THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Wednesday, May 1, 2024
The Standing Senate Committee on Transport and Communications met with videoconference this day at 6:49 p.m. [ET] to study Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.
Senator Leo Housakos (Chair) in the chair.
The Chair: Honourable colleagues, welcome. Today, we are looking at Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.
Before we get into the details of our study, I would like to make some remarks on the record that I’ve been asked to share with you. Before we begin, I would like to remind all senators and other meeting participants of the following important preventative measures: To prevent disruption and potentially harmful audio feedback incidents during our meeting that could cause injuries, we remind all in-person participants to keep their earpieces away from all microphones at all times.
As indicated in the communiqué from the Speaker to all senators on Monday, April 29, the following measures have been taken to help prevent audio feedback incidents: All earpieces have been replaced by a model which greatly reduces the probability of audio feedback. The new earpieces are black in colour, whereas the former earpieces were grey. Please only use a black, approved earpiece. By default, all unused earpieces will be unplugged at the start of a meeting. When you are not using your earpiece, please place it face down on the middle of the round sticker that you have in front of you on the table, where indicated. Please consult the card on the table for guidelines to prevent audio feedback. Please ensure that you are seated in a manner that increases the distance between microphones. Participants must only plug-in their earpieces to the microphone console located directly in front of them. These measures are in place so that we can conduct our business without interruption and to protect the health and safety of all participants, including the interpreters.
Let’s try to follow these guidelines, colleagues. I know that we’ve had some very bad incidents of translators having terrible damage to their ears, so please be cognizant of this.
Again, thank you to everyone for being here this evening. We are looking at Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.
On our first panel, we have the pleasure of having our colleague, the Honourable Senator Jim Quinn, sponsor of the bill; and with him is his trusted policy adviser, Lyle Skinner, director of parliamentary affairs. Welcome to both of you.
Before we go to opening statements, I will ask my colleagues to briefly introduce themselves.
Senator Richards: Senator Dave Richards, from New Brunswick.
Senator Cuzner: Senator Cuzner, from Nova Scotia.
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Senator Clement: Bernadette Clement from Ontario.
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Senator Robinson: Mary Robinson, a senator from Prince Edward Island.
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Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
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Senator Cardozo: Andrew Cardozo, from Ontario.
Senator Dasko: Donna Dasko, a senator from Ontario.
The Chair: Thank you, colleagues.
We will start with a five-minute opening statement from Senator Quinn before we go to questions and answers. Senator Quinn, you have the floor.
Hon. Jim Quinn, sponsor of the bill: Thank you, chair and colleagues. I am honoured to be here today to sponsor Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.
I wish to extend my appreciation to the senators who have contributed to the debate at second reading, illuminating why the Chignecto Isthmus and its associated protective infrastructure — the dikes and aboiteaux to mitigate rising sea levels — are of national interest to Canada. This debate underscores a fundamental constitutional role of the Senate: to elevate matters that may seem local or regional but are indeed of national significance. This underscores the importance of senators introducing Senate public bills.
I also thank my colleagues on this committee for agreeing to study the Chignecto Isthmus as part of our study on the impacts of climate change on critical infrastructure in the transportation and communications sectors. The evidence received for that study highlighted how climate change and rising sea levels are an existential threat to the Chignecto Isthmus.
While my name is attached to this bill, it represents the collective aspirations of the four Atlantic provinces. It is a call for the federal government to fulfill its constitutional duties and acknowledge what is apparent to anyone travelling along the Trans-Canada Highway. As Senator Cotter highlighted in his remarks in the chamber, the Chignecto Isthmus serves as a crucial trade and transportation route holding national importance. Bill S-273 serves as a vehicle to advocate that safeguarding the Chignecto Isthmus aligns with the general interest of Canada.
The Maritime provinces, by virtue of their geography, stand at the forefront of Canada’s most pressing existential threat in this century: climate change and rising sea levels. In fact, during our earlier committee work on climate change and its effects on critical infrastructure, we learned that a United Nations study identified North American locations most vulnerable to climate change effects. Colleagues may recall the number one location is New Orleans, and the number two is the Chignecto Isthmus area.
The protection of the Chignecto Isthmus from the aforementioned rising sea levels, as discussed earlier, holds profound implications. The Port of Halifax serves as a vital hub for interprovincial and international trade and commerce. It serves as a primary port for many trade lanes but also offers additional resilience as an alternative port in the face of disruptions that may happen elsewhere in Canada or in the eastern United States, whether such disruptions are natural or man-made. In other words, it serves as an alternate trade route.
While this bill invokes the declaratory power under section 92(10)(c) of the Constitution Act, 1867, transferring complete jurisdiction to the federal government, the legality of this power is clear. It is solely for Parliament, not the courts, to make the decision. However, the question before us is whether Parliament should exercise its power in this instance. I firmly believe the answer is affirmative.
I think it important to point out both the provinces whose jurisdiction would be directly affected agree with Bill S-273 and the use of the declaratory powers. The Nova Scotia House of Assembly has unanimously passed a resolution urging the Parliament of Canada to pass Bill S-273, and Legislative Assembly of New Brunswick has a similar motion I expect to be debated in May. Our discussion with the provinces of Newfoundland and P.E.I. have also shown their support for this bill. Given trade flows to and from eastern Canada to the rest of North America, I have no doubt that there is not a province in this country that would not agree that the Chignecto Isthmus is of national importance.
Furthermore, it is worth noting that another bill in this parliament, Bill C-33, strengthening the port system and railway safety in Canada act, also invokes the declaratory power. Clause 99 of Bill C-33 declares terminals within ports as being for the general advantage of Canada. This serves as a contemporary example highlighting the ongoing relevance of the declaratory power in modern federal governance.
Colleagues, this is not a money bill. This bill proposes that Parliament consider invoking the declaratory power as described above. This gives the federal government jurisdiction over a piece of essential critical infrastructure which is in the general interest of Canada. Another consideration is that federal jurisdiction also brings stronger consultation requirements and environmental requirements.
Colleagues, as a senator from Atlantic Canada and as a long-serving public servant, my experience is that sometimes issues of national importance located in Atlantic Canada may be lost in the broader context of Canada. My reason for bringing this forward is to inform Parliament of the importance of this area while, at the same time, pressing that the area itself be treated in the same manner as other areas in our federation, notably when it involves issues that are, in fact, for the general advantage of Canada.
Honourable senators, once again, I extend my gratitude for your attention. My director of parliamentary affairs, Lyle Skinner, who is also a constitutional lawyer specializing in parliamentary and emergency management law, is with me here today to help answer any technical or legal related questions you may have in relation to the declaratory power of Bill S-273. I also want to thank him for the excellent job he has done in helping provinces understand the role of the Senate in moving this bill forward.
Chair, I have left with the clerk two documents that I would like to table as exhibits, and they are the resolutions of the legislatures of Nova Scotia and of New Brunswick.
The Chair: Those will be distributed.
Senator Quinn: Thank you.
The Chair: We go to Q and A, beginning with our deputy chair, Senator Miville-Dechêne.
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Senator Miville-Dechêne: Thank you, Senator Quinn, for your interest in the Chignecto Isthmus, which has become almost an obsession with this committee.
My question is specific. You were very clear that this is not a money bill. What is the point of this bill, then? In other words, is this bill just a direct or indirect way to ensure that the federal government pays 100% of the cost to fix the Chignecto Isthmus, which is in very poor condition?
Senator Quinn: Thank you for your question.
