Hon. Jane Cordy: Honourable senators, I note that this item also is at day 15. Therefore, with leave of the Senate, I ask that consideration of this item be postponed until the next sitting of the Senate.

Some Hon. Senators: Nay.

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, I note this item is at day 15. Therefore, with leave of the Senate, I ask that consideration of this item be postponed until the next sitting of the Senate.

The Hon. the Speaker pro tempore: Is leave granted, honourable senators?

Hon. Tony Loffreda: Honourable senators, I note that this item is at day 15. Therefore, with leave of the Senate and notwithstanding rule 4-15(3), on behalf of Senator Clement, I move the adjournment of the debate for the balance of her time.

The Hon. the Speaker pro tempore: All those opposed to the motion will please say “nay.”

Some Hon. Senators: Yea.

Some Hon. Senators: No.

Hon. Senators: Question.

The Hon. the Speaker pro tempore: I believe the “nays” have it.

And two honourable senators having risen:

Hon. Michèle Audette: Honourable senators, I’d like the vote to be deferred to the next sitting of the Senate.

The Hon. the Speaker pro tempore: Okay. All those in favour of the motion, please say “yea.”

Some Hon. Senators: Yes.

The Hon. the Speaker pro tempore: It was moved by the Honourable Senator Black, seconded by the Honourable Senator Osler, that this report be adopted. Is it your pleasure, honourable senators, to adopt the motion?

Hon. René Cormier: Colleagues, I rise today to speak to Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada, which was introduced in the Senate by Senator Jim Quinn on September 19.

I’d like to acknowledge that I am speaking to you from the unceded territory of the Algonquin Anishinaabe people.

Our study of this bill must take into account the historical, political and legal context surrounding it. I think these perspectives are essential to understanding the purpose of this legislative measure and the questions it raises.

The Chignecto Isthmus is the piece of land that connects New Brunswick and Nova Scotia. The system of dykes and aboiteaux that has been protecting it for centuries from the high tides in the Bay of Fundy holds a special historical and cultural place in the collective psyche of the region’s residents, particularly Indigenous people and Acadians.

[English]

The Mi’kmaq people occupied these lands long before Europeans arrived on the continent. The name “Chignecto” is, in fact, a European adaptation of a Mi’kmaq term for a much larger region: Siknikt, meaning drainage place.

In an article entitled “Revealing the History of the Isthmus of Chignecto: Toward Truth and Reconciliation,” Anne Marie Lane Jonah wrote:

. . . Archaeological investigations have found objects for hunting and food processing, trade goods, and cultural practices, demonstrating the sustained and consistent use and the importance of the region for trade and habitation over millennia. . . .

. . . The first Acadian settlers came to this area not only because they recognized its agricultural potential, but as importantly, because it was a Mi’kmaw place and a centre for trade.

[Translation]

When the Acadians arrived in this area in the early 17th century, they used an Indigenous agricultural technique to farm the Bay of Fundy’s saltwater marshes. It involved a water control system equipped with a breakwater to prevent the high tide from flooding the fields, while still allowing rainwater to drain off. This system of dykes and aboiteaux that enabled the Acadians to drain many hectares of marsh in order to farm is a fundamental aspect of Acadian culture.

Historian Ronald Rudin, distinguished professor emeritus at Concordia University’s history department said the following, and I quote:

 . . . when the Acadians were deported in the mid-18th century, 8,000 hectares of marshland had been drained, while on higher ground, only 200 hectares of forest had been cleared. That is why Acadians were known as “défricheurs d’eau” or clearers of water.

Roger Blais’s 1955 fictional documentary The Dikes, one of the first Acadian films made by the National Film Board, depicts this unique reality.

Although it is a work of fiction, this film shows how, in the 1950s, Acadians were dealing with the rapid deterioration of their dyke system and how major repairs were done in that region, including on the Chignecto Isthmus, to hold back the waters of the Bay of Fundy.

We have no choice but to acknowledge that, over the past few decades, new threats have arisen that were not contemplated at the time. Today, colleagues, the Chignecto Isthmus is especially vulnerable to rising sea levels and weather conditions caused by climate change.

Last year’s Chignecto Isthmus Climate Change Adaptation Comprehensive Engineering and Feasibility Study by the provinces of New Brunswick and Nova Scotia notes the following:

Induced Sea Level Rise (SLR) and coastal subsidence is forecasted to threaten a large portion of the coastal infrastructure in Atlantic Canada before the year 2100. The current Chignecto Isthmus dykes are at risk along with the various Trade Corridor infrastructure components they protect such as: TransCanada Highway, CN Rail, 138 kV and 345 kV electrical transmission lines, fibre-optical cables, a wind farm, agricultural cropland activities and various other utilities.

