The province of Nova Scotia has filed with the court its statement of defence of Alex Cameron’s constructive dismissal lawsuit.
Cameron was the provincial lawyer who argued in court briefs and in oral arguments before the court that the province had no legal obligation to consult with the Sipekne’katik First Nation about the Alton Gas project on the Shubenacadie River. In one brief, Cameron referred to the Mi’kmaq as “conquered people.”
After the contents of Cameron’s arguments became public, Premier Stephen McNeil and then-Justice Minister Diane Whalen stated they disagreed with the argument. Cameron was removed from the file, and then resigned.
Cameron filed a “constructive dismissal” lawsuit against the province, claiming that his job was made untenable and that McNeil and Whalen had defamed him.
The government attempted to thwart Cameron’s lawsuit by claiming that solicitor-client privilege prevented Cameron from discussing the Alton Gas case, even before the court. But the court ruled that the government had effectively waived its privilege when McNeil and Whalen publicly criticized Cameron. The province appealed that ruling, but the Supreme Court of Canada* upheld it, allowing Cameron’s lawsuit to continue.
That brings us to the province’s statement of defence in constructive dismissal matter. In the statement, which was recently filed with the court, the province paints Cameron as a rogue employee, claims he filed briefs with the court without first running them by government officials, and he then disobeyed instructions to abandon his argument that the province had no duty to consult the Sipekne’katik First Nation by making that argument before the court anyway.
Cameron’s legal briefs
The province is represented by William McDowell, a partner at the Lenczner Slaght law firm in Toronto.
McDowell notes that Cameron had a long-time interest in the issue of Canadian governments’ treaty obligations to First Nations. Cameron even wrote a book about it in 2009: Power Without Law: The Supreme Court of Canada, the Marshall Decisions, and the Failure of Judicial Activism. In the book, “Cameron criticized the Supreme Court of Canada’s approach to treaty interpretation and to the Honour of the Crown in respect to the Mi’kmaq of Nova Scotia,” writes McDowell in the province’s statement of defence.
“Cameron advanced these personal criticisms as counsel on behalf of Nova Scotia in the Alton Gas Appeal without instructions and to the detriment of his client,” the statement continues.
Cameron was assigned to the Alton Gas file in the spring of 2016, and on June 8, 2016, he had a phone call with Julie Towers and Justin Huston of the province’s Office of Aboriginal Affairs (OAA). According to the statement, in that conversation Cameron said he was going to raise issues with the court about the validity of treaties with the Mi’kmaq; Towers and Huston replied that that wasn’t necessary, as the province’s argument was that it recognized the duty to consult the Sipekne’katik, but that it had in fact done a proper consultation.
The following week, however, Cameron filed a brief that made the exact opposite claim, as McDowell tells it:
a) the duty to consult Sipekne’katik was not engaged, or was engaged at a low level, because Sipekne’katik did not possess treaty rights of the kind described in the Marshall No. 1 decision; and,
b) Marshall No. 1 was wrongly decided by the Supreme Court of Canada.
Arguing before a provincial court that the Supreme Court of Canada decided wrongly, well, takes chutzpah.
More than that, McDowell claims in the province’s statement of defence that Cameron did not send a draft of the brief to the Department of Environment, the OAA, the Department of Justice, or any other department, and he had been given no instructions to pursue that line of argument, which again, contradicted the province’s claim that it recognized the duty to consult the Sipekne’katik, but that it had in fact done a proper consultation.
The next day, Justin Huston at OAA received the already-filed brief and called a meeting of provincial officials. That meeting was held on June 25. Present were Huston and Towers from the OAA; the acting deputy minister of Justice, Tillay Pillay; and Cameron. According to McDowell, Cameron was told once again that it was the province’s view that there was a duty to consult the Sipekne’katik, but that it had in fact done a proper consultation.
But four days later, Cameron filed another brief with the court, which argued:
a) the Honour of the Crown is engaged by the assertion of Crown Sovereignty over sovereign “unconquered peoples” only; and,
b) evidence of a “submission” by Sipekne’katik to the Crown in 1760 negated any subsequent constitutional duty of consultation owed to Sipekne’katik.
Again, according to the statement of defence, Cameron did not run the brief by any provincial officials before he submitted it to the court.
Premier Stephen McNeil was asked about Cameron’s brief and the “conquered people” argument on the floor of the legislature on November 9, and was blindsided by it, as the premier had no knowledge of the brief. McNeil said, in part:
“… we believe the duty to consult — the obligation — was fulfilled. We take it very seriously that the First Nations of this province — the Mi’kmaq, the people whose land we are on — are part of the process as we go through any development in Nova Scotia.”
“Back door conversations” with Bernie Miller
The court hearing was scheduled for Monday, November 14. According to the province’s statement of defence, over the weekend before the hearing there was a flurry of activity.
First, on Friday evening, Cameron contacted Bernie Miller, perhaps the most connected bureaucrat in Nova Scotia. Miller and Cameron had a personal relationship that predates their employment with the province; at this time Miller was a Senior Executive Advisor in the Executive Council Office, but he had no active involvement in the Alton Gas issue.
According to the statement, Cameron sent Miller an email saying that the Alton Gas project “ha(d) met with native opposition” and there had “been some howls about it from certain quarters in the media, and it may be that some in government would like the point [that no duty to consult might be engaged] dropped.” Cameron went on to say that if the province abandoned his argument in court, “[t]hat could potentially be to the province’s long term disadvantage.”
On Saturday, there was a conference call with Karen Hudson, the deputy minister of Justice; Julie Towers and Justin Huston from the Office of Aboriginal Affairs; Frances Martin, the deputy minister at the Department of Environment; Tillay Pillay, who by this time was the executive director of Legal Services; Peter McLaughlin, the director of communications in the Department of Justice; and Cameron.