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In fact, this bill is looking at that section of the Constitution I referred to as a tool in the constitutional toolbox, and it is for Parliament to decide whether that tool would be invoked to have jurisdiction given over to the provinces. At that point, there is a policy decision of the government to make with respect to what steps are taken next, whether they pay for part of it, all of it or percentages of it. To date, the federal government has talked about 50% contributions to the projects in the options that have been looked at. The main advantage, I believe, is jurisdictions of feds brings in a new dimension with respect to consultations, particularly with Aboriginal communities, and brings in more stringent environmental requirements. This tool has been used in other projects, such as the Champlain Bridge in Montreal, which followed that model, and in other examples and other projects in the country.
Senator Miville-Dechêne: At the same time, the situation is a little bit more complicated because this whole issue is in front of the courts. Obviously, Parliament is sovereign, but I’d like to know if the timing is evident. It is a pressure instrument. I would like to know what you think of the idea of waiting while there are some court issues.
Lyle Skinner, Director of Parliamentary Affairs, Office of the Honourable Senator Jim Quinn: Thank you very much for the question, senator.
It is important to contextualize that we are talking about 92.10(c) in the Constitution. The reference question before the Nova Scotia Court of Appeal is looking at a different section of the Constitution under 92.10(a). That is in relation to interprovincial works and undertakings.
To simplify constitutional law in a nutshell, you can have different heads of power assigned to different matters. A good example would be declaratory powers used to govern nuclear power plants and nuclear material, but also it can fall under the head of power under the reserve power of POGG, or Peace, Order and Good Government, under the National Concern branch.
But also, there is an example as well where the issue before the court — this power, I liken it to almost an exceptional exception to the way we look normally look at the dialogue between Parliament and the judicial branch. Normally, we wait for a pronouncement either on a Charter matter or, in the case of a federalism matter, what is the determination of the courts, and then Parliament will respond. I note in the upcoming budget implementation act that there is that specific point on the Impact Assessment Act. But actually this type of situation is different. It is for Parliament alone to make this determination.
A good contextualization is there was a case in 1990. It’s United Transportation Union v. Central Western Railway Corp. The question was: Does this short line railroad fall under federal jurisdiction? A funny thing happened when going up from the Federal Court of Appeal to the Supreme Court of Canada. Parliament repealed the declaratory power in that case. All the Supreme Court said is that they noted that and withdrew that, and it continued analysis under 92.10(a). So there is nothing wrong with having parallel tracks. And again, this is solely for Parliament to make the determination.
If I may also talk about your earlier question, there is also a historical precedent, too. In 1886, the declaratory power was actually used to create a dike in Pointe-Saint-Charles in Montreal. What is sort of fascinating — obviously, we hope for a different outcome — is that the government, so Parliament, invoked the declaratory power. That’s just a matter of jurisdiction. As a reminder, the Senate can’t introduce money bills. That would be unconstitutional. But the Minister of Public Works at the time declined to fund it. It highlights that there is always still that discretion of the executive branch of state to not — they have the discretion. The purpose of this, by transferring jurisdiction, is to say that this is different than the normal 50-cent-dollar arrangement that is common in federal jurisdiction at this time when dealing with provinces and territories.
Senator Miville-Dechêne: Thank you.
The Chair: Before we go to Senator Cardozo, I want to welcome Senator Prosper who has joined the committee. Welcome, senator.
Senator Cardozo: Thank you, Senator Quinn and Mr. Skinner, for your presentation thus far.
I want to go back to square one and talk about the problem we are trying to solve. How serious is this? What is the prognosis of the roadway and the railway in this area? What are the dangers we are facing? Why are we dealing with it now?
Senator Quinn: As I noted during my presentation, the United Nations identified sites in North America most vulnerable to climate change, critical sites. New Orleans was identified as number one. They had a severe event, Hurricane Katrina, which caused immeasurable damage to New Orleans. Chignecto is the second site. It has projections such that over the next 10 years, with the increasing frequency and intensity of storms, you can expect that once that event will happen, that will cause the dikes to fail, and it will flood the entire land, flood parts of Amherst and Sackville and will compromise and eliminate, if you will, the highway and the rail line.
It is the dikes that we are talking about that have to be renewed in order to prevent that from happening because, if that happens, we are basically shutting down commerce in a significant part of the country that moves in and out of the Port of Halifax, for example, to the rest of Canada, and supplies materials and goods to the province of Newfoundland and Labrador, again through the Port of Halifax, with a lot of that stuff moving down through the Chignecto Isthmus area. Other services that are unique in Atlantic Canada can only be available in Halifax, medical services and things like that.
Senator Cardozo: So we are not looking at raising the level of the roadway and railway; we are talking about securing the dikes more convincingly?
Senator Quinn: The governments of Nova Scotia and New Brunswick undertook a study to look at options to set some groundwork, if you will. They could see some options, and I think there were 10 or 11, and they narrowed it down to 3. That doesn’t mean that any of those options will, in fact, be followed. We heard testimony during the climate change and critical infrastructure sessions that — in fact, we had witnesses talking about using natural approaches combined with engineering solutions. That seems to have caught the attention of people who are going to actually make the decisions downstream about what process would be followed. So there is no decision in terms of what option would be exactly followed.
Why now, to answer your question? We know we are in about a 10-year window, and that was a 10-year window 3 or 4 years ago. The more we move this to the right, the more exposure and risk is imposed on this critical area of our country.
Mr. Skinner: Just to add for your benefit, senator, the way the bill is drafted, it doesn’t necessarily encompass, per Senator Quinn’s point, a specific option. Whatever will be either contemplated presently or in the future, the jurisdiction will be exclusively federal. It is not one single point in time. As things change, if they need to have, for example, dike work in a different part of the river system, then it would be implemented and fall under federal jurisdiction.
Senator Cardozo: What are the steps between the passage of this bill and getting the money together? Are the provinces prepared to put up some money?
Senator Quinn: Again, the purpose of this is not to look at what the funding options may be. From this bill’s perspective, this is simply asking Parliament to use 92.10(c) to determine the invocation of the declaratory power. When Parliament makes that decision, it is the government that will decide how to proceed in terms of financing and in terms of working with provinces and consulting communities and the Aboriginal communities and things like that. That would then be a focal point for the federal government, but in cooperation with the provinces. They will no doubt have their negotiation as to what they may mean.
Senator Cardozo: I recall that when we heard at an earlier time from the Provinces of New Brunswick and Nova Scotia, they were thinking they could come up with 50% of the funding, but that whole issue is still yet to be dealt with?
Senator Quinn: I think they are still in negotiations, but I’m not in a position to state that. Later on, when the provinces are here, they may have comments on that.
Senator Cardozo: Thank you.
Senator Richards: Thank you for your presentation and for being here.
I guess this question is rather moot because you are not talking about finances, but I will ask Lyle if we would run into the same problem, in any way or degree, that we ran into with Campobello Island over the last few years, trying to get federal money and provincial money and some kind of jurisdiction to get a ferry from Campobello to St. Stephen.
Mr. Skinner: Thank you very much for the question, Senator Richards.
For the benefit of senators who are not from New Brunswick, Campobello Island is located in the Bay of Fundy. The issue there is that it has a land crossing into the State of Maine. But there is intra — so intra, within — provincial ferry service. That ferry service falls under provincial jurisdiction. In the case of using the declaratory power, it would cause the Chignecto Isthmus Dykeland System to be under federal jurisdiction.
I guess a follow-up question for you would be, could the declaratory power be used regarding Campobello Island? It could be used in the concept of a work, for example if there was a bridge to Deer Island, but in an undertaking such as a ferry service, that would not be able to be used.
Senator Richards: The Chignecto Isthmus and the ferry service are apples and oranges. They’re two different problems with two different solutions.