Given its importance to the country as a trade and transportation route, not to mention is agricultural value to the inhabitants of the region, it would indeed be catastrophic if the isthmus were to be flooded by 2100.

[English]

The Senate Committee on Transport and Communications is currently studying the impacts of climate change on critical infrastructure in the transportation and communications sectors — for instance, those located on the isthmus — and its members have heard relevant testimony on this subject.

Colleagues, allow me to quote David Kogon, the current mayor of the Town of Amherst, Nova Scotia:

We now feel that because we are seeing the sea levels rise, it will take less of a storm to breach the dikes, and our storms are getting more frequent and more intense. . . . the storm of a lifetime has become an annual event. When we look back over the last three or four years, we’ve had more hurricanes than we’ve had in many years prior.

The vulnerability due to climate change is the issue. It’s not that the dikes are destroyed, but they’ll be overcome by one of these storms. So the rail line being in good condition, the road being in good condition and the power lines being in good condition will all be for naught when the flood occurs.

We are vulnerable. We could have a high tide, full moon and hurricane at any time. That’s why we feel there is a major urgency to getting mitigation efforts started.

[Translation]

It is clear, then, that we need to adapt the isthmus dyke system to the effects of climate change before it’s too late.

The federal government and the provincial governments of New Brunswick and Nova Scotia agree on the need to restore this system, but do not agree on how it should be funded. New Brunswick and Nova Scotia feel that the federal government is entirely responsible for the work and for footing the bill, although Nova Scotia is proposing to pay 50%, based partially on the fact that the provinces own the Trans-Canada Highway that crosses the isthmus. The cost of the project to restore the system is estimated at $650 million.

Against that backdrop, the Nova Scotia government asked the Nova Scotia Court of Appeal to clarify whether the federal government has “exclusive” responsibility to maintain the dykes and other structures in place to protect the isthmus. It goes without saying, colleagues, that this legal process raises constitutional questions that go beyond the issue of funding.

With that in mind, Bill S-273 would make the federal government responsible for dyke restoration work through a statement by Parliament indicating that this work is for “the general Advantage of Canada” under paragraph 92(10)(c) of the Constitution Act, 1867.

In doing so, we can reasonably assume that it will be responsible for footing the entire bill for the work, thus fulfilling the wishes of the New Brunswick and Nova Scotia governments.

[English]

In his second reading speech on October 3, Senator Quinn presented some of the reasons for using the federal declaratory power, including the national importance of the dike restoration project given that it protects a number of elements essential to the country’s economic well-being such as the Trans-Canada Highway and the CN railway. He insisted that the planned 50% federal funding was insufficient given that this was a project of national interest.

Considering the context of Bill S-273 — and while I recognize the historical, cultural, economic and, shall we say, national importance of the dike system that protects the isthmus, including the related works — I have a few questions about the merits of this legislation.

[Translation]

As the legislative body in charge of providing sober second thought on legislation, is the Senate best placed to determine who is constitutionally responsible for the work in the Chignecto Isthmus?

Is it the best forum for adopting a bill likely to have a financial impact on the federal government?

Should the Senate interfere in this type of federal-provincial relationship, especially when we’re awaiting the outcome of the legal proceedings initiated by the Government of Nova Scotia?

In a spirit of cooperative federalism, shouldn’t we be promoting federal-provincial diplomacy for resolving the impasse? These are the questions I ask myself and I think they should be carefully considered in committee.

In this chamber, our former colleague André Pratte said that the declaratory power is a measure that should be used only as a last resort.

He said the following:

The declaratory power is the least federalist measure a central government can take. Some have called it the nuclear bomb of the federal government’s arsenal.

He went on to say this:

Renowned constitutional law professor Peter Hogg has commented that the federal Parliament’s power under section 92(10)(c) is in conflict with classical principles of federalism.

These assertions are all the more reason to take the time to carefully study the nature and potential scope of using declaratory power.

[English]

Colleagues, there is no doubt that the rapid and effective restoration of the Chignecto Isthmus Dykeland System in the face of the growing threat of climate change is in the interest of all Canadians, a national reality that underlies Bill S-273, and I sincerely thank Senator Quinn for bringing this issue to our attention.

[Translation]

As one of our most talented Acadian songwriters wrote in his famous song called “Les Aboiteaux”:

but somewhere the dikes are waiting

for the land around them to stir

telling us to set off before arriving

whispering of wonders to discover

It is indeed time to wake up and take action in the face of the fragility of this piece of land that unites not only New Brunswick and Nova Scotia but our entire country.

