N.S. government wins temporary bid to keep 'unconquered people' file secret

Robert Short/CBC

The Nova Scotia government has won another temporary victory in its attempts to keep court documents sealed relating to a controversial brief that suggested the Mi'kmaq in Nova Scotia were a conquered people.

On Wednesday, Supreme Court of Canada Justice Russell Brown sided with the province and ordered a stay of a July 4 Nova Scotia Court of Appeal decision that ordered the files be released on Thursday, July 18.

The decision did not include reasons, but said the stay would be in force until the Supreme Court deals with the matter, "or until further order of the Court or a judge."

Last Friday, Nova Scotia Justice Department lawyers asked the Supreme Court of Canada for a "stay of execution" to prevent the release of documents that could be embarrassing to the Liberal government of Stephen McNeil.

On Wednesday, the province went a step further and requested an "urgent motion for a stay" in a last-ditch attempt to head off Thursday's planned release of the documents.

Those motions — along with a response from Bruce Outhouse, who is representing Alex Cameron, a former Justice Department lawyer who was removed from the file in 2016 — are not available to the public.

Tory leader believes information in file is 'very damaging'

PC Leader Tim Houston said he's amazed at the steps the government has taken to keep the information secret.

"Obviously, the province is terrified of what may be in these documents," he said. "They've gone through incredible amounts of effort, spent an incredible amount of money to continue to hide the information, so it certainly leads me to believe that whatever is in these documents is very, very damaging to the government."

Justice Department spokesperson Sarah Levy MacLeod said because the matter is before the courts, it wouldn't be appropriate to comment in detail about the case.

"This is a complex and important case that involves solicitor-client privilege," she wrote in an email. "It arose out of a matter involving the duty to consult with First Nations. We take that duty seriously."

What a judge ruled 2 weeks ago

Almost two weeks ago, Nova Scotia Appeal Court Justice Duncan Beveridge called the province's arguments to keep the information secret "spurious" and "hollow."

Cameron acted on the province's behalf during a 2016 court hearing relating to the controversial Alton Gas project. The Sipekne'katik First Nation opposed Alton Gas's proposal to store natural gas in underground chambers that would be excavated from salt deposits near the Shubenacadie River.

Cameron 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'kmaq communities.

That argument sparked outrage and led Premier Stephen McNeil to personally apologize to a group of Mi'kmaq chiefs. He insisted that was not the province's position.