Some Hon. Senators: Hear, hear.

(On motion of Senator Martin, debate adjourned.)

Leave having been given to proceed to Other Business, Inquiries, Order No. 22:

On the Order:

Resuming debate on the inquiry of the Honourable Senator Cardozo, calling the attention of the Senate to the future of the CBC/Radio-Canada.

Hon. Rosemary Moodie: Honourable senators, I rise to speak to Bill C-64, An Act respecting pharmacare.

I want to thank Senator Pate for her work as sponsor of this bill and for the valuable overview of the topic and the bill she has given us.

My goal today will be to provide insights that I hope will be helpful as we continue to study this bill, especially when it comes to the Standing Committee on Social Affairs, Science and Technology.

Honourable colleagues, you will know that Canada is the only country in the world with universal health care that does not include coverage for prescription drugs. Senator Pate highlighted the ways in which pharmaceutical products have become a necessary part of health care. Yet, we have not evolved medicare to respond to the need to ensure that Canadians have the drugs they need.

Access to drugs that are effective is not a “nice-to-have.” Colleagues, let’s be clear: We should consider this a human right.

In Canada, a patchwork system has evolved through hundreds of thousands of private insurance plans and public plans over the past many decades. Insurance companies, industry and others will tell you that 97% of Canadians are covered by insurance plans. I would urge you, colleagues, to view those numbers with much skepticism.

The truth is that one in five Canadians is effectively uninsured, and there are a number of reasons why. Although some may have some insurance, the copays they are required to pay limit their access; the coverage they have is insufficient for a full year of prescriptions; or, as we heard is the case with contraceptives, drug coverage is impacted by a parent or other family member. This leads to cost-related non-adherence — or, to put it differently, the inability to take the drugs you need because you can’t afford to do so.

No Canadian should be faced with this challenge. No Canadian should have to choose between taking medicine for their heart disease and buying groceries for their family. The fact that millions of Canadians do face this challenge tells us that our large patchwork of private and public schemes is failing us.

Not only does this patchwork fail to provide access to drugs for many Canadians, it also provides inadequate access for those who do have some form of coverage. For example, someone in a management position will have better coverage than someone on the factory floor because, in our current setting, prescription drug coverage is sometimes treated as an employee benefit, rather than the provision of access to vital drugs.

Frankly, colleagues, the system that we have today is not meeting the needs of Canadians. All Canadians should have access to the drugs they need.

This patchwork system is not only failing to provide access to some and providing unequal access for others; it has also resulted in Canada spending far more on drugs than we should have to.

Colleagues, it may surprise you to learn that we spend more on drugs than countries like Australia, the United Kingdom and the Netherlands. In fact, according to the Canadian Institute for Health Information, or CIHI, drugs are the second most expensive part of our health care system, after hospitals. In 2023, almost 14% of health spending in Canada was on drugs. Public drug systems spent a total of $17.2 billion in 2022.

Why is this? A primary reason is that public-private mixed systems like those we see in the United States, Germany and Switzerland cost more.

Another reason is that insurance companies negotiate confidential reimbursements with manufacturers to recuperate funds when drugs are expensive, effectively de-incentivizing them from negotiating lower prices. Whatever the reason, it is clear that we are spending too much on the drugs that we can access, while many Canadians continue to have little or uneven access to the drugs they need.

Colleagues, the reality as I have described it has been the status quo in Canada for many years. How do we move forward from these issues and build a system where every Canadian can access the drugs they need?

I would refer to the first recommendation of the Hoskins report, which states:

The council recommends the federal government work with provincial and territorial governments to establish a universal, single-payer, public system of prescription drug coverage in Canada.

The council proposes the five fundamental principles of medicare, embodied in the Canada Health Act, be applied to national pharmacare

Honourable senators, with Bill C-64, Canada is taking a step toward what the Hoskins report proposed. Nevertheless, I want to be clear that we should not proceed down the road of strengthening the patchwork model, as some have proposed. This would only lead to poorer and more uneven access at higher costs for Canadians. In fact, public systems stepping in to cover the cracks and pay for more expensive drugs amounts to expecting the public to take on a greater financial burden while private insurers continue to draw profits. Why should Canadians accept this approach?

I wish to draw from the example of the U.K. There, outpatient prescriptions come with a copay of about US$13, while hospital prescriptions are entirely free. There are also mechanisms to keep costs low for those who have a heavy burden of prescription, and many don’t have to pay at all, such as children, seniors and those with disabilities.

This system is a strong example of a universal, single-payer, publicly administered system and provides much greater overall value. In fact, in 2021, the U.K. system spent US$517 per capita, while the Canadian system spent US$865 per capita. This example demonstrates that including national pharmacare as part of our health care system can provide access to medicines while lowering overall costs.

Colleagues, this brings us to Bill C-64. In some senses, it is an underwhelming bill that leaves us with questions.

I would describe Bill C-64 as effectively doing several things. First, it provides the guidelines to build a national pharmacare system. This includes, for example, important conditions such as working with provinces, territories and Indigenous peoples; and considering principles such as accessibility, affordability and appropriate use. It also gives the minister authority to enter into agreements for “. . . related products intended for contraception or the treatment of diabetes . . .” and the responsibility to consult with the Canadian Drug Agency.

The minister is given many responsibilities in this bill, but it should be noted that the minister does not have to wait for the mandate given to him by Bill C-64 to begin discussions with key parties.

Second, Bill C-64 lays out certain key principles for pharmacare — namely, that it should be a universal, single-payer, first-dollar program.

Finally, Bill C-64 puts forward contraceptives and diabetes-related medication as the pilot project for pharmacare, the first items of what should become an expanding formulary.

Colleagues, this is promising in some respects, but I have many hesitations about whether this bill truly puts us on the road toward universal pharmacare.

The first is the significant ambiguity in the bill. It is not immediately clear whether Bill C-64 will lead to a truly single-payer, publicly administered system or simply fill in the gaps so that “universal access” becomes an umbrella term incorporating both public and private plans.

The Parliamentary Budget Officer, in his March review of the bill, stated that:

The new program will cover 100% of the expense on diabetes and contraception medication for those who currently do not have public or private drug plan coverage and for those who currently do not fill their prescriptions due to cost related reasons. The latter group is assumed to be 14% of total prescriptions. The program will also cover the out-of-pocket portion of prescription costs for those who have public or private drug plan coverage.

Is this the case? Is the plan to fill in gaps or to provide universal coverage to all, regardless of whether they have an existing private plan?

The technical briefing held last week with government officials raised even more questions for me. It is not clear whether or not the government plans to bring in the needed overhaul, versus simply expanding what the provinces are already doing. The briefing has led me to question whether the government is, in fact, committed to a specific direction or whether it may choose to change course and apply different principles sometime down the road. This, for me, is very concerning. I look forward to asking the minister and his officials more questions at committee.

Building on this ambiguity, I would question the government’s commitment to public administration of pharmacare. Colleagues, I cannot overemphasize that public administration of pharmacare is an essential principle and is key to ensuring access to drugs for all Canadians.

Private insurers are not incentivized to work toward lower costs, minimize administrative fees or challenge manufacturers on the cost-effectiveness of drugs in the same way that public plans do.

To be clear, this is not to demonize private insurers by any means, but it is to highlight that as businesses, their interests are markedly different than the public’s interests.

Having said this, I strongly urge us to ensure public administration is and remains a keystone of pharmacare.

Honourable colleagues, I support universal pharmacare and the intentions of Bill C-64. I believe this bill should become law, but we have important work to do to make sure that the bill is as strong and as clear as it can be so that universal pharmacare can become reality.

I look forward to seeing this bill before the Social Affairs Committee, and I welcome senators interested in this bill who are not on the committee to join us so that together we can strengthen this bill for all Canadians. Thank you, meegwetch.

