MacKay, a Dalhousie University law professor, said Adema raises important questions. MacKay said that, on the face of it, Cameron deserves to have access to the redacted information to make a counter-argument to the province’s position that he “was a rogue lawyer off on a frolic of his own.”

“If that’s not the case and the Nova Scotia government was more implicated than perhaps appears, that’s a matter of public interest, not only for Mi’kmaq but all Nova Scotians, if that’s true,” said MacKay, an expert in human rights law.

“We should be concerned about the fair treatment of all groups, including vulnerable groups in our society. But particularly in an age where we talk about reconciliation and a new and more positive relationship with our First Nations people then it’s really important that our governments act honourably in relations to those First Nations people, and maybe that’s so. But the best way to get rid of rumours and doubts is to have transparency.”

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

MacKay figures the province has two main motivations for taking the case to the country’s highest court, and spending big bucks in the process: upholding the principle of protecting solicitor-client privilege and fear of releasing whatever information is in the documents.

“But solicitor-client privilege is not an absolute right,” he said. “No one is suggesting that we should throw away solicitor-client privilege. It’s important and needs to be protected, but on the face of it it seems to me this an appropriate exception and you should be able to argue it is because otherwise how could Mr. Cameron have a fair counter argument without this information being made available?”

Department of Justice spokeswoman Heather Fairbairn would not comment on the planned Supreme Court application, but confirmed that a motion had been filed with the Court of Appeal to extend the publication ban and confidentiality order.

“As this is a matter that remains before the courts it would be inappropriate to comment further,” said Fairbairn.

The premier stated in mid-May that the province has not had any conversations about seeking an out-of-court settlement with Cameron to prevent the redacted information from becoming public. At the time, he wouldn’t say if the province was considering a further appeal of Farrar’s decision.

“I can tell you that we will protect and argue cabinet confidentiality and privilege, privileged documents,” McNeil said at the time.

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