Province backtracks on pledge to release legal fees in 'unconquered people' case

A Halifax privacy lawyer is questioning why the Nova Scotia government is keeping secret the amount taxpayers are paying a Toronto law firm hired to defend the province in the "unconquered people" case.

Halifax privacy lawyer David Fraser, who has dealt with cases involving legal fees and privacy concerns, said it is generally accepted this kind of information is not subject to the normal protection afforded lawyers and their clients.

"The total amount that a public body pays lawyers is generally not itself privileged and would be subject to release under access-to-information laws," he said.

The case involves former Justice Department lawyer Alex Cameron, who was removed from a high-profile 2016 court case after suggesting the Sipekne'katik First Nation were a conquered people and therefore the government did not have a constitutional duty to consult with them. 

The provincial government has been fighting almost ever since to keep files related to Cameron's work secret, including what he may have been instructed to do.

Judge ordered documents be made public

In a ruling handed down in early July ordering the documents be made public, Nova Scotia Appeal Court Judge Duncan Beveridge said the files could cause "embarrassment" for provincial officials.

Last week, Supreme Court of Canada Justice Russell Brown sided with the province and ordered a stay of Beveridge's decision. The stay is in force until the Supreme Court deals with the matter.

The province is paying three lawyers from the Toronto law firm Lenczner Slaght Royce Smith Griffin to represent McNeil, the Justice Department and former cabinet minister Diana Whalen.

The department has refused to say when the province hired the Ontario lawyers, why it needed outside help to defend itself and the two cabinet ministers, or why this specific firm was chosen.

On Thursday, during a scrum following a cabinet meeting, AllNovaScotia.com reporter Brian Flinn asked Premier Stephen McNeil for the cost of the legal fees.

"I'll get you the number," he said. "I don't mind having it out. I'll find out and let you know."

Hours later, however, the premier's office emailed Flinn and CBC News with a different message.

"We consulted with the Department of Justice and legal accounts are subject to solicitor-client privilege," wrote Kristina Shannon. "This matter is still before the courts."

"We will disclose the fees when this matter has ended."

Fraser says exclusions don't apply in this case

Fraser said there were instances where someone could argue privilege, but this doesn't appear to be one of those times.

"If those legal bills would disclose information that relates to the advice sought or obtained from a lawyer, then those legal bills or those portions would be subject to privilege and could be withheld," he said.

Fraser called the promise to release the figures once the case was dealt with "a nod toward transparency," but he couldn't see any reason why it needed to be withheld until then.