Hon. Fabian Manning: Would Senator Moodie take a question?

I want to thank both Senator Osler and Senator Moodie for their speeches. I won’t pretend for a moment to have the experience that both of you have in health care, but I am always concerned about the delivery of health care and the announcement of plans, the announcement of programs. And I’ll talk about the dental program for one moment. I have had a half dozen calls to my office in the last month from seniors who cannot participate in the program for lack of insurance or even from some who have some insurance, but that it is not covered by their insurance, and now we’re talking about a pharmacare program.

I want to know if you feel confident that Bill C-64 will give to vulnerable Canadians — seniors in many cases — the opportunity to participate in the pharmacare program because it sounds wonderful at the outset sometimes, but the reality of what happens down the line is concerning for me. I just want to know what you think about that. Thanks.

The Hon. the Speaker: Thank you. The time for debate has expired.

(On motion of Senator Martin, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Bellemare, seconded by the Honourable Senator Dalphond, for the third reading of Bill S-244, An Act to amend the Department of Employment and Social Development Act and the Employment Insurance Act (Employment Insurance Council), as amended.

Hon. Jim Quinn moved third reading of Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada, as amended.

He said: Honourable senators, I rise today to begin third reading of Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.

First, I want to thank the many witnesses and my colleagues on the Transport and Communications Committee. Their input and questions led to amendments that I proposed and that our committee chair reported upon last week. I believe that those amendments are responsive to that input and make the bill that much stronger.

However, before I start to discuss the riveting aspects of the Constitution or to provide comments on Senator Cotter’s statement at second reading that the Chignecto Isthmus is one of the hardest words in the English language to pronounce — and, I will also add, to spell — I want to tell you a story about what this bill really is and what it isn’t.

This bill is not directly about money. The Constitution limits our ability as senators in introducing money bills. This bill is really about fairness and understanding. It is about representing a regional issue that might not otherwise make its way into our parliamentary system. It is about doing our jobs as each of us represents a region of Canada, with the vast majority of us doing so as independent senators — something the Fathers of Confederation might be surprised by as our institution continues down the path of modernization.

These are simple concepts that I cannot believe I have the privilege of standing before you today to highlight, as they are of fundamental importance.

Colleagues, to be frank with you, I am humbled by the fact that I stand before you in the Senate of Canada. Admittedly, if it were not for a twist of fate resulting from an accident while serving aboard a Canadian Coast Guard vessel as a 21-year-old fellow, I might not be here — please hold your applause. The accident changed everything for me. It presented that fork-in-the-road scenario, except the fork had a sign that pointed in a direction I knew would eventually be followed, steering me away from my life’s goal of becoming a harbour pilot in my hometown of Saint John, New Brunswick, just like my dad, uncle and generations before me. My life’s plan — probably like most of my honourable colleagues with whom I have the pleasure of serving today — would be led to believe that I am not supposed to be here.

I grew up in an impoverished area of Saint John, on the shores of our port. I know what it means to come from not only a region that has fewer opportunities but from a family that should have had limited opportunities in life. My siblings and I were fortunate to have parents who steered us in directions that included hard work, decency, compassion and, notably, education. Our mother had a firm hand on the tiller of our lives’ journeys, ensuring as best as she could that we steered clear from trouble. Believe me, in my case, I look back and recognize she had to have both her hands on the tiller of my life.

All of us worked hard because we understood that we wanted to be the best we could be, and higher education required the resources to dare dream of going to the University of New Brunswick, St. Francis Xavier University, Dalhousie University or nursing school. I have five sisters and a brother — three doctors and three nurses — and then there was me.

I started my post-secondary education in Dalhousie’s pre-med stream, and, while finishing that path, I knew I was destined to go out to the sea. What I mean by that is not my former role as the CEO of Port Saint John, but, simply, I was destined to be a sailor, sailing ships out of Saint John to other ports of call in Atlantic Canada, the western hemisphere and, indeed, around the world.

I share this story with you because, while not unique for families across this great nation, it does symbolize — for me — that we Maritimers have to work harder to be seen and heard.

The strategic location of the Chignecto Isthmus is well known to sailors. In fact, one of the first debates in this very chamber in 1867 was about the creation of a canal between the Bay of Fundy and the Northumberland Strait to reduce shipping times. As New Brunswick Senator Frank Black said in 1929, the Chignecto canal project was the oldest canal project in North America. The first road ever constructed in North America was in this area. As far back as 1686, a canal across the Chignecto Isthmus was recommended by the French government.

In 1868, the Government of Canada inquired about building a canal along the isthmus, and it recommended that the canal was of vital importance to the development of intercolonial trade in the country. In 1870, the federal commission stated, “Inseparably connected with the growth of intercolonial trade is the construction of the Baie Verte Canal.”

Today, it is known as the Chignecto canal.

The federal commission continued:

The advantages that must accrue, not merely to the Dominion as a whole, but to the commerce of the Maritime Provinces, are so clearly pointed out by the Boards of Trade of all the leading cities of Canada. Such a canal would reduce the shipping route between Montreal and Saint John by 500 miles. Clearly the area is of national importance.

We often think of the Intercolonial Railway as being the linchpin of why the Maritime provinces joined Confederation. It is the same rail that goes through the Chignecto Isthmus today, which is protected by a series of dikes and aboiteaux constructed by the Acadians in the 1600s to control the world’s highest tides, create farmland and protect people and communities.

However, during the Confederation debates at the Quebec Conference in 1864, the delegates of New Brunswick and Nova Scotia stressed the importance of this canal being built as a condition of Confederation. Unfortunately, senators, due to financial depression and the waning influence of the Maritimes, this canal was not built. Parliament did pass a project to create a Chignecto ship railway to transport ships across the isthmus, and they used the declaratory power. Sadly, that, too, was never completed.

Colleagues, as a sailor in my youth, I can attest to why the Chignecto Isthmus is of national importance, and, had a canal been built, it would have transformed the economy of the Maritimes. Instead, we have the Intercolonial Railway — in its present form, it’s the main CN line — as well as the Trans-Canada Highway linking Canada to Nova Scotia and the Port of Halifax through New Brunswick.

Senators, a freak accident resulted in my taking that fork I mentioned earlier, and, to paraphrase Stan Rogers, I ended up in a situation where “I’ll go to sea no more.” It meant that I was now fated for desk jobs, and I joined the offices of the Canadian Coast Guard in Ottawa. There, I first became acquainted with a situation that any one of my colleagues from Atlantic Canada can relate to: Does Ottawa truly understand Eastern Canada?

Now consigned to desk jobs, this basic question of understanding stuck with me. It led to me coming to Ottawa with the goal of rising through the ranks of the public service, but in a way where I never forgot my roots, and where I could help my colleagues from Ottawa understand the Maritimes and ensure that decisions are made in a fair and equitable way.

Colleagues, why are the simple ideas of fairness and understanding so hard to implement such that we — Maritimers and Newfoundlanders — have to raise our voices in order to be heard? It seems that at almost every opportunity, the federal government turns a blind eye to the struggles of the East, or presents mountains to climb in the hope that we will be heard and supported.

I have a basic premise where, since Confederation, the influence of the Maritimes has been in decline from the most important thing that motivates a government: seats in the House of Commons. More seats means that a region’s concerns are more easily understood, and, with that, it creates an implicit understanding of fairness for the region.

Senators, the Maritimes is the only region in Canada that has significantly lost seats since Confederation. In 1867, Nova Scotia and New Brunswick had 19 and 15 seats respectively. By 1872, this grew to 21 and 16 seats before decreasing to the 11 and 10 seats we have today.