Mr. Skinner: Again, this is about jurisdiction, but the federal government does have responsibility for interprovincial ferry service between two provinces. However, there is a separate discretionary funding arrangement for intraprovincial ferry services in British Columbia. That might be an avenue, if the government, again, could use its own discretion separate from jurisdiction to help Campobello Islanders out. That could be an avenue.
Senator Quinn: If I may, senator, I suggest that this power is in the general interest of Canada. I think there would be quite a debate. I’m familiar with that ferry, as you know. Having that ferry service declared under this power would be a questionable move.
Senator Richards: Yes. I absolutely agree. I just thought it might fall under the same parameters. That’s all. I wanted clarification. Poor Campobello. They’re talking about insurrection. We don’t want to go there. They have a long way to go to get to New Brunswick to buy their groceries. They have to come through Maine. Thank you very much. I was just wondering how they linked up or didn’t link up as far as jurisdiction went.
Senator Dasko: Thank you, Senator Quinn and Mr. Skinner, for being here.
We have documents from Nova Scotia and New Brunswick, but we don’t have anything from the Government of Canada.
Senator Quinn: Lyle will expand on this, but in the chamber, Senator Cormier raised the legal interpretation of a couple of experts, Lajoie and Peter Hogg. He went through part of the rationale. Continuing with that paragraph, he talked about the preference to have the agreement of provinces directly affected if the declaratory power was to be invoked. The interest has now been expressed through their legislative processes.
I mentioned Newfoundland and Prince Edward Island. The premier of the Province of Newfoundland wanted to be here tonight, but he is in Europe. I was in discussions with them to help them understand what we were trying to do because it affects Prince Edward Island. They voiced that they would be supportive of that, as did the province of Newfoundland.
Senator Dasko: Yes, but my question concerns the Government of Canada, whose name is being invoked here in the bill. I’m just seeking clarification. What is their position on this? Are you saying that Professor Hogg has a negative opinion?
Mr. Skinner: To help contextualize this power — dare I say awesome, exceptional power — and how we look at federalism these days, folks may be aware of the power of reservation or disallowance. Those are generally viewed as spent powers. The declaratory power isn’t because Bill C-33, which maybe this committee will hear at some point, is also invoking it.
Again, we have to distinguish between the executive government of the Crown and Parliament. It is for parliamentarians to make the determination. The courts have decided it’s for Parliament. It’s not for a minister. The declaratory power has been used 500 or so times. A lot of times it was used in a private bill setting. For the example from 1886, that was a declaratory power used for jurisdiction for a private company to construct a dike and a railroad.
Provincial consent is not required under the Constitution right now but it is important because it assigns federal jurisdiction to works that would normally be provincial. That is a sweeping power of the Parliament of Canada to use, and it should be used in exceptional matters, for example, for nuclear safety; for folks from the prairie province, for grain; or for international bridges and tunnels.
Thinking back to the Charlottetown Accord, one of the constitutional reforms was to require provincial consent. Right now, there is no constitutional legal requirement for provincial consent of the affected provinces. In this case, however, the provinces are passionate that this is in the national interest. If the Charlottetown Accord was adopted, they are demonstrating that they would consent to this exclusive federal jurisdiction.
Senator Dasko: Let me approach this in a different way. Sorry, I’ve got some smiles on the faces of my colleagues. I didn’t mean to put it quite that way.
I understand that there’s a tremendous environmental problem here, a real risk, but what is wrong with the status quo of the situation? You did say that the feds had agreed to pay for 50% of the cost of dealing with this. Is this to kind of up the ante a bit to get more than 50%? What was wrong with the developing situation as it was? You want the feds to ante up more?
Senator Quinn: I think there’s some truth to what you say. It may, in fact, up the ante, but Parliament will make the determination on the declaratory power — the upper and lower chambers will make that decision — and the government will then decide how to proceed.
Getting this under federal jurisdiction also increases the consultation processes I referenced earlier with respect to First Nations. You’re going to hear during our proceedings that First Nations have a direct interest in this area, particularly with one of the nations that actually owns land where the CBC transmission towers used to be located on the Tantramar Marshes. That’s one of the reasons.
The other reason is that with doing projects at the federal level — I know this from working at the Port of Saint John — the environmental requirements are more stringent. They involve the provinces, but the federal process is the trend setter.
Senator Dasko: You’re expecting more action on the environment under the new —
Senator Quinn: Under consultations and environmental issues.
Senator Dasko: Under this change?
Senator Quinn: Yes.
Senator Dasko: The status quo is just not going to solve the problem? Is that it?
Senator Quinn: I need to be careful how I answer that. Different provinces have different relationships with First Nations. Using the federal government as the jurisdictional holder will ensure that the required mandatory consultation processes are adhered to in a thorough way.
Senator Dasko: Thank you. Did you have another answer, Mr. Skinner?
Mr. Skinner: Just as a supplementary answer, to again add some context, it also helps ensure coordination because it involves two provinces. If the government so chooses, it provides the option to follow the same example of the Champlain Bridge, which this committee heard about 10 years ago. It’s an intraprovincial bridge solely located between the Island of Montreal and Brossard. That is an example where the policy exception was chosen by the Government of Canada because it was no longer under the traditional FPT lens.
This is more of a question for the provinces, but there is a problem with the current funding arrangement. The Disaster Mitigation and Adaptation Fund is oversubscribed. Large-scale projects start at $20 million. For example, another project under this fund is not as grand as the isthmus. It’s the Highway 11 culvert mitigation improvements in New Brunswick which cost $13.5 million. What does that mean for folks, again, not from New Brunswick? It means that even at 50-cent dollars, there’s only $80 million left in the overall funding envelope, which prevents other well-deserving projects from seeking the funding. The size of this project, the cost, is estimated at over $650 million, just to put that in context. Again, those questions are better left for the provinces.
Senator Clement: Thank you for being here.
I want to continue along the lines of where Senator Dasko was going, or where I assumed she was going. I have some how-did-we-get-here questions. I was mayor of Cornwall. I’m not comparing Cornwall to your situation. Cornwall is a small city, but we had infrastructure to deal with. Some of it was local, but some of it had provincial and more federal impact because it was the St. Lawrence River, and it was a wastewater treatment plant. It not only had a local component but a stewardship issue around the St. Lawrence River and all the cities and towns along that river. There was a push and pull of politics that we used to get the money. We worked with the province and the feds. It took a while, but we worked out a funding formula.
What happened here? How did we get here where it sounds as if the only option is we have to get the feds to come in here to properly deal with this? What does this mean for other projects all across the country, not just in the Atlantic but elsewhere where climate change is having devastating impacts? Are we heading toward saying that the federal government should take all of this over because there’s no money to deal with these things?
It’s more of how did we get here, and where is this going to lead? We’re legislating a situation rather than negotiating and bringing in — I have a municipal focus, so I liked that push and pull, where you have the three orders of government coming together and arguing but bringing their specific issues. Here, it’s just like we give up because there’s no money. I understand Mr. Skinner’s point that there are two provinces, so there’s complexity. I don’t want to say Cornwall is the right comparator, but this is where I’m coming from in terms of my question.
Senator Quinn: Thanks for the question. It’s a good question as well.
How did we get here? First, I want to say, and I have to keep coming back to it, that I would fully expect that our colleagues are going to decide whether this will go to the lower chamber or not, not us. Our whole team will. If it does, then the lower chamber will have its hearings and debates and whatnot, and they will decide whether they agree. If they agree, it then goes to the federal government. If the federal government decides to move forward, I would fully expect that there will be negotiation. I think it will be a more focused negotiation.