However, I feel that this legislation raises more questions than it attempts to resolve. I therefore invite my colleagues to examine this legislation in committee with all due attention.

Thank you.

[English]

The Hon. the Speaker pro tempore: We will suspend to take care of our sound issue.

(The sitting of the Senate was suspended.)

(The sitting of the Senate was resumed.)

On the Order:

Resuming debate on the motion of the Honourable Senator Gerba, seconded by the Honourable Senator Klyne, for the second reading of Bill C-282, An Act to amend the Department of Foreign Affairs, Trade and Development Act (supply management).

Hon. Percy E. Downe: Would the senator take a question?

Hon. Mary Jane McCallum: Honourable senators, I rise today to speak to Bill C-282, An Act to amend the Department of Foreign Affairs, Trade and Development Act (supply management). I would like to thank Senator Gerba for sponsoring this very important bill.

Colleagues, I would like to begin by repeating part of her speech because it bears repeating. In her remarks, Senator Gerba stated:

Honourable senators, Bill C-282 is about protecting the supply management system. It is very simple. The bill amends section 10 of the Department of Foreign Affairs, Trade and Development Act to safeguard the system by making it a ministerial responsibility. It adds supply management to the list of directives that the minister must adhere to in conducting Canada’s external affairs, specifically during free trade agreement negotiations. The minister responsible for international trade won’t be able to do anything that would hurt supply management. It can no longer be used as a bargaining chip. Taking supply management off the table in international negotiations will preserve it forever.

Supply management in dairy, eggs and poultry has been a polarizing topic both nationally and internationally. What are the rifts that exist between those who support and those who oppose the system? In a 2017 article entitled “’Milk is Milk’: Marketing Milk in Ontario and the Origins of Supply Management,” author Jodey Nurse-Gupta examines the divisions between industry stakeholders during the implementation of the Ontario Milk Marketing Board, or OMMB, in order to better understand why some saw the board’s plan as rational and fair while others believed that OMMB policies infringed on their freedom and retarded the rationalization of the Ontario dairy industry.

Before the OMMB was established, chronic oversupply of milk resulted in devastatingly low milk prices. The divisions that existed between dairy producers were based on the differing purposes of milk production — those who produced fluid milk for the consumer; those who produced milk for cheese making; those who separated cream on the farm for butter making; and those who supplied industrial milk for manufacturing items like powdered or condensed milk — resulted in conflict between producers when milk prices were low. The OMMB was formed in 1965 to ensure that all producers received the same, fair price for their milk.

The reaction to pooling milk was met with anger among those producers who had held advantages in the dairy industry but who were now forced to participate in what they called:

. . . nothing more than a socialist grab of the money paid to some producers, so that other producers can get paid for their milk. . . .

William Macpherson, the OMMB’s director of finance, responded by saying:

. . . no question at all that we are taking from the rich and giving to the poor. That’s what we’re here for. . . .

. . . milk is milk, and it deserves a price based on the total market.

Others had reservations about a system of controlled production and marketing that did not allow for individuals to act independently in the market. Marketing boards in general had a history of being criticized for their interference with the laws of supply and demand and forced producer participation. By definition, a marketing board is a system of compulsory cooperation. Marketing boards require all producers of a certain product in a specified region to be compelled by law to adhere to the regulations of a marketing plan, which typically has the approval of the majority of producers of the product. The main objective was to maintain or increase, stabilize and equalize the income of producers.

Honourable senators, while milk is not the only supply-managed commodity in Canada — eggs and poultry are also supply managed — the dairy industry is most criticized because it holds significant market opportunities for dairy-exporting nations like the United States, New Zealand and states of the European Union.

Dairy producers elsewhere in the world have struggled in recent years to receive milk prices that cover their cost of production. Add in the issue of power asymmetry between producer and processor and/or supermarket and the result is a volatile mix. This contrasts with the Canadian system, suggesting that the stability Canada’s industry has in terms of reducing chronic milk surpluses and providing stable income for farmers will allow supply management to survive calls for it to be repealed.

The system of supply management as it exists today has undergone transformation over the decades. The basic pillars of the system — import controls, producer pricing and production discipline — were established in the 1960s and 1970s under the direction of provincial marketing boards with national coordination. Senator Gerba spoke articulately on these pillars in her speech. The creation of the OMMB was a significant catalyst in the development of supply management nationally.