Prince Edward Island, by contrast, initially declined joining Confederation in part due to concerns of its influence being impacted by the larger provinces. The 1873 terms of union between the Dominion of Canada and Prince Edward Island included the promise of two members of Parliament for the three counties of the province. What this means, senators, is that in 1873, P.E.I. had six members of Parliament. However, by 1913, the Island was reduced to three MPs.

Again, I stress that the Maritimes went from 43 seats in 1873 to 25 MPs today.

This inequity resulted in an amendment to the Constitution known as the Senate floor rule, where no province can have fewer MPs than senators, which is why Prince Edward Island has 4 MPs and New Brunswick only has 10 MPs today.

Colleagues, recall the words “fairness and understanding.” At the time of the proposal to introduce the Senate floor rule, both Prime Minister Sir Robert Borden and opposition leader Sir Wilfrid Laurier called it a fair compromise. Yet, history isn’t that simple, colleagues. It was the view of my colleagues from Prince Edward Island that the province was entitled to six seats. Senator Benjamin Prowse from Prince Edward Island expressed this frustration of declining influence on debate of the senatorial floor clause.

He said:

I speak for the Government of Prince Edward Island and the people that I represent when I say that we do not now accept and will not accept in this settlement our claim for representation in Prince Edward Island. Our forefathers, the Fathers of Confederation, fought for six long years on the one contention that we should have six representatives, until the Dominion of Canada came to the little island with the white flag and conceded those six members. The Government today have acknowledged our claim by allowing us four, and we are only entitled to three. We do not come up here as serfs from the little province on the plea of poverty or being a small province. We come here as men to men, equal to any other part of the Dominion of Canada claiming our just rights. We are not asking for any favours; we do not want any favours, but we do demand our rights that were conceded to us at the time of Confederation.

Senators, the current seats in the Maritimes represent a “fair compromise.” However, there is a second clause in the allocation of seats in the House of Commons that is decidedly unfair. The grandfather clause originally stated that no province could have fewer seats than it had in 1986. This was subsequently changed to each province having no fewer seats than in 2019. Thus, other provinces now cannot lose seats, meaning that they will not be in the same position as the Maritimes of having declining influence, and they simply have more voices at the table.

Would the “fair compromise” have been truly fair if Maritimers had known that, in the future, other regions would not have their seats reduced?

Senators, I raise this issue of electoral demographics to indicate that the Maritimes must continually and loudly advocate for things that are taken for granted in other provinces. As I said, as individuals and as a region, we simply have to work harder to be heard.

I will outline the broad support this bill has from Atlantic Canada, which also underscores the importance of this Senate public bill being passed in this chamber so that it can be sent to the elected chamber for their consideration.

This takes me to the heart of Bill S-273. Senator Clement and Senator Dasko said it best in committee: This bill and the related court reference are representative of a breakdown and failure of negotiations between the Province of New Brunswick, the Province of Nova Scotia and the Government of Canada. This bill does several different things — including invoking the declaratory power — but it is also a political means that we have to indicate to the members of the House of Commons and the government that there needs to be a change from the status quo, and this could help restart negotiations.

Colleagues, one of the things that was taken away from our deliberations in committee — and became public — was the insistence by my premier in New Brunswick that he wanted 100% of this project to be paid for. What we’re doing today by looking at this declaratory power does not require the government to pay 100%. It requires them to do nothing, if they choose. Today, the deal is that there are 50-cent dollars that are at the limit of the Treasury Board’s authority for the Disaster Mitigation and Adaptation Fund.

I’m talking about determining how we restart negotiations and have fairness, as we have seen through the recent billion-dollar funding announcement for the Quebec Bridge, which is presently under federal jurisdiction via the declaratory power. This brings to mind that Canada is committing to paying 60% of the costs — not 50% — with CN Railway providing 15% and the Province of Quebec paying the remaining 25%. There is room for negotiations to continue. The fact that the federal government is asking private sector users of the Quebec Bridge to contribute shows that there can be creative means to limit the expenditures of both levels of government while ensuring those private entities that have a direct stake in the use of a critical transportation corridor pay as well. However, that’s not for me to negotiate, but for the federal government to consider should the declaratory power be invoked by Parliament.

The declaratory power places the Chignecto Isthmus Dykeland System under federal jurisdiction, which means that it is different from a programming status than other pieces of critical infrastructure. It would be no different than the Gordie Howe Bridge or the Champlain Bridge. My point is that the declaratory power shows that the scale of the $650-million Chignecto Isthmus Dykeland System project does not fit the scope of the federal Disaster Mitigation and Adaptation Fund, where large-scale projects start at $20 million and projects like the isthmus can only be negotiated, as I said, at 50-cent dollars because that is the Treasury Board’s authority under that program for projects such as the isthmus.

Again, per the 1886 example of the use of the declaratory power to build dikes in Montreal, the use of the declaratory power does not compel the Government of Canada to fund a project. However, it is useful as a starting point for negotiations.

Colleagues, some may have concerns as to whether the declaratory power is the appropriate tool in this circumstance. It absolutely is.

I reject the view that the dikeland system can be considered exclusively one continuous work that extends beyond a single province. Maritimers like to help each other, and the fact that New Brunswick and Nova Scotia are cooperating in developing an integrated series of dikes to protect the entire area is a testament to interprovincial cooperation. However, there is no legal obligation for the Province of New Brunswick, for example, to do so. They could easily repair the dikes on the New Brunswick side of the interprovincial boundary on the Musquash River — which divides Nova Scotia and New Brunswick, in the way of the isthmus — and lead Nova Scotia to flood. The provinces cooperate because they understand the importance of not being so provincial in perspective, and that this project is in the national interest given the critical nature of the transportation and communications infrastructure and the essential elements of protecting unique farmlands and ecosystems. Just as importantly, it is the significant heritage and cultural area for our Mi’kmaq citizens as well as Acadians.

Also, the declaratory power applies to the Gordie Howe Bridge, which connects to Michigan and is therefore not wholly within the province of Ontario. This does not invalidate its use.

Yes, honourable senators, there is a reference before the Nova Scotia Court of Appeal seeking to answer this question: Is the infrastructure which protects the interprovincial transportation, trade and communication links across the Chignecto Isthmus within the exclusive legislative authority of the Parliament of Canada? That is seeking a judicial determination of the scope of 92(10)(a) of the Constitution Act, 1867. However, that does not preclude us as parliamentarians from taking action using the declaratory power under 92(10)(c).

The courts and witnesses in committee are quite clear that it is for Parliament alone to determine whether a work is for the general advantage of Canada. I would add that if this bill quickly becomes law, then there is no need for a determination by the courts over 92(10)(a). This means that Bill S-273 is a tailor-made solution for the Chignecto Isthmus that will not have unintended jurisdictional impacts that a reference case could. It provides a politically negotiated settlement rather than a judicially imposed determination.

Colleagues, if you are uncomfortable with the use of the declaratory power in general, or even in these specific circumstances, I want you to take comfort in the following: The bill has more support on the East Coast today than Confederation had at the time of Confederation. I do not say this lightly.

The four governments of Prince Edward Island, New Brunswick, Nova Scotia and Newfoundland and Labrador support the bill because of the criticality of protecting the trade route for vital supplies, as well as ensuring access to health care facilities such as the IWK Children’s Hospital and other specialty medical services in Halifax. Both the Nova Scotia and New Brunswick legislative assemblies passed all-party resolutions supporting this bill.

The towns in the isthmus directly impacted by rising sea levels due to climate change, Tantramar and Amherst, also support the bill. The Union of the Municipalities of New Brunswick supports the bill out of a concern — which Senator Robinson raised in committee — that if the dikelands are paid for under the Disaster Mitigation and Adaptation Fund, then there will be no additional money left for infrastructure projects in Atlantic Canada as our allocation will be spent.