Why are we here? Because I’m a senator here in the Senate. I’m familiar with the area. I’ve been watching discussions going back and forth while, at the same time — and a lot through the work of this committee — becoming more in tune with the criticality of addressing things sooner rather than later.
I am also familiar with a number of instances where this exact power has been used in other areas of the country. In my talking points, I said I would like Atlantic Canada to be treated in an equitable fashion in terms of these major issues as part of the federation.
Again, I want to underscore that it doesn’t take anything away from what may occur, if both houses agree, for the federal government to then move to more focused negotiations. But to this point, the negotiations have been back and forth, and I’ve observed that. I decided, as a senator, to use a private member’s bill, which I understand is intended for this purpose, to take a regional issue and to raise it at a national table. That’s basically how we got here.
Bear with me. I’m from Saint John, New Brunswick. I was the port CEO in Saint John, New Brunswick. If I were in the Port of Saint John proposing this, I might not be in the Port of Saint John tomorrow. But I’m a senator in the Senate of Canada, and I have to raise my vision to Canada-wide but also within my region. Are there issues in my region that need to get national focus? As I said in my speaking points, I have 32 years in public service. Often issues in Atlantic Canada got last on the national stage. That’s a fact. I’ve used this as a senator because I think that’s one of my responsibilities and functions as a senator.
Senator Clement: Thank you. I hear you. So negotiations failed, in other words? Because now we’re legislating, potentially. The federal government or the governments didn’t come to a solution around this very urgent issue, so now we’re here. We haven’t planned properly. We haven’t planned for climate change. I’m trying to understand what failed for us to say that now we need to just put this in the hands of the federal government.
Senator Quinn: With all due respect, senator, I wouldn’t contextualize it as anything having failed. I would say that we’re using a mechanism in our Constitution to bring greater focus to an issue that’s of national interest. It’s in the general interest of Canada. I can say that with 100% certainty because I’m very familiar with trade and commerce and how it interlinks through our ports, railways and trucking industries in Canada. I am also acutely aware of the other factors in this area that will be affected should or when those dikes fail and we have flooding. It will flood two towns and other surrounding areas. We’ll lose volumes of farmland, and there will be immeasurable, probably irreparable, damage. I’ve focused on accelerating focus on this discussion. I don’t think it’s correct to say there’s been a failure.
Senator Clement: I shouldn’t use the word “failure,” because it obviously creates defensiveness. That’s my fault.
What alternatives were tried before we got to this? That’s probably a better way of putting it, because I understand your answer.
Mr. Skinner: You raise an interesting question, senator. What is the solution to the riddle?
I draw your attention to the preamble of the bill. It refers to the Maritime Marshland Rehabilitation Act. The ironic thing here is that with the dikes today, where the 50-cent dollars were paid 100% by the federal government, owned by the federal government, in 1970, ownership was transferred to the two Maritime provinces.
What is the challenge? I think the challenge right now is a policy decision. If we’re dealing with 50-cent dollars, everything has to fall under the 50-cent-dollar framework. What we’re saying is that this is something different. Again, you acknowledged the two different provinces. A lot of the assets will physically be located in New Brunswick, but the benefit, I’d say, on balance, would actually be to Nova Scotia because that’s just the way the geography is. Historically, the federal government did have an alternative solution. Again, this is just a mechanism that doesn’t compel any funding, but it gets the conversation beyond the 50-cent dollars because this is of such significant importance to Atlantic Canada and, dare I say, all of Canada.
Senator Clement: Thank you, both.
Senator Quinn: Thank you.
Senator Robinson: Thank you both for being here to speak to us about the Chignecto Isthmus.
As I said earlier, I am a senator from Prince Edward Island. Agriculture is our most important industry, and export of our ag products is critical. We certainly do see a lot of sea cans, as we call them, heading over to Halifax to be exported from that port. I know a lot of people have been medevaced by ambulance to Halifax. It is certainly the biggest regional hospital with the greatest resources for us locally. I think about tourism and about all the value that Canada relies on Nova Scotia to bring to our GDP and what would happen if Nova Scotia was cut off from us or us from them, depending on which way you look at it.
If we look at 2021 and what happened in British Columbia with the Fraser Valley, with that flooding, we saw the loss of farmland, which you have intimated would happen when the dikes fail in Chignecto. We saw massive contamination of water. We talked about environment. We saw a loss of highway, railway and communications infrastructure. I see many parallels there.
In my previous life with the Canadian Federation of Agriculture, I certainly heard producers in the B.C. Fraser Valley area sounding the alarm and trying to get the attention of the federal government and their provincial government to put money into proactive measures before we got to that situation. Unfortunately, that didn’t happen, and now we’re looking at a bill of $9 billion plus for cleanup and recovery from that flood.
Have you looked at the B.C. flood situation? Have you learned anything from that? What have you applied to this with that knowledge?
Senator Quinn: Thank you for those questions, senator.
That was one of the discussions we had during our previous work on critical infrastructure and climate change. It certainly underscored the importance of taking action sooner rather than later. You’re right. Unfortunately, history has a consistent track record of not taking actions when there is a problem that’s well defined and well known. We wait and we wait until we have the event. The costs resulting from the event are much greater than was talked about. That was one of the struggles that my colleagues referred to tonight. I think the parallels are good.
One of the things that I have learned from being a senator from that end of the country, and from being a senator who is involved in the transportation sector; is that this is a critical area to the economic well-being of our country. We need to bring greater focus to it so that the negotiations can be stronger and more focused and so that action can begin.
I think your observation is both a good one and a fair one.
Senator Cuzner: Thanks very much for the presentations.
It’s just not the problems of Nova Scotia that is the main benefactor; it is the producers in Quebec, Ontario and western points getting their goods to market in Nova Scotia, Newfoundland and, through the Port of Halifax, internationally as well. It does have a broader impact. I understand that.
Could you help me with the declaratory powers? How is that triggered? You referenced the one in 1886. Do you have a couple of examples of something more recent — like from the Backstreet Boys era onward?
Mr. Skinner: Thank you very much, Senator Cuzner.
Regarding the mechanics of the declaratory power, you can declare a work for the general advantage of Canada or of two or more provinces. That’s from the Constitution Act, 1867, and section 92(10)(c). That has to be in an act of Parliament. Unlike a court determination, if we find that the declaratory power is not useful, it can be repealed like it was in the example I used when speaking to Senator Miville-Dechêne. Parliament alone makes that determination.
I will work backwards. In all honesty, I can’t remember when the Backstreet Boys were formed.
Senator Quinn: You weren’t born.
Mr. Skinner: You are too kind.
All international bridges and tunnels have the use of the declaratory power. The Gordie Howe Bridge is another good example, in addition to the Champlain Bridge. Normally, the Government of Canada would cover 50% of the costs, but they are covering 100% of the costs for the Gordie Howe Bridge because it is viewed as being so significant to the economy.
Another example that predates the Backstreet Boys is the act that created the Cape Breton Development Corporation, or DEVCO. It used the declaratory power because the government felt that helping Cape Breton — I know you are a Cape Bretonner; we discussed that I was also born in Cape Breton — was important and that the regional concerns should be acknowledged at the federal level. Those are some other examples.
As I said, anything dealing with nuclear power also falls under the declaratory power. I believe the National Capital Act has the declaratory power invoked as well. I have more examples, but that is probably better for later. Bill C-33 is also anticipated.
Senator Quinn: Bill C-33, which is in the lower chamber now, has the declaratory power embedded in it as it pertains to terminals and ports as being in the national interest.
The Chair: Senators, you have 10 minutes to share on second round.
Senator Miville-Dechêne: Who owns the land we are talking about in the Chignecto Isthmus?