Honourable senators, there were conflicts over market intervention. Some saw marketing board plans as rational and fair; others demonized the board for infringing on their freedom. Those who supported the OMMB included most of the provinces’ dairy producers who were suffering financial hardship; farmer representatives who witnessed the unfairness and instability inherent in previous dairy policies; and politicians and bureaucrats who were well aware of the social and economic costs of chronic overproduction. They recognized the necessity of controlling the milk supply and instituting fair farmer pricing in order to provide some balance within the historically unstable industry.

Those in opposition were fluid milk producers who believed they would lose market share to other dairy producers under the new system; dairy processors who resisted any interference in their ability to bargain for milk at the lowest possible cost; and consumers who were told by media outlets that they would be forced to pay more for their milk and other dairy products. Critics of controlled marketing also charged that such systems supported small-scale farmers at the expense of more modern, efficient and large-scale operations.

Opponents reinforced the idea that the OMMB’s policies were misguided by labelling such regulation as undemocratic and contrary to a free market system. The OMMB and their supporters defended the board’s policies as beginning the process of bringing rationality and stability to an industry where none had existed before.

Why was the supply system created? Why has it been maintained despite the proliferation of neo-liberal policies that dominate the discourse on international agricultural trade?

Colleagues, marketing boards first became popular in Canada after World War I because of the wartime grain price stabilization through the Canadian Wheat Board. The attraction for farmers and government was peace in the industry and reasonable pricing not subject to wild market fluctuations as well as a sense of fair play.

In 1929, during the Great Depression, marketing adjustments were sought by farmers in an effort to resist declining incomes. The result was the passage of two acts in 1927 and 1929 which were later repealed by the Supreme Court of Canada in 1931. However, they encouraged farmers to organize and demand orderly marketing from their governments.

Between 1929 and 1934, Ontario farm incomes had declined by over 40%. Dairy farmers were hit hard when dairy processors lost significant export contracts to Britain for items like cheese and domestic milk prices plummeted because of the “milk wars” between competing dairy processors and distributors.

While consumers benefited from the resulting cheap milk, price wars devastated the producers. Producers urged the government to pass legislation that would allow farmers more bargaining power to secure their “fair share of the consumer’s dollar.”

In 1934, the Milk Control Board, MCB, was established:

. . . to “bring some order out of the chaos” that the dairy industry had become. The MCB was given jurisdiction to “inquire into any matter relating to the producing, supplying, processing, handling, distributing, or sale of milk.”

Many governments around the world with valuable dairy industries retained more control over the dairy business after the war than before and moved to enact new regulations governing dairy production and trade.

Britain, New Zealand, Australia, Sweden, Denmark, Germany, Switzerland and Austria all introduced new legislation in the postwar period that enabled some sort of dairy support measures, including import restrictions, export subsidies, equalization schemes and price supports.

In the 1940s and 1950s, dairy exports declined in spite of increasing production. As stated by Nurse-Gupta:

Dairy farmers and their representatives insisted that more marketing control was needed to stabilize the industry and provide fair pricing for farm products. Critics insisted, however, that farmers had to “help themselves,” specifically by becoming modern and efficient producers.

Honourable senators, surplus dairy products continued to plague the industry in the 1960s. The federal subsidies for export dairy products such as butter, cheese, condensed milk and powdered milk caused overproduction.

It was the division of responsibility between the two governments based on the idea that fluid milk was a domestic issue, while other dairy products fell under export and trade responsibilities that was artificial and needed to be resolved.

While dairy processors had benefitted from oversupplies of milk through depressed prices, many farmers and farm leaders realized that the asymmetrical power relationships that existed between producers and processors in the dairy industry meant that farmers were price takers with little ability to negotiate fair terms individually. While critics of marketing schemes charged that marketing plans were dictatorial and socialist, supporters employed the language of exploitation and injustice to defend increased regulation in the industry.

The OMMB was able to establish the first milk pool in northern Ontario. It involved 342 farmers in the Nipissing, Sudbury and Manitoulin districts and served as a testing ground before the board began a milk pool for fluid shippers in southern Ontario in 1968. The pool was ultimately effective in raising milk producers’ incomes, and the response from area farmers was generally positive.

As the author of “Milk is Milk” writes:

Supply management was, and continues to be, a divisive topic because it challenges elements of neoliberal policies that are central to the discourse of international trade.

Increasingly, scholars and policy-makers are acknowledging that neoliberal policies:

. . . have been unable to secure healthy and sustainable returns for producers and have had serious consequences on animal welfare, the environment, agricultural workers, and food security and sovereignty.

In the 2014 article “Crying over Spilt Milk: The History of Dairy Supply Management and Its Role in Recent Trade Negotiations” —

The Hon. the Speaker pro tempore: Senator McCallum, I hate to interrupt you, but your 15 minutes has expired.