The Société de l’Acadie du Nouveau-Brunswick, the Fédération acadienne de la Nouvelle-Écosse and the Société Nationale de l’Acadie support this bill as well because:

. . . it provides a political signal that protecting Acadian cultural and heritage sites is in the national interest, where Senators are undertaking their constitutional role in representing regions and protecting minority language rights . . .

Senator Cormier will speak about this aspect in more detail later today.

Most importantly, colleagues, the First Nations support Bill S-273. I am often asked this question: What is the practical effect of Bill S-273? It uses the declaratory power and also allows for the Government of Canada to enter into contracts to help build, maintain or operate the dikeland system.

Chief of Fort Folly First Nation Rebecca Knockwood said the following in committee about why her community supports Bill S-273:

Considering the significance of this area for the Mi’kmaq, considering that the federal government’s consultation and impact assessment process is more thorough and considering that we cannot afford to wait for the jurisdictional battle to be settled, the Mi’kmaq chiefs in New Brunswick would ask you to support the bill put forward by Senator Quinn. The land should be transferred to federal jurisdiction until this project has been completed. . . .

If the declaratory power is used, it means that the federal government would take the lead in respecting the duty to consult with the affected Mi’kmaq communities and leadership. The declaratory power is essential to this commitment toward reconciliation. Chief Knockwood is correct that the federal government would provide a more through consultation process. Further, because the impacts will occur on both sides of the interprovincial boundary, the federal government is best positioned to ensure proper coordination.

Amendments were made in committee at the request of Nova Scotia organizations representing the Mi’kmaq to address any concerns they had by ensuring that there is a non-derogation clause that respects section 35 of our Constitution concerning Aboriginal treaty rights, using limiting language to reduce the scope of emergency powers during construction and ensure that the Mi’kmaq can participate in the contracting process. Senator Prosper will be moving an amendment to the preamble to further reflect this commitment toward reconciliation.

Honourable senators, Atlantic Canada is speaking with one voice, asking both to be treated fairly and for you to understand that the Chignecto Isthmus is to the general advantage of Canada. We often look at the Senate as a place of sober second thought in our role as a revising chamber. However, the constitutionally entrenched role of the Senate to represent regional interests is even more important. The House of Commons will make the determination of whether they agree with us, but our unique design gives us the ability to introduce Senate public bills and allows us to raise issues that simply cannot be heard or understood at first glance by the House of Commons. The Maritimes have only 25 MPs, and as I said, this makes it more difficult for us to be understood.

Honourable senators, crucially, jurisdiction also confers a moral responsibility to act. Rising sea levels due to climate change are the most existential threat to Atlantic Canada. The same oceans that provide for our prosperity threaten to tear us apart.

The United Nations said that the Chignecto Isthmus is the second-most-threatened area in North America due to climate change, after the city of New Orleans.

The Government of Canada has a duty to keep this country together. The Maritimes are not junior partners in Confederation and deserve to be understood and to be treated fairly. The only way for the Senate to make this clear to the House of Commons is to vote yes for Bill S-273 and allow them to have their deliberations and make the final decision.

Thank you so much, honourable colleagues. I hope for and look forward to your support.

Hon. Colin Deacon: Would Senator Quinn take a question?

Senator Quinn: Yes.

Senator C. Deacon: I understand that over the 100 years leading up to 1990, ocean sea levels rose by about 10 centimetres, but since 1990, the rate has about tripled, so it’s another 10 centimetres. That means the 400-year-old Acadian dikes are seeing more change, more rapidly, than before. Do you have data that speaks to that more eloquently than I can, to the urgency?

Senator Quinn: We heard evidence at committee where exactly that type of situation was described, and the numbers are, of course, in our transcripts. But sea-level rise is increasing faster and faster every year. I can say that with some certainty because when I started at Port Saint John in 2010, we had docks on the west side of our port that were dry. When I left in 2021, those docks were regularly covered with water. That’s attributable directly to the sea level rise that I personally saw as the CEO of Port Saint John.

Senator C. Deacon: That causes me to recall a daughter of Saint John Catherine McKinnon, who made a Nova Scotian ballad quite famous in the 1960s. It causes me to think: If we don’t act on this, will the rest of Canada be saying, “Farewell to Nova Scotia”?

Senator Quinn: I certainly won’t attempt to sing that song here, but I will say that I have been asked about this. Here I am, a senator from southern New Brunswick, from the city of Saint John — the south end of Saint John. As young lads, Senator Cormier and I used to play street hockey together down in Saint John. It is a fond memory we both share.

The reality is that as a former CEO of Port Saint John, I could say that Nova Scotia’s becoming an island might be to the advantage of my former port because they would get residual business. There’s no question about that. But as I’ve said to people who asked me why I am taking this on, it’s because I’m a senator in the Senate of Canada. I have to raise my level of understanding and vision to my region and to Canada and what’s important to Canada.

That’s why I’ve been championing this particular initiative. This area is so vitally important to our transportation system but also to the protection of the Trans-Canada Highway, the rail line that runs through there, the farmlands that have been established and, as importantly, to the people of the area, who know that their cities of Amherst and Sackville will be flooded — one at 35%, and one at 50-60%. We heard that in committee. That could lead to loss of life. It will lead to loss of property.

I am fully committed to doing my best in my job to represent this regional issue because otherwise it might not be heard. That’s why I talk so passionately about getting this through the Senate. We’re the Senate; we’re not the elected chamber. If my colleagues here decide to pass this, the bill goes to the elected chamber. Let them have their debate. Let them decide whether this will go to the next step.

If it goes to the next step, it goes to cabinet. If cabinet decides to do something, they have that choice. They can decide to do nothing. They can decide to leave it where it is now, where negotiations have maxed out in terms of the money, the 50-cent dollars.

Again, I’m urging that we pass this bill so it gives a chance for additional negotiations. I don’t expect that we will get 100-cent dollars. That’s not what this is about. This is about fairness. This is about equity. This is about being treated fairly.

Two or three weeks ago, we heard about a well-deserving project being funded at 60% by the federal government. You have heard me speak about other projects that have been funded at 100%. I’m just looking for at least the fairness of what we witnessed at the 60% level. But that’s not my decision. It’s not the decision of parliamentarians. It will become the decision of our cabinet should they choose to go in that direction.

I say let’s give them the chance in the lower chamber to have their debate. If it goes to the government, the government will decide.

Hon. Marc Gold (Government Representative in the Senate): Honourable senators, I rise today to speak very briefly on Bill S-273, the Chignecto Isthmus Dykeland System act. As we know, this bill proposes to declare the Chignecto Isthmus Dykeland System and related works to be works for the general advantage of Canada. It would invoke the federal declaratory power under section 92(10)(c) of the Constitution Act to enable the federal government to assert its exclusive legislative authority over this project.

Let me begin by thanking Senator Quinn for bringing this initiative forward and, more importantly, for shedding light on an area of the country that is important to Atlantic Canada. Its extensive transportation systems and parklands are important for economic growth and vitality in the region and for wildlife preservation and maintenance. This is deserving of greater understanding and, indeed, dialogue.

However, respectfully, the government does not believe that the mechanism being sought in Bill S-273 is the appropriate measure, and it cannot support this bill for several reasons, some of which I’d simply like to put on the record today.

Senator Quinn mentioned correctly that the invocation of the declaratory power would bestow legislative authority over the area but does not in and of itself carry a funding requirement. That is correct, but money is relevant to the bill and to the project and the need for remediation. The government is aware that the project will be an expensive one and that the provinces are hoping that the government will be forced, morally or otherwise, to assume the full cost of the work to be done.