Mr. Skinner: In the context of who has title, or if the declaratory power was used, who would have ownership?
Senator Miville-Dechêne: Both.
Mr. Skinner: Both. Good question.
That question would be better left to the provinces. I know they have the feasibility study because there are a lot of different rights holders and title holders, including Indigenous Canadians. It is important to note that the invocation of the declaratory power does not actually change ownership. Parliaments in the future could choose to do so, but that’s an ancillary issue. A good example is the province of New Brunswick which has the most international bridges in Canada but the —
Senator Miville-Dechêne: I will stop you because we don’t have much time.
My last question goes back to what Senator Clement was asking. There are many conflicts between the federal and provincial governments in terms of sharing the bill, such as health care and everything. That doesn’t end up as a private member’s bill. It’s solved through negotiations. I understand that New Brunswick and Nova Scotia are negotiating now with the federal government. At one point, they were not, but negotiations have started again. I know this is more of a philosophical question. In a way, it goes into the political terrain. I know it is not easy and Quebec is always complaining about sharing, but should it be our role to legislate on a difference about how much we are going to pay for that?
Senator Quinn: Thank you for that question.
Again, this declaratory power has been used in different areas of Canada. Mr. Skinner has described that with some of the more recent and current examples in legislation that’s being proposed. But it has been used in other parts of Canada where the federal government has made the declaratory power because it is in the general interest of Canada. It doesn’t mean that negotiations don’t take place. In the case of the Champlain Bridge in Montreal, it was paid for 100% by the federal government. That’s fair because the federal government made the decision after Parliament invoked the declaratory power. The Gordie Howe Bridge — both sides — are being paid for by the federal government because they made a policy decision after the declaratory power was invoked.
This piece of land that joins Nova Scotia to New Brunswick is every bit as important and is every bit in the national interest as that to which I have referred. Again, I’m putting the argument forward that Atlantic Canada needs this to be seen on the national stage as this being in the national interests of Canada. About $35 billion worth of trade crosses this area every year.
Senator Richards: The idea is that this has taken so long is simple neglect. That’s what it is. I don’t want to be verbose, but that’s generally what happens to the Maritimes. It has happened since I was a kid. It still happens. You can bet that if this were in a more advantageous place, in Ontario or Quebec, this would have been handled a lot better a long time ago. I applaud you for bringing this forward. I think it is absolutely essential for Canada, not only for the Maritimes but for all of Canada. As Senator Cuzner said, it’s a win for Quebec and Ontario as well. That’s my comment.
Mr. Skinner: If I can just offer a point to ponder as I put on my emergency-management-lawyer hat, to put it in context, we are talking about adaptation and mitigation, so that’s on the front end, before a disaster. That’s 50-cent dollars. We’re talking about a fund that has remaining in it $800 million, if I recall correctly. Now, on the other end of post-disaster response and recovery, that’s where the federal government, through the Emergency Management Act or federal disaster assistance, comes in. That’s, again, a cost-sharing arrangement, but there’s per capita funding. After we hit a certain threshold — and I have my napkin calculation here — there are roughly $20 million or $25 million in the case of New Brunswick. The federal government pays 90% of all costs up to an unlimited liability, right? As Senator Quinn talked about and as you’ll hear from the provinces, the impact on the recovery side will be absolutely catastrophic from a financial point of view. The amount of money that we’re talking about on the adaptation and mitigation side to do the preventive work, which they did in the 1940s at 100%, is far cheaper than doing it from the disaster recovery side.
The Chair: Senator Quinn, thank you for taking all our questions and for coming before this committee as a witness this time. We look forward to you taking your rightful place back with us. Mr. Skinner, thank you as well for your insight on the issue.
Colleagues, we will turn to our second panel. We are pleased to welcome the Honourable Blaine Higgs, Premier of New Brunswick. We are also pleased to welcome the Honourable Kim Masland, Minister of Public Works for the Government of Nova Scotia. Thank you very much for joining us. We will begin opening remarks with Premier Higgs for five minutes, then over to Minister Masland, and then my colleagues will have questions.
[Translation]
The Honourable Blaine Higgs, Premier of New Brunswick: Good evening, honourable senators. As Premier of New Brunswick, I want to thank you for giving me the opportunity to speak to your committee.
You are fulfilling one of your constitutional responsibilities by giving regional interests a voice on a matter of vital importance for New Brunswickers and for all Canadians, given its national scope.
[English]
The dikes on the Chignecto Isthmus are works built for the general advantage not just of the Maritime provinces but for the whole of Canada. The Government of New Brunswick therefore strongly believes that the Constitution of Canada requires the federal government to take full responsibility for these works because of the trade, transport and communication links they support.
In seeking recognition of this view by the Government of Canada, New Brunswick is working on two approaches to achieve this end. One is the legislative approach in Bill S-273, proposed by New Brunswick Senator Jim Quinn and which we will discuss here today. We are also pursuing a legal avenue as an intervenor in the reference case being brought by the Province of Nova Scotia. This matter will be heard by the Nova Scotia Court of Appeal on a date yet to be determined. As that matter is before the courts, I will say nothing further on the issues to be raised there other than that the case seeks the same end that we are discussing here today — a declaration that the federal government is exclusively responsible for maintaining vital economic links between provinces, including the Chignecto Isthmus.
Bill S-273 would see the Parliament of Canada use its discretionary powers under section 92(10)(c) of the Constitution Act, 1867, to declare that the maintenance of the Chignecto Isthmus is for the general advantage of Canada — in other words, in the national interest and must therefore fall under the jurisdiction of the Government of Canada.
Senators, I can understand that some of you may wonder whether it is okay to use the declaratory power in Bill S-273 given any perceived impact on provincial rights. Senators, New Brunswick supports the use of the declaratory power in Bill S-273.
The risk to the isthmus created by more frequent and severe storms and our changing climate is of great importance, not only to New Brunswick and Nova Scotia but also to the health and well-being of our fellow Atlantic Canadians in Newfoundland and Prince Edward Island.
A system of dikes, first built in the 1600s, has made the marshland useable, first for agriculture and more recently for transportation. Every day, millions of dollars’ worth of goods pass in both directions across the isthmus. In 2015, the volume of goods moving by road and rail through this area was estimated at $35 billion annually. That number would have increased significantly over the past decade.
The Chignecto Isthmus is the sole land bridge that connects New Brunswick and Nova Scotia. The Trans-Canada Highway crosses this marshland, as does the CN Rail line which serves the region. In addition, telecommunications links and electricity infrastructure cross this area to connect our two provinces. The isthmus is integral to national and international trade.
Protecting these 19 kilometres of road and rail links is a series of dikes that hold back the sea and regulate water levels. As storms become more severe due to climate change, the risk of a failure in the dike system grows with each passing year. We are working with Nova Scotia to address this threat. We have jointly developed a multi-year plan to improve and secure the dike system at an overall cost of $650 million.
We believe the Government of Canada should assume the full cost of this project, in keeping with their constitutional responsibility. Some of our colleagues in Ottawa disagree, but we are working on finding alignment. While the constitutional principle is important, protecting the isthmus and the people and goods that travel across it cannot wait. We are proceeding with the work because it needs to be done. We can’t afford to have this vital transport and telecommunications link fail for any reason. That would be catastrophic for our region and for the country. But I maintain that the Government of Canada bears the ultimate responsibility for securing the isthmus, as it has done over the past 150 years to build roads and rails that connect this country from sea to sea to sea.
The use of the declaratory power is not without recent precedent. A decade ago, Parliament used the declaratory power, causing the Government of Canada to assume full jurisdictional responsibility and make the policy decision to build and maintain the Champlain Bridge across the St. Lawrence River in Montreal, a project wholly located within the province of Quebec. As a matter of regional fairness and respect, I ask that senators treat this request by the Atlantic provinces no differently.