As portrayed in the document, Cameron was told that his concern about treaty rights was besides the point, but Cameron resisted “pulling back” the argument, and insisted that objecting to a constitutional duty to consult the Mi’kmaq was essential.
To that, Huston told Cameron that “we do not need to get into Treaty rights or title” because “[t]here is an Aboriginal right to fish in the river in any event, so a duty to consult arises.
Cameron, says the statement filed by McDowell, was to respond “with words to the effect of ‘I’m not even acknowledging that.’”
After the call, Cameron emailed Miller again, complaining that the others on the call didn’t understand his point.
On Sunday, there were emails back and forth all day, culminating with what an email from Karen Hudson, the deputy minister of the Department of Justice, directly to Cameron, with what the statement of defence calls “explicit instructions.” Hudson’s email read in part:
The province’s position is: There was consultation and it was extensive and thus sufficient; The province will not advance a position that there is no duty to consult … The above deals with substance and as always, tone is also important … I appreciate that this is contrary to what you advocated for on the call.
After he received Hudson’s email, at 7:43pm on Sunday evening, Cameron again emailed Miller, forwarding Hudson’s email and apparently attempting to go over her head. That email read in part:
[F]or my piece of mind could you confirm the email below — which you were copied on — is correct?
The statement of defence doesn’t quote Miller’s response, but Cameron later, at 10:16pm, emailed Hudson:
Bernie tells me that your instructions this evening are not accurate. I am in court on this at 9:30 tomorrow morning so it would be good to have your instructions before then.
Hudson wrote back:
Bernie will advise you.
Bernie and I did connect later tonight for tomorrow (I did reach as you suggested this aft and advised in my earlier email that Bernie or D Langley would advise if I misstated). He will advise you of any changes as soon as he can …
The statement claims that the next day, the morning of the hearing, Miller met with Premier Stephen McNeil; McNeil “stated that the Province recognized a duty to consult, and that the only thing that should be argued in court was that the Province recognized the duty to consult and had met that duty through extensive consultation.”
As an aside, email documentation of the premier’s conversation with Miller might have helped the province’s case in this instance, but McNeil has stated he uses phone calls in order to work around Freedom of Information laws that would allow reporters and others to obtain email communication. So we’re left with the word of Miller and McNeil.
In any event, the statement goes on to say that Miller emailed Cameron at 8:20am with the following instructions:
1. Consultation has occurred and the Crown met the appropriate standard;
2. Nova Scotia recognizes a responsibility to consult and does so and has consulted in this case. In addition to the policy adopted in NS for consultation, a constitutional duty arises when triggered by section 35 of the Constitution Act;
3. Notwithstanding the main argument, the Brief [that is, the “conquered people” brief Cameron had already submitted to the court] raises legal points regarding the nature and existence of the duty in the specific evidentiary basis of the case for the [province]. 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 of policy consulted fully and submits it met the duty to consult. (emphasis added)
McDowell comments in the statement:
The third point in Mr. Cameron’s instruction was prompted by what Mr. Miller understood to be Mr. Cameron’s concern — the risk of resiling from the positions taken in the brief and the the possibility of an adverse finding being made against the Province in relation to Aboriginal rights. It was included as a result of Mr. Cameron’s urgent, back door conversations with Mr. Miller on the weekend before the argument. It was not discussed with the Premier, with any official, or with anyone else who had been involved.
Thus, on the morning of the first day of the hearing on November 14, 2016, Mr. Cameron’s instructions (following his own importuning of Mr. Miller into the process) were to advance, as his primary position, that the Province of Nova Scotia had a duty to consult and the the Provincial Crown had met the appropriate standard of consultation. Any further argument about the duty to consult in “this case” was relegated to a passive role only, and was to be advanced only “if the court consider[ed] it necessary,” and while emphasizing that the Province “met the duty to consult.”
The court hearing
As McDowell tells it in the statement of defence, when Cameron showed up in court for the oral argument, after some preliminary discussion, his first words were “I’m going to start talking about treaties.”
The statement of defence recounts Cameron’s argument to the court over four pages. It involved a single letter from a British military officer named Col. Frye who related that two “Indian Chiefs” had submitted to British authority, and therefore “according to that document these individuals, on behalf of their bands, were to come and make submissions for themselves and tribes to His Britannic Majesty.”
Wrote McDowell in the statement of defence:
Mr. Cameron had no instructions to make the submissions that he advanced at the hearing of the Alton Gas Appeal.
On the contrary, Mr. Cameron sought to circumvent the clear instructions from Deputy Minister Hudson by engaging Mr. Miller, who was not briefed on the arguments and who would not typically not provide instructions in the circumstances, in an effort to obtain his desired instructions.
…
Mr. Cameron then not only inverted the sequence and priority of the argument he had been instructed to make, be he also never made the argument he was instructed to make. Quite apart from instructions, Mr. Cameron advanced an argument that was wrong at law, that was not the position of the government of Nova Scotia, and that never should have been made.
Mr. Cameron’s submissions represented his personal views, were taken directly from his book, were never condoned by his client, and were advanced to serve his personal agenda and not the interests of his clients.
The statement of defence goes on to dismiss Cameron’s claims that McNeil and Whalen had defamed him.
The court has not ruled on the truth and the legal arguments of either Cameron’s wrongful dismissal argument or the province’s statement of defence have not been adjudicated.
* as originally published, this article misidentified the court.
For whatever it’s worth, I believe the Province’s characterization of how all this unfolded is essentially correct. Neither Premier McNeil nor Min. Whalen would ever have authorized the arguments Cameron put forward. My guess is he made the arguments he personally wanted to make, despite being expressly directed not to.