Colleagues, as you know, Senator Quinn mentioned that both New Brunswick and Nova Scotia have applied for funding under the Disaster Mitigation and Adaptation Fund, a program under Infrastructure Canada. This is a collaborative cost-sharing approach. It would enable the federal government to work with the provinces to find a middle ground, a common ground, for dealing with the financial components of this project.

I know their discussions have begun, and the federal government would be pleased to continue them.

Most importantly, and Senator Quinn alluded to it, the issue of jurisdiction over the isthmus is currently before the Nova Scotia Court of Appeal on a reference that was put to the court by the Government of Nova Scotia in July 2023.

The Government of Canada, along with a few other provinces, applied for and was granted intervenor status in this matter. It respectfully disagrees with Nova Scotia’s position that legislative jurisdiction over the isthmus already rests with the federal government.

As such, it’s the position of the Government of Canada that this issue should not be dealt with until the court has clarified the issue of jurisdiction. To do otherwise is to pre-empt the question that’s currently before the Nova Scotia Court of Appeal.

Finally, colleagues, Bill S-273 would also likely impose new obligations on the government, and this could have the unintended consequence of setting a new precedent that would affect or could affect similar land systems in the future, including those that may be affected by climate change and require remediation.

For those reasons, the government cannot support Bill S-273 in its present form. The government believes the Nova Scotia Court of Appeal should hear arguments from all parties and intervenors and pronounce with an informed and adjudicated decision on that basis.

Thank you for your kind attention.

Hon. Leo Housakos: Senator Gold, I listened to your remarks. I don’t want to get involved in debate on this, but, number one, the declaratory powers have been used many times before in very similar instances, so it is constitutional. At our committee, we heard from a number of constitutional experts, and all of them said it’s constitutional.

I have seen this game plan before from governments. I saw it from the previous government when they were trying to renege on fundamental responsibilities in terms of the Samuel De Champlain Bridge, because it was politically expedient, for a variety of reasons, not to invest in it and to try to push that off to the Quebec government.

The first question: Won’t you agree that the declaratory power has been used many times?

Second, the Province of Quebec didn’t have the wherewithal to rebuild the Samuel De Champlain Bridge, and it would be nearly impossible for any province. It required billions of dollars. Just like right now in Atlantic Canada, with regard to critical infrastructure like the Chignecto Isthmus — and we have heard from many witnesses that it touches a number of provinces, the whole region of Atlantic Canada — they don’t have the wherewithal to go forward with a project like this. Why doesn’t the government recognize that if we, as a federal government, don’t step up on infrastructure building, what do we need the federal government for in this country?

Hon. David Richards: Will you take a question, please?

The Hon. the Speaker: Do you have a question, Senator Richards?

The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-20, An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments.

(Bill read first time.)

[Translation]

The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?

(On motion of Senator Gold, bill placed on the Orders of the Day for second reading two days hence.)

On the Order:

Resuming debate on the motion of the Honourable Senator Quinn, seconded by the Honourable Senator Dagenais, for the third reading of Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada, as amended.

Hon. Julie Miville-Dechêne: Honourable senators, I’m speaking at third reading of Bill S-273, which was introduced by the Honourable Senator Quinn. Although I seriously doubted the bill’s value initially, I chose to support this initiative at committee.

The bill would declare the Chignecto Isthmus Dykeland System to be for the general advantage of Canada, thereby invoking the federal government’s declaratory power as set out in the Constitution Act, 1867.

We invited not one, not two, but three leading experts in constitutional law to the Transport Committee so we could draw on the broadest possible expertise. Professors O’Byrne, Leach and MacFarlane appeared before the committee, and all of them said it was entirely possible and in accordance with the rules to invoke the declaratory power to bring the Chignecto Isthmus system under federal law. Only one of the witnesses, Andrew Leach, considered such a designation unnecessary, as he felt that the isthmus is already under federal jurisdiction, given that it spans two provinces, New Brunswick and Nova Scotia.

Everyone agreed on three other points. First, declaring works to be for the general advantage of Canada achieves only one thing: It subjects them to federal legislation. Second, under no circumstances does the assertion of this declaratory power require the federal government to spend any money at all on the work in question. Third, the fact that an appeal has been brought before the Nova Scotia Court of Appeal to place the Chignecto Isthmus under federal jurisdiction in no way prevents parliamentarians from passing legislation. In short, there’s no substantive constitutional or legal obstacle to this bill. The debate essentially revolves around politics, and each senator is therefore at liberty to take a position.

As I see it, this bill is purely political. By invoking the declaratory power in Bill S-273, Senator Quinn is trying to put more pressure on the federal government to be more generous in funding the isthmus dikeland rehabilitation and pay more than 50% of the cost. The fact that this bill has received the blessing of the premiers of New Brunswick and Nova Scotia makes it all the more political. I confess that I feel a little uncomfortable about getting so directly involved in a dispute between the federal government and the provinces.

Once again, Professor Macfarlane considers it outside the scope of our role as legislators. In this regard, he said, and I quote:

There are no distinct limitations on the various purposes a piece of legislation may have. Parliament is free to use legislation to hold government to account, to impose direct obligations on it, and I see no reason why legislation could not be used to impose an element of symbolic obligations or political obligations through legal instruments.

This declaratory power was used nearly 500 times since Confederation, as Senator Gold mentioned. Professor Nicole O’Byrne, from the University of New Brunswick, also indicated that, when Parliament invokes this power, it’s an entirely political decision that’s not reviewable by the courts. However, Professor O’Byrne also reminded us of the origins of the Confederation pact and its context. The construction of a railway connecting Halifax to Quebec was a condition for Confederation for the provinces of Nova Scotia and New Brunswick. This rail line, vital to the Maritimes’ supply chain, crosses the Chignecto Isthmus which is being threatened by climate change. Professor O’Byrne added that, historically, the federal government has paid for most of the infrastructure work when the provinces were unable to do so.

Furthermore, the bill wasn’t considered in a vacuum. In the middle of the committee’s study, Prime Minister Trudeau announced to great fanfare that the federal government was going to repatriate the Quebec Bridge and pay the full cost of its rehabilitation, to the tune of $40 million per year for the next 25 years. The bridge, he said, is critical infrastructure for the St. Lawrence River corridor. There’s no doubt about that.

The next day, the Prime Minister went to Bathurst and met with local journalists who asked him why the federal government was funding 100% of the Quebec Bridge rehabilitation, but no more than 50% of the Chignecto Isthmus renovation work. The Prime Minister’s answer surprised me. He said, and I quote:

It is a vital link, but it is also a provincial highway. . . . We will be there as a partner, but perhaps it would be better if the governments of Nova Scotia and New Brunswick took the fight against climate change more seriously. . . . Unfortunately, they are doing what too many Conservative politicians are doing, and that is looking for easy arguments so as not to have to make the necessary investments that their citizens need, investments that are their responsibility to make.

My jaw dropped when I heard that. Are we to understand that the federal government’s decision to pay for the renovation of critical infrastructure depends on the provincial government’s political stripe?

Are we back to the Duplessis days when we had to vote for the right party to get funding for our roads?

To me, it is clear that the Chignecto Isthmus straddles two provinces, that it has a rail line, that its history is closely connected to the Confederation pact and that it is as much in the general advantage of Canada than the old Quebec Bridge, if not more so.

As a Quebec senator who believes in fairness among the provinces, I wasn’t happy with that differential treatment. I will therefore be voting in favour of Bill S-273 for all of the reasons that I mentioned.

Thank you.

Hon. Réjean Aucoin: Honourable senators, I’d like to begin by saying that I agree with Senator Quinn’s comments. In addition, according to an article I read today about the Thwaites Glacier in Antarctica, although it was expected to melt in the next 100 or 150 years, experts believe it will melt faster than initially predicted. The sea flows 3.7 kilometres beneath the glacier, contributing to the 3.7-metre annual rise in sea level. The world is already losing 50 billion tonnes of ice annually, equivalent to a 4% rise in sea levels. The study was published this week.