Senators, Infrastructure Canada’s Disaster Mitigation and Adaptation Fund is inappropriate for a project of national importance like protecting the Chignecto Isthmus. The fund is oversubscribed, with other provincial and territorial applications competing for the remaining $800 million in funding. Even at 50-cent dollars, the estimated total $650 million cost of the Chignecto project will limit the ability of all provincial and territorial governments from accessing these remaining funds. Clearly, the Chignecto project must be treated differently.
Senators, that is why I ask you to pass this bill, to indicate that the Chignecto project is in the national interest and have it brought before the House of Commons. I believe this is a matter of great urgency for my province and all Canadians, and I ask that you do your part to ensure that the Government of Canada acts in the best interest of this country.
[Translation]
Thank you for your attention. I’m happy to take your questions now.
[English]
The Chair: Thank you, premier.
The Honourable Kim Masland, Minister of Public Works, Government of Nova Scotia: Good evening, honourable senators. Thank you for the opportunity to speak to you tonight on behalf of Premier Tim Houston and Nova Scotians on this very important issue.
The Chignecto Isthmus is an essential land transportation corridor for people and goods travelling between Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland and Labrador and the rest of Canada. A network of dikes and aboiteaux were built in the isthmus in the late 1600s, which currently protects communities, infrastructure, private lands and natural resources from rising sea levels. With more frequent severe storms and rising sea levels due to climate change, the dike system is at risk of being breached.
The Chignecto Isthmus corridor contains the Trans-Canada Highway, connecting Nova Scotia and Newfoundland to New Brunswick and the rest of Canada. It also has the only railway between Nova Scotia and New Brunswick, which connects the Port of Halifax to the rest of Canada and Midwest U.S. markets. Power and telecommunications lines also run through it. It is estimated that $100 million worth of goods pass through the Chignecto Isthmus every day and billions of dollars of goods each year.
Nova Scotia is also a hub for health care and post-secondary education for people throughout the Maritime provinces. Many people travel to and from the province every single day for important medical appointments.
The isthmus is not just important for people who need to get to Nova Scotia — it’s also important for those who rely on goods that are produced in the province or are transported through our province from other parts of the world. The protection of the Chignecto Isthmus should be of national interest, as without it, there would be major impacts to the rest of the country. Many people do not likely realize just how much they rely on goods that come from or through Nova Scotia.
If the dikes at the Chignecto Isthmus were to fail, there would be major supply chain issues across Canada. Many of our agricultural producers ship their products nationally using this corridor, helping to feed Canadians. Feed for livestock often comes from outside our province, which is critical to farming, especially in the poultry, dairy and beef sectors. Our farmers and communities also rely on the isthmus to transport food that’s processed outside our province. The fresh Nova Scotia lobster, scallops and other seafood that have become a favourite across the country would not be available in restaurants and grocery stores. It cannot be overstated that without the isthmus, there will be serious challenges to the food supply chain. The goods that pass through it quite literally keep food on the shelves and people fed.
The huge number of cars that come through our ports from other parts of the world would not be able to make it to car dealerships. If the isthmus were to fail, the forestry products that we export, like paper and lumber, would not make it to other parts of Canada. The goods that are shipped by container into our ports and then transported by train across the country would not make it to where they need to go. This includes critical supplies that businesses in other parts of the country use in their production processes.
Prince Edward Island and Newfoundland and Labrador also use the Chignecto Isthmus for health care delivery and the shipment of essential goods.
Without the corridor, there would be major challenges trying to transport these goods and the many others that go through the isthmus. This would have a massive economic impact not only on Nova Scotia but on many other parts of the country. This is not simply about keeping Nova Scotia connected to the rest of Canada — it’s about keeping Canada connected to important trade routes with Nova Scotia, Atlantic Canada and the rest of the world. It’s because of this that I urge the federal government to protect this national trade corridor. It’s a massive project, but it is in the best interest of all Canadians, and we need to act fast.
Our government and the Government of New Brunswick have made our position clear on this issue. Both of our Houses of Assembly support this position, and on March 17, the Nova Scotia House of Assembly unanimously passed a resolution urging the Parliament of Canada to pass Bill S-273.
We believe the federal government has a responsibility to pay for this project as it is a national trade corridor, and, if the isthmus were to fail, it would have major impacts on Canada as a whole. We are prepared to work with the federal government and our provincial counterparts to move this project forward and to protect this vital route.
Climate change and the storms we are experiencing in Nova Scotia are only getting more frequent and more powerful. We need to act now to ensure that our trade routes stay open, that people can continue to get medical and other services they need and Canadians can travel throughout the Maritime provinces. We need you to pass this bill.
Thank you for your time, and thank you to Senator Quinn for bringing this very important bill forward.
Senator Quinn: Thank you for being here this evening.
You probably heard the earlier session tonight. One of the things I’d like to have you both talk about is the state of negotiations that have been taking place to this point in time, where those negotiations stand today, just to inform us so we have a better appreciation for that. Minister, you may want to go first, followed by Premier Higgs.
Ms. Masland: Certainly.
Negotiations continue to happen with provinces and the federal government. We know that the federal government came back and suggested that we apply through the DMAF application, 50 cent dollars. We have done that, but we also know that that is oversubscribed. We’ve made 15 other applications, so sadly it leaves us as a province with the end result of trying to pick and choose what we do for important projects.
We believe that the federal government is and should be 100% responsible for the isthmus. It is of national significance, and certainly we are asking for the same fairness and respect that has happened in the past.
Senator Quinn: Thank you. Premier?
Mr. Higgs: Thank you, senator.
In relation to the application we put forward, that was about a year ago in July. There have been monthly check-ins since that time, but there hasn’t been much progress. There hasn’t been any real resolution. We put an offer forward without prejudice to certainly get the project moving, and then the application to the federal government was based on a negotiation strategy to work through the funding levels and not to jeopardize, as the minister has put forward, other environmental projects that would be appropriately allocated to different provinces.
The last meeting, actually, their request was to have it on May 6, and it has been delayed at the federal government’s request. We’re kind of at a stalemate here now, and I’m not sure if there’s kind of a mood to wait until this gets resolved in the Senate. This would go a long way, having resolution here and obviously having a resolution that respects the importance of this trade not only between New Brunswick and Nova Scotia but that feeds the rest of Canada from the East Coast.
It’s really relevant. It’s important this is done in a timely manner. We have taken the initiative to move forward in the project because we feel it’s important and there’s a sense of urgency not to get caught, as was pointed out earlier, in a disaster that we’re trying to mitigate after the fact. We feel it necessary, and the prudent thing to do to get on with it.
We have our design teams working on the best approach. Right now, there are three possible options being considered, but it would be nice to put this behind us. It would be appropriate to have it recognized in the national interest, which it clearly is. It is clearly a key corridor between provinces and, as we’ve said, feeding the rest of the country and providing a major export outlet as well.
Senator Quinn: Thank you, premier.
With respect to the declaratory power we’ve talked about in terms of section 92 of the Constitution, do you believe that the declaratory power and the consideration by Parliament is one of the responsibilities of the Senate and of the House of Commons to bring the possibility for the government to then take the policy decision as they see appropriate? That’s for both witnesses.
Ms. Masland: Certainly, 100%. We need you. I don’t know if many of you have actually driven through the isthmus, but I would invite you to come to visit us. I certainly will meet you. When you are entering the isthmus, you know when you are in the isthmus. You can feel that drop when you’re driving through. We need your support. We’re sounding the alarm. This is not a matter of if; it is a matter of when. Something is going to happen. I just can’t express to you folks enough how much we need you, and we support wholly the declaratory power.
