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.