Honourable senators, I’d like to take this opportunity to share my thoughts on the very important Bill S-273, sponsored by our colleague, Senator Quinn.

I consider it essential to rise today to discuss the vital importance of preserving the Chignecto Isthmus dikeland, and to recognize the central role this isthmus plays in Canada’s economy.

The Chignecto Isthmus is the name of the stretch of land connecting New Brunswick and Nova Scotia. It is slightly above sea level. It includes a network of dikes and aboiteaux, installed in the late 1600s by the Acadians, perhaps some of my ancestors. It currently protects the isthmus’ communities, infrastructure, private lands and natural resources.

The Chignecto dikes, with their rich history and crucial function, are much more than mere structures of concrete and earth. They are an infrastructure that protects an essential link between Nova Scotia and the rest of the North American continent, a link that should never be underestimated or neglected.

First of all, understanding the economic importance of the Chignecto Isthmus to Canada is key. This land and sea corridor is a major trade and freight corridor. The Trans-Canada Highway and CN rail line cross the Chignecto Isthmus, providing road and rail links across which some $35 billion worth of goods, commodities and services flow every year.

These goods and commodities travel in both directions. They go from Newfoundland and Nova Scotia to the West, but the goods and commodities found in New Brunswick, Quebec and Ontario come from as far away as British Columbia. In addition, this strip of land is home to wind turbines and major power and telecommunications lines.

Every day, thousands of trucks haul goods essential to Canadians across the Chignecto Isthmus. Food, medical supplies, manufactured products and countless other goods are shipped through this strategic passage to Canadian and even U.S. markets, thereby contributing to the continuous supply of goods to cities and regions across the country. These goods play a vital role in Canada’s economy. They support a wide range of industries from coast to coast to coast and create jobs in multiple sectors.

Considering its strategic position and importance to Canada, we believe that the work required to protect this land bridge from the climate changes we are witnessing is vital. That’s where the Chignecto dikes come into play. These ingenious structures protect the land from floods and storms and, in doing so, ensure safe shipping by land and sea. Without them, roads could be flooded, railways damaged and ports rendered inaccessible, bringing the vital flow of goods across the country to a screeching halt.

Preserving the Chignecto Isthmus dikes is also critical to the environment. Not only do these dikes protect farmland and infrastructure, they also preserve fragile coastal ecosystems. By stabilizing the land and preventing floods, they protect natural habitats and the species that depend on them. In doing so, they help preserve the region’s biodiversity.

Colleagues, it is our duty to preserve and protect the Chignecto Isthmus dikes for future generations. Their importance cannot be overstated. They are the very foundation of our economy and our security, ensuring the continuous flow of essential goods across the country. By investing in their maintenance and development, we are investing in the future of Canada as a whole.

In my view, the Canadian government has a constitutional responsibility to maintain this link, and the federal government’s criteria for funding major transportation links should be the same in all provinces.

Therefore, it goes without saying that the Chignecto Isthmus and the works required to preserve it should be declared to be for the general advantage of Canada. This would enable the provinces to negotiate with a single stakeholder, the federal government. As things stand, if one province completes its part of the necessary repairs but the other does nothing, a storm could seriously damage everything on both sides of the Nova Scotia-New Brunswick border.

In closing, I would urge you all to recognize the vital importance of the Chignecto Isthmus Dykeland System and to support the efforts to preserve it. The Chignecto Isthmus is a strategic land link that is threatened by rising water levels and climate change. By supporting this bill, we can ensure the sustainability of this important economic corridor and guarantee the prosperity of our nation in the years ahead.

Thank you very much.

Hon. René Cormier: Colleagues, I rise today to speak briefly at third reading of 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 this chamber by my New Brunswick colleague, Senator Quinn, whom I thank. Much has been said, so I won’t talk about economic development, the movement of goods and services or the road and rail link, even though I recognize how important these elements are to the region. On these matters, I endorse everything my Acadian colleague, Senator Aucoin, said, and I thank him for his remarks.

I would like to point out that the land on which I am speaking is part of the unceded territory of the Anishinaabe Algonquin people.

In light of the study duly conducted by the Standing Senate Committee on Transport and Communications, which included new facts related to this bill, allow me to clarify why I intend to support it. Let’s not forget that this legislation would make the federal government responsible for the restoration of the Chignecto Isthmus dikes through a declaration by Parliament that these works are for the general advantage of Canada, in accordance with section 92(10)(c) of the Constitution Act, 1867.

I will begin by saying that I am well aware of the comments that my colleague, Senator Clement, made in committee about how this bill could reflect a serious breakdown in negotiations among the different levels of government. Obviously, I think that a collaborative approach is important for any issue that affects Canada as a whole.

[English]

I also read with interest the comments of Mr. Andrew Leach, a Professor in the Faculty of Arts and Faculty of Law at the University of Alberta, who appeared before the Transport Committee and according to whom this bill does not appear to impose any positive obligation for the federal government to maintain, fund or act in any other way to support the system.

One might also question the intrinsic usefulness of such a bill, especially since the dike system could already fall under federal jurisdiction in accordance with paragraph 92(10)(a) of the Constitution Act, 1867.

[Translation]

Nevertheless, honourable senators, I recognize that a large number of key stakeholders in my region are calling for this legislative proposal. As it has often been said, we were all appointed to the upper chamber to represent our province or territory. The effective representation of regional interests is at the heart of our senatorial mandate and constitutes one of the pillars of this democratic institution.

It goes without saying that, if the legislative assembly of my province, which basically represents the general will of the people of New Brunswick, takes a stand on an issue that directly relates to our parliamentary work, then I think that I need to give that a certain amount of attention and deference.

In that regard, on May 17, a motion was unanimously adopted by the Legislative Assembly of New Brunswick to urge Parliament to pass this bill. The motion in question referred to the fact that the Chignecto Isthmus is a rail trade corridor of national importance and that it is particularly vulnerable to the effects of rising sea levels and increasingly intense severe weather events. All of the political parties in my province, without exception, support this bill. The Nova Scotia Legislature also adopted a similar resolution. In my opinion, this constitutes significant legislative action.

Our senatorial mandate also requires us to represent the interests of minorities and of groups generally under-represented in the other place, including Indigenous peoples and official language minority communities. I think you will agree with me that it is imperative for us to take their interests and needs into account in our public policy development processes.

In May, the Société de l’Acadie du Nouveau-Brunswick, or SANB, in collaboration with the Fédération acadienne de la Nouvelle-Écosse, or FANE, and the Société Nationale de l’Acadie, or SNA, which speaks for the Acadian people nationally and internationally, submitted a brief to the Senate Committee on Transport and Communications. This document offers unwavering support for Bill S-273.

One relevant passage of this brief reads as follows:

The Chignecto Isthmus Dykeland System Act is a major step forward for the preservation, and even more so for the protection, of this historically rich region. This region is also of great public interest, particularly given its nationally and strategically important infrastructure. Section 4 of Bill S-273 is clear on the subject: “The Chignecto Isthmus Dykeland System and related works are declared to be works for the general advantage of Canada.”

[English]

As explicitly indicated by Chief Rebecca Knockwood from the Fort Folly First Nation before the Transport Committee, the Mi’kmaq chiefs of my province also support this legislation. I equally note that the amendments adopted in committee have considered the opinions notably expressed by Jessica Ginsburg, a lawyer on behalf of Kwilmu’kw Maw-Klusuaqn, KMK, which supports the Assembly of Nova Scotia Mi’kmaq Chiefs.

Through testimony and briefs, the Transport Committee also heard from other stakeholders favourable to this legislation, notably the Union of the Municipalities of New Brunswick, which represents 56 municipalities and almost 80% of the population, including communities along the Chignecto Isthmus.

