Nova Scotia minister vows to find out how 'unconquered people' brief got to court

Nova Scotia's justice minister doesn't know how a legal brief arguing the government only has to consult "unconquered" Mi'kmaq people made it to court, but she's trying to find out.

The brief presented by government lawyer Alex Cameron is about plans by Alton Gas to store natural gas in salt caverns near the Shubenacadie River. Cameron argued the government's obligation to consult with First Nations peoples in such cases only extended to "unconquered people" and that a band's submission to the Crown in 1760 negated its claim of sovereignty and negated government's constitutional duty to consult.

"We are upset. I am upset as the attorney general that this has happened. This doesn't reflect the government's position," Diana Whalen told reporters Thursday.

Premier Stephen McNeil also said that's not the government's position.

'We're all treaty people'

"The words that were attached to a brief that went before the court were not mine and were not my feelings. I believe the foundation of this province and this country is in those treaties," McNeil said Thursday.

"We have a duty to consult. The Supreme Court (of Canada) dealt with that issue a long time ago."

McNeil's argument is that the government did consult in the Alton Gas case. The Indian Brook band disagrees. The legal brief remains in the government's court case, but McNeil said it is looking into whether it can be removed.

"We're all treaty people," McNeil said. "There's rights and obligations for everybody in those treaties, and it's important that we understand them."

Government lawyer objects to Marshall ruling

Cameron's 2009 book, Power Without Law, argued the Supreme Court of Canada was wrong when it ruled in favour of Donald Marshall Jr. in a 1999 case. The court ruled Marshall was wrongly arrested for catching and selling eels out of season, saying the Mi'kmaq man was lawfully exercising his treaty rights.

Cameron's position led Mi'kmaq chiefs in 2009 to request that he not handle government files relating to Indigenous issues. Whalen said she, as minister, doesn't assign files. She didn't know who assigned Cameron to the Alton Gas case, nor did she know about the chiefs' request.

She wouldn't say if Cameron would handle future Indigenous files.

"I want to ensure that in every case, we're very clear about who the client is. The justice lawyers are reporting to the government. They have a client; they need to take direction and advice from their client," Whalen said.

"I want to make sure that those reporting relationships are clear. I think it's possible in this case it wasn't."

Chief accepts apology

McNeil also said he had "expressed his regret and apology" to the chiefs and Mi'kmaq communities. He was already scheduled to talk to Nova Scotia's Mi'kmaq chiefs today.

Chief Terry Paul of the Membertou First Nation said he was pleased with the premier's answer. 

"We're very fortunate to have a government that is willing to listen to the Mi'kmaq."