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. 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. 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.

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.