[Translation]

Colleagues, while recognizing the importance of this region for the movement of goods and services and for strengthening the economic development of our region, and given the unique historical and cultural place that the Chignecto Isthmus holds in the collective imagination of the Mi’kmaq and Acadian peoples of this region, Bill S-273 reaffirms that the system of dikes and aboiteaux in the Chignecto Isthmus, which is still of immeasurable economic and heritage importance for the inhabitants of this region, particularly the Acadians and Mi’kmaq, is for the general advantage of Canada.

I fully support this principle, especially since this territory is central to the very identity of the Acadian and Mi’kmaq peoples and the Atlantic provinces. I therefore invite you to vote in favour of this bill. To show you just how important this territory is for the Acadian people in particular, I would also invite you to broaden your horizons to new possibilities for developing this unique territory. For ecological, economic, historical and heritage reasons, the three Acadian organizations I mentioned earlier are proposing the particularly interesting idea of creating a new national park on the Chignecto Isthmus.

In their brief to the Transport Committee, they say this innovative project will have three main benefits, and I quote:

 . . . it would allow the Government of Canada to effectively protect the isthmus against the ravages of climate change through the coordinated participation of multiple departments and agencies, including Public Works and Infrastructure Canada and Parks Canada. It would also allow two heritage institutions—Fort Beauséjour and Fort Lawrence—to be combined on the same site. Lastly, it would preserve and promote the presence and activities of the Mi’kmaq and the Acadians of Beaubassin, including the network of dykes and aboiteaux erected over three centuries ago that continue to protect the isthmus . . . .

Also, as part of its study on the impacts of climate change on critical infrastructure in the transportation and communications sectors, I fervently hope that the Standing Senate Committee on Transport and Communications will give due consideration to this proposal in preparing its future report.

Honourable colleagues, I’ll conclude with an anecdote from my childhood. My father often took us to Nova Scotia via the famous Chignecto Isthmus. I’ll spare you the poetic rant and just say that my father was constantly reminding us how instrumental that particular place was in building our country and uniting the Atlantic provinces. Not to be biased, but he always highlighted the important role that Acadians played in the construction of these dikes, which helped make Canada what it is today, particularly in that region.

I must admit that I’m getting a little emotional over this, but at the same time, for all of the reasons that I gave here today, I would invite you all to vote in favour of this bill. Thank you.

Hon. Paula Simons: Honourable senators, no one should doubt that the Chignecto Isthmus is one of the most vital and most threatened pinch points in Canada. It is one of our nation’s most important and essential transportation corridors, connecting Nova Scotia to the rest of Canada and allowing billions of dollars’ worth of goods landed at the Port of Halifax to flow through Eastern Canada.

How important? How vulnerable? Let me share with you what we heard from one of the witnesses who appeared before the Transport and Communications Committee to speak to this issue, the Mayor of Amherst, Nova Scotia, David Kogon:

A flooded Chignecto Isthmus would disrupt the rail line, the Trans-Canada Highway, the power distribution lines, a natural gas pipeline and the windmills in the area.

He continued:

A significant portion of the town of Amherst, estimated at approximately 25% to 33%, would be flooded if the isthmus of Chignecto were to flood. Specific protection of the dikeland system safeguards the transportation corridor, Amherst and other nearby communities and vast areas of fertile farmland. The areas of land protected by the dikes are below sea level. If this area were to flood, the water would not recede; it would be permanent, with major consequences.

And he assured us this was not a fanciful projection:

There is an increased frequency of major storm events in recent years. Urgency is being placed on this issue due to concern that one of the next severe weather events will coincide with the high tide, which would breach the dikes and flood the isthmus permanently.

When I asked the mayor whether the isthmus was going to be overwhelmed by rising sea levels, he explained to me that the most real and present threat was more the increase in violent storms brought by climate change, which could overwhelm the dikes even at this sea level:

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.

His colleague and neighbour Andrew Black, the Mayor of Tantramar, New Brunswick, spoke equally passionately about the threat. He testified:

The people of Tantramar count themselves lucky for living where we live, and the chocolatey mud flats, the stark flat beauty of the marsh and the teaming biodiversity of those areas have been engrained and interwoven into our history, art, music, culture, educational opportunities, tourism and economy.

But, he said:

. . . there is constant dread that it will all be washed away in one perfect storm. The Chignecto Isthmus . . . is a narrow piece of land that connects New Brunswick to Nova Scotia, stretching from the Bay of Fundy on one side to the Northumberland Strait on the other. Most of that land is well under sea level and it would take little effort to inundate it with floodwater. . . .

. . . we are all aware now after the floods of the past and a quickly changing climate that it is not a matter of “if” but a matter of “when” the isthmus will be under water.

So I do not for one moment question the urgency of this issue nor the vital need for timely action. I want to thank Senator Quinn for putting this issue on the national agenda and for all his work in championing the people who call the isthmus home or who rely upon it for their futures. And I don’t blame him for feeling his region’s concerns are not being heard. Believe me, as an Albertan, a representative of a province of 5 million people which has only six Senate seats, I empathize with that feeling.

But I rise today, nonetheless, to oppose this particular bill — not because I want to let the federal government off the hook but because this bill is not the way to force anyone in Ottawa to do anything at all, and because I do not think we should use the extraordinary declaratory power of the Constitution in a careless or fruitless way.

As former chief justice Sir Lyman Poore Duff wrote in 1929, the declaratory power is an authority of “a most unusual nature” which gives the federal government sweeping power to assume jurisdiction over what would otherwise fall within the exclusive control of a single province.

Section 92 of the Constitution lays out the division of powers — which things are in provincial jurisdiction, and which things are federal. Section 92(10)(c) provides that works and undertakings that:

. . . although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

Now, is the future of the Chignecto Isthmus dike works a matter of national urgency? Absolutely. Would repairing and storm-proofing it be for the general advantage of Canada or for the advantage of two or more provinces? Who could deny it? But let me reread the words of the clause: “. . . although wholly situate within the Province . . . .” And the Chignecto dike works are, well, not wholly situate within one province. They link New Brunswick and Nova Scotia.

Now, there has been an attempt in the bill to imply that this is not true. The bill explicitly defines the Chignecto Isthmus Dykeland System as two distinct things:

(a) a dyke system intended for water management wholly situated in the Nova Scotia portion of the Chignecto Isthmus trade corridor; and

(b) a dyke system intended for water management wholly situated in the New Brunswick portion of the Chignecto Isthmus trade corridor.

Much though I respect and honour Senator Quinn’s commitment to the people of the isthmus, that is not a very convincing argument.

Let me also quote from the testimony of Dr. Andrew Leach from the University of Alberta law school, who is both an authority on the history of the declaratory power and an expert in environmental economics:

Works – “physical things” – and undertakings – “an arrangement under which physical things are used” – can fall within provincial jurisdiction only if they lie wholly within that province. The system of dykes, aboiteaux, and culverts lies on both sides of the border but also, in the case of the Missaguash River water control structure, spans the border. . . . The Dyke System is “functionally integrated.” There is no sense that the systems in New Brunswick and Nova Scotia could operate effectively or be updated independently of the other. . . .

In his written brief submitted to the committee, Dr. Leach cited a 1905 decision by the British Law Lord Edward Macnaghten, who was ruling in a case involving the use of declaratory power in regard to the works of Bell Canada. Macnaghten wrote:

. . . if they had been “wholly situate within the province,” the effect would have been to give exclusive jurisdiction over them to the Parliament of Canada; but, inasmuch as the works and undertakings . . . were not confined within the limits of the province, this part of the declaration seems to be unmeaning.