Mr. Higgs: I certainly would concur with the minister. I’m actually quite surprised this has even become a debate nationally, that there’s a need to have this review and to impose the declaratory power the senators have in order to bring this constitutional awareness forward to the House of Commons. It seems like such a straightforward item. There can be no debate of its importance between provinces as well as to Canada, even thinking back in history of how the East Coast has been so strategic to supplying the rest of Canada with goods and services and providing that outlet, particularly through our ports.
It’s certainly needed. We need a decision from this body in order to make the awareness real, in order to have the federal government take the position that it needs to to address this critical infrastructure requirement that is part of a constitutional foundation of ensuring that our provinces stay connected and we have that national unity from coast to coast to coast.
Senator Quinn: Thank you.
[Translation]
Senator Miville-Dechêne: I’d like to come back to this issue of declaratory power. I understand, based on the testimony from Senator Quinn himself and from other experts that I’ve consulted, that even if Bill C-273 passes, nothing obliges the federal government to be more generous with funding. If I understand correctly, at this point, the federal government has promised to pay for 50% of the work. So why are you putting your hopes in this bill when you have no certainty that the federal government would cover a higher amount?
[English]
Mr. Higgs: Well, certainly to this point, the federal government has taken a position that it is a disaster relief funding model, and that would be the 50/50 contributions. They have not taken the position that it’s a constitutional requirement. That is the very reason that we’re here, and that’s why I’m certainly very confident in the outcome in the sense that it is very hard to argue that this is not a strategic infrastructure requirement in our country.
I thank Senator Quinn for bringing this forward, and I also thank each of you for deliberating this in the sense of national unity and national importance, not of where it’s going to land in terms of who finances what. It takes the argument away of what is the fundamental requirement here for the federal government in ensuring that we have trade corridors that are strategic in nature throughout our entire country. I guess that’s what we’re saying here today, and I think that’s what was argued before. Yes, this doesn’t determine what the funding level might be, but it does determine how important this infrastructure is to Canada. It’s important to Atlantic Canada. We’re here tonight speaking on behalf of our four provinces here in Atlantic Canada, but the point is we all agree that we are a strategic part of national interest. We feel that we do punch above our weight in that regard, and we want to be recognized as such. For us, this is an important link not only for Atlantic Canada but for our entire nation. This is the question that’s being presented to you, as senators, tonight. The idea is, let’s solve this issue first. If we have agreement in that regard, then we have a position to negotiate with the federal government on a funding model that would make more sense.
[Translation]
Senator Miville-Dechêne: Thank you for that answer. I understand very well the importance of the issue for New Brunswick and Nova Scotia, believe me.
You are no doubt aware that private members’ bills are not a priority in Parliament. It can often take a year or two for these bills to pass. In my case, it took three years. At any rate, there is a delay. In the meantime, what are you counting on for help? Will the courts allow you to obtain the money? Will you try to relaunch negotiations?
[English]
Mr. Higgs: Well, first, whether we get into a court situation, I guess it depends on the outcome of the negotiations and the outcome of the hearing here today. What we considered as a necessary move was for us to work together with our colleagues in Nova Scotia to put a program together, understand what’s required in terms of infrastructure, changes and improvements, and to move on it, so not wait for a decision. That’s why we moved on it. That’s why we’re going forward.
Your point that a private member’s bill can take two or three years, yes, that’s concerning, but we can’t allow the project to be held up. We have to keep moving on it to address the issues that we were close to here a year ago or so where we had severe rains and high sea levels. We’re very concerned about that, and we don’t want to be working in the water trying to fix it. We want to work before that. While it may take two or three years, the importance of a decision and support from this house would be extremely valuable in allowing us to get the negotiations on track and to have serious discussions on the right funding model.
[Translation]
Senator Miville-Dechêne: Thank you.
[English]
Senator Cardozo: Welcome, Premier Higgs and Minster Masland. Thank you so much for joining us and to Senator Quinn for putting forward this bill.
I agree that we have a real problem here that we need to address. Minster Masland, you talked at length about the trade that goes back and forth, which is a benefit to people in both of your provinces but also the rest of the country. I’d say it even goes beyond us wanting lobster from your province; it’s us wanting to export goods through your province and import goods from all over the world through your province. The Chignecto Isthmus is of importance to people all over.
An issue I put to many people who appear before us and talk to us about various things is that there is virtually no sector that I’ve ever heard from who feels the federal government is spending enough on their sectors. I would suspect that you have the same conundrum with people who come before your provinces. There’s nobody who comes and says, “Don’t fund us anymore. You’re funding us enough.” Everybody feels that the federal government is woefully underfunding them, whether that’s defence spending — you’ll be familiar that the National Defence minister announced their new program doesn’t meet the 2% target and lots of criticism about that — or housing, whether it’s autism or health care. How does one make the case that this is as important as everything else?
The other thing I want to put to you is we had officials from both of your provinces a few months ago who are of the view that the two provinces would come up with 50% of the money and the federal government needed to put up the other 50% of the money. Is that a changed position on your part? .
Mr. Higgs: Thank you, senator.
I think that it’s certainly not a changed position as such because we believe we had to get on with it and having 50% funding commitment was better than not having any. As provinces left to our own, it was not going to be a project that we could easily handle, if at all, so understanding at least the basics was the first row in that.
I understand what you’re saying in relation to, yes, we always want something more. I would make this comment: We say a lot of spending that’s done federally in provinces is not priority spending for the province. If we were given the opportunity to really focus where we want to spend the money and where we think it’s necessary, then that’s fair. Let us put the priorities and let this one fall out where the priority fits based on what we believe is needed. But what we often see are projects created in our province that are not the priority of the day, but they are seen as a priority for the federal government. So while you may say that no one ever thinks they have enough money, I actually think that we’re spending way too much money federally and it’s just not being prioritized properly in different provinces.
Senator Cardozo: Minster Masland?
Ms. Masland: Certainly. Thank you so much for the question.
Absolutely. We know as ministers that there’s always the struggles to try to find enough money to fund what needs to be funded.
What I will say about this project is this is a significant project. It is a large project with a large cost and is going to take 10 years to build. We cannot wait any longer. We’re sounding the alarm on this. Our position has not changed. We still believe that the federal government should be responsible for this. It is a project of national significance. But we did what the feds have asked us to do and we made the application. Again, you heard my colleague Premier Higgs speak earlier. We made that application back in July. We still have not had any response to the application at all.
This is a project that we had to act on. We had to start doing something because we can’t wait. As I said earlier, this is not a matter of if; it’s a matter of when something is going to happen. The cost to repair after the fact will be incalculable. To even think about the loss of community, the possible loss of life. I can tell you, people who live in the area are scared. Every storm that comes, they’re holding their breath.
Our position has not changed. We believe the federal government is 100% responsible, but certainly, we’ve done what the federal government has asked us. We’ve made the application. But we couldn’t wait and we can’t wait.
Senator Cardozo: Just so I understand, you would be applying for 100% or applying for 50%? What did the application process offer you?
Ms. Masland: We believe the federal government should be 100% responsible for the cost of the project, which is around $690 million. We have made application for the 50-cent dollar through DMAF, but we know that the DMAF envelope is totally oversubscribed. It really puts us in the position, and other provinces in the position, too, of funds that are coming towards them. There’s only, what, $800 million left in the envelope. Certainly, our position stands that we believe the federal government should pay 100%, but we’ve done what they’ve asked and made application for the 50-cent dollar through DMAF.