And that, I fear, is the problem we face here. It is legally meaningless to require the Government of Canada to declare the dikeland system to be to the general advantage of Canada. The works are clearly not situated wholly within one province. Indeed, one could argue, as Dr. Leach did, and as provincial premiers have, that the dikeland system could already fall under federal jurisdiction.

Indeed, Parliament already decided it had jurisdiction when it passed the 1948 Maritime Marshland Rehabilitation Act related specifically to the isthmus. Both New Brunswick and Nova Scotia agreed and cooperated with the federal government in the administration of that act. One could argue that nothing has happened since that would suggest Parliament was wrong then, so it may well have jurisdiction now, despite the decision made in 1970 to turn jurisdiction back to the provinces at their own request. As Senator Gold said, we may have to let the Nova Scotia Court of Appeal figure that out.

But in the meantime, let me be crystal clear. Passing this bill would do absolutely nothing to require the federal government to fix the isthmus or to commit any more federal funds to the project. It might make a symbolic political statement of some sort, but I suggest that it is an inappropriate use to invoke the extraordinary power of section 92(10)(c) as a political ploy, as a mere tactic to shame the federal government into action.

As a matter of parliamentary propriety, we should not pass bills that functionally have no force or effect to do what we want them to do.

I believe the federal government should absolutely step up to fund the lion’s share of this project. The isthmus is too vulnerable and too important to all of Canada to be left to the exclusive financial responsibility of two small provinces. And it is far too important to be snarled up in endless legal disputes. But this bill is not the right tool to fix the problem.

It is a long-standing legal tradition that “Parliament does not speak in vain,” that we do not pass legislation that is superfluous or has no legal meaning or import. And this bill, alas, speaks in vain, at least when it comes to expediting or funding the isthmus project.

At the same time, it could have unintended and negative consequences, because if it came into force, it could create an unintentional legislative vacuum. As Dr. Leach said in his testimony:

As soon as this law were to be proclaimed, any provincial statutes in relation to this dykeland system are invalid from that moment forward. You may end up with a legislative vacuum. I don’t know that there are federal laws planned in this area. I do think that’s one thing to consider, that provincial legislation in relation to the dykeland system would be invalid if this bill were upheld.

His perspective was seconded by another committee witness, lawyer Jessica Ginsburg, a legal advisor to the Mi’kmaq. I asked her:

. . . Do you believe that if this bill were to pass that provincial regulations, environmental regulations and regulations around archaeological excavation would be effectively eliminated?

Her response was:

Of course, that’s the concern, or that if they were eliminated that there wouldn’t be substitute federal decision points in their place. It’s not to say that the decisions have to be made provincially, but the federal government wouldn’t usually regulate in the areas covered off by the provinces currently. That’s the concern — that there would be a gap created.

Today, for the sake of argument, let us suppose that if S-273 were to pass, the federal government would move with extraordinary swiftness to fill the legislative vacuum. Let us, for the sake of argument, accept the idea that passing this bill just to embarrass the government into badly needed action on this file makes good political sense. I want us to consider the consequences of the precedent that we would be setting.

Now I also speak as an Albertan. Imagine that we create a model where the federal government could exert exclusive jurisdiction over any work or undertaking regardless of what the plain text of the Constitution actually says? I think we’d open a Pandora’s box where some future government could potentially seize this example to extend jurisdiction where it might not be so welcome.

In the midst of our own clause-by-clause debate at committee, I argued that Bill S-273 was the wrong tool and that you should not use a rake to hammer a nail. Senator Cardozo had a witty rejoinder. He pointed out, “In an emergency, you could indeed use a rake to hammer a nail.”

Well, you could. You could also hurt yourself quite badly in the process.

Let us try to stick with hammers to drive in our nails lest we run the risk of getting a prong in the eye. Thank you. Hiy hiy.

Some Hon. Senators: Hear, hear.

[English]

Hon. Jim Quinn: Would Senator Simons take a question?

Hon. Paul J. Prosper: Honourable senators, 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.

I want to recognize Senator Quinn for bringing forward this bill, which seeks to preserve an important trade and travel route by using tools available to the federal government.

We all heard Senator Quinn discuss why he feels strongly about the need to use the declaratory powers to bring this project under federal jurisdiction. I agree with him. It is not to absolve the provinces completely of their fiduciary responsibilities regarding the isthmus but to take on the brunt of a causeway project that is truly in the nation’s interest.

I was amazed to learn during the Transport Committee study about regional examples of how climate change is endangering critical infrastructure and that an estimated $100 million cross the isthmus daily.

The implications of what might happen to Canada and its economy should the isthmus become unpassable are staggering. It should be noted that the declaratory power and the notwithstanding clause are exceptional powers that should be used sparingly. However, I would argue that in this instance, it is warranted. This would not, in my opinion, create a precedent that would open the doors to other regions trying to take advantage of this same power for their areas that are susceptible to flooding.

As a lawyer, I would say that the use of this power makes sense in this instance due to the confluence of specific factors such as the economic importance of the region and its importance to specific people such as the Acadian people and the Mi’kmaq who have lived on that land since time immemorial.

As Senator Cormier said — and I’m paraphrasing in English — given the unique historical and cultural place that the Chignecto Isthmus occupies in the collective hearts and minds of the Mi’kmaq and Acadian peoples of this region, Bill S-273 reaffirms the idea that the Chignecto Isthmus dike and aboiteau system, whose economic and cultural importance remains immeasurable for the inhabitants of this region, is in the general interest of Canada.

While the committee’s meetings do occur at the same time as one of the other committees I sit on, I made time to attend committee hearings that are current to my region of Nova Scotia. I was able to attend one of the meetings on this bill where a young lawyer named Jessica Ginsburg was testifying on behalf of Kwilmu’kw Maw-Klusuaqn, or KMK, the organization working on rights implementation and undertaking negotiations on behalf of the Assembly of Nova Scotia Mi’kmaw Chiefs.

Ms. Ginsburg appeared alongside Chief Rebecca Knockwood, who represents Fort Folly First Nation — also known as Amlamgog — on the New Brunswick side of the isthmus; and Derek Simon of Mi’gmawe’l Tplu’taqnn Incorporated, or MTI, which is the New Brunswick equivalent of KMKNO.

Chief Knockwood spoke about the isthmus being a “ . . . significant cultural area for the Mi’kmaq . . . .” and how “ . . . Chignecto . . .” is derived from the Mi’kmaq word “Siknikt,” meaning “the drainage place.”

Chief Knockwood went on to say:

Studies show that it was one of the most densely populated areas of Mi’kma’ki and was a centre for travel and trade. Mi’kmaw, including members of my community, continue to harvest in the area.

She continued, saying:

Today, the isthmus is known to host 44 federal and provincial species at risk as well as over 250 species of conservation concern in Nova Scotia and over 170 in New Brunswick. Many of these species are of particular significance to the Mi’kmaq.

All three witnesses representing the Mi’kmaq in this study were clear that deep and meaningful consultation is important moving forward.

It is the duty and honour of the federal Crown to take this on and ensure there is fulsome consultation.

I want to thank Senator Quinn and Mr. Lyle Skinner, his director of parliamentary affairs, for working so hard to incorporate meaningful amendments that address the concerns raised by the Mi’kmaq.

One amendment that KMKNO asked for, which was perhaps missed, may not have much impact in the operative part of the bill, but it is important nonetheless. It is always important to acknowledge the history of a place in order to recognize its importance to current and future generations.

In that same vein, I agree with KMKNO’s suggestion to amend the preamble to state the historical and cultural importance of the region to Mi’kmaq and, as we heard today from Senator Cormier, Acadian people.

The inclusion of such a statement would ensure that it is understood by anyone reading the bill that there is more to the Chignecto Isthmus than trade. There is hunting, a history and a life that we must protect and preserve.