Senator Cardozo: I have driven through the area a few times over the years. I should come by again, though. It has been a long time since I’ve been through there.
I assume you’ve been talking to members of Parliament from your provinces?
Ms. Masland: Yes, I have.
Senator Cardozo: Are you getting positive feedback from them?
Ms. Masland: No. I have not had any positive feedback. It feels as if we’re at a standstill here.
I echo what Premier Higgs said earlier. We’ve made our application. We’ve not heard anything. We’ve had to take this project and move forward. We had the feasibility study done. We’ve gone forward and are identifying measures and approaches for the project, but we believe the federal government needs to be involved with this. If we look at just the environmental permitting that is going to be required, the First Nations consultation, the archaeological consultation that will need to be done, Fisheries and Oceans Canada, all the permitting is all under federal jurisdiction. I truly believe that the project needs to be funded and managed by the federal government.
Senator Cardozo: Thank you to both of you for coming to join us today.
Senator Richards: Thank you for being here.
Minster Masland, I have driven through the Chignecto very often, sometimes in cars, sometimes on my motorcycle. It is a place of staggering beauty. It has been the inspiration for and fed the imagination of writers, poets and painters for five generations, from Charles G. D. Roberts, to Alex Coleville, to many others. It’s almost a crime to even think it could be neglected.
Premier Higgs, if the funds and the design are decided upon, how long would it take for the work to begin and to be completed on this project? It would be a massive undertaking, wouldn’t it, sir?
Mr. Higgs: Indeed, senator, it would be. It would likely be a 10-year project. As the minister points out, after the consultation period and the design phase, which would probably take two or three years, some groundwork would probably be three years out and last for at least seven years. It obviously depends on how many different components you can do at once. There’s certainly an argument that you can come from both sides and work towards the middle. A lot can be expedited if needed, but all that costs a lot of money.
As the minister pointed out, we felt it was necessary to get started and to accept what was available to us right now, without prejudice — the letter is very clear — of the disaster relief funds and move the project because time was of the essence.
Senator Richards: While the construction and the reconstruction of the Chignecto causeway is being done, there’s no guarantee we’re not going to have a major disaster as it’s being done. So time is of the essence, isn’t it, sir?
Mr. Higgs: Absolutely. It is indeed.
Senator Richards: Thank you very much.
Senator Dasko: Thank you to our witnesses today. You’ve brought great clarity, at least for me. I now understand exactly that it’s about the money, and that’s understandable given the costs and so on.
My question is about the SCC reference that you’ve undertaken. First of all, I just want to clarify. Is it both provinces? Minster Masland, is your government part of that reference to the Supreme Court?
Ms. Masland: Yes.
Senator Dasko: What is the purpose of the reference? What is the goal of the reference, please?
Ms. Masland: What I would say, senator, is that we believe that the Chignecto Isthmus is a significant national trade corridor and that protecting the corridor is not just about protecting Nova Scotia and its interests. It’s about protecting a corridor that is relied upon by Canadians to receive the goods that they need.
Senator Dasko: The goal is the same as this initiative, the bill that we’re looking at now, and that is to hopefully have the court make a judgment that would be very similar to this bill. Is that right?
Ms. Masland: That is correct.
Senator Dasko: When did you embark on the reference?
Ms. Masland: It was July 2023.
Senator Dasko: July of last year. Basically, this gives you another iron in the fire. Is that the way you see it?
Ms. Masland: That is correct.
Senator Dasko: You have this bill, you have the reference, and then you have the initiative with the funding that you’re going after.
Ms. Masland: Correct.
Senator Dasko: Do you have any indication of when you’re going to hear from the court on the reference?
Ms. Masland: I do not, no.
Senator Dasko: Have you appeared before the court to testify yet?
Ms. Masland: I have not appeared personally, no. That is being held within our justice department. I don’t think they’ve appeared yet.
Senator Dasko: Thank you very much.
Senator Clement: Welcome to the two witnesses. Thank you for your careers and being in elected office. Electoral politics has never been easy — you are both nodding your head — but it’s harder and harder. I really do thank you for being there and taking that on.
You’ve all made a good case. Senator Quinn has as well. As a committee, we studied the isthmus in our infrastructure stud, so we understand, and we hear how compelling this is and how urgent it is.
This is a discussion about a funding model that’s going to work. If the federal government takes this over and things are successful in that regard, that means the federal government will control and pay. How do you feel about that part? Do you have faith that you will still be able to bring the municipal-provincial community aspect? Madam Minister, you were talking about that. Can that still be injected into this process if the federal government takes over? In my experience, the feds are not always great at communicating with provinces and municipalities.
Ms. Masland: Thank you, senator.
Absolutely. I’ve been around federal politics. I spent 18 years working for a federal member of Parliament, so I have some federal experience. There are many times that you question when the federal government is trying to — I won’t say the word “interfere,” but take over projects within the province and become a little bit territorial.
With this project here, I truly believe that we can all work through this together. I say that because I know how important this is to Nova Scotia, New Brunswick, P.E.I., Newfoundland and to our entire country. I know how important this is to their local municipal units. My staff have been there and met with them. When I say to you that people who live in those communities are scared, they’re scared and hold their breath every time a storm comes because every storm we get is more powerful. That is happening. I’ve talked to people. I believe that everyone is sounding the alarm loudly. We need your help. We need the federal government’s help. I believe that we can move this project forward together for the right reasons.
Mr. Higgs: I would concur with the minister in the sense of this project being so vital to the connectivity of our province and to the people who are facing it right there at the location. I am more than excited about a federal-provincial agreement to move this project forward as quickly as possible. As I say, we’ve started the process and a lot of the design work, and a lot of that will be well under way so we are able to present the best options going forward. It won’t be like we are at ground zero. I think there would be a tremendous cooperative effort on a priority that is important to the region and important to our respective provinces, and we would like to think it is very important to the federal government as well.
Senator Clement: Thank you.
Senator Quinn: Thank you for the responses to some excellent questions.
I want to come back a little bit to the declaratory power. In invoking the declaratory power, again, with the agreement of the upper and lower chambers, it gives the policy position for the government to decide next steps. We’ve heard you say you would like to have 100% cost covered. That may well be the case, but if the decision is taken by Parliament to invoke this provision, do you think that would provide greater flexibility in the negotiations with respect to costs if there is to be a cost sharing? Would it cause greater flexibility given that DMAF has 50-cent dollars, and that’s the policy of the government at the current time? Does this not give the ability of the policy decision makers to have an exception to an existing policy on infrastructure funding? Again, would it not provide extra flexibility in the negotiation process?
Mr. Higgs: Yes. Absolutely. It would, without question. Having this bill passed and accepted by the Senate would indeed give us a better positioning to have a negotiation that should move forward rapidly. Somehow, it seems like the project is a bit — I won’t say the project is being stalled, but the negotiations are being stalled, probably, in some manner, while waiting to see the general tone may be, even though a decision may be a little while. Without question, it will give us a greater ability to have a very serious negotiation with the federal government because a decision has been given that this indeed has a constitutional requirement and it does indeed fit the need for a declaratory bill like this being passed.
Ms. Masland: I certainly will echo the premier’s comments. Certainly, it will give us a greater ability. Folks are looking for leadership. They are seeing the leadership coming from New Brunswick. They are seeing the leadership coming from Nova Scotia on this file. We really need the leadership — and people want to see the leadership — coming from the federal government as well.
Senator Quinn: Thank you.
The Chair: Thank you so much, Minister Masland and Premier Higgs, for being with us and sharing your views on this important issue.
Colleagues, thank you for this evening.
(The committee adjourned. )