THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Wednesday, May 8, 2024
The Standing Senate Committee on Transport and Communications met with videoconference this day at 6:47 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.
[English]
The Chair: Good evening, everyone. This evening we continue our study of Bill S-273, the Chignecto Isthmus Dykeland System Act. My name is Senator Leo Housakos, from Quebec, and I would like my colleagues to briefly introduce themselves.
Senator Simons: Senator Paula Simons, Alberta, and I come from Treaty 6 territory.
Senator Cuzner: Rodger Cuzner from Nova Scotia.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Robinson: Mary Robinson, Prince Edward Island.
Senator Quinn: Jim Quinn, New Brunswick.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
[English]
Senator Dasko: I’m Donna Dasko from Ontario.
The Chair: For our first panel this evening, I’m pleased to welcome officials from Infrastructure Canada. We have with us Annie Geoffroy, Director General, Regional Programs, Operations and Engagement, Communities and Infrastructure Programs Branch; Shawn Hibbard, Director General, Major Bridges and Projects, Investment, Partnerships and Innovation; and Rachel Heft, Legal Counsel.
I’m also pleased to welcome officials from Public Services and Procurement Canada: Stefan Dery, Director General, Infrastructure Asset Management; and Mani Taheri, Legal Counsel, who is joining us by video conference. Welcome to our guests and our panellists.
There will not be opening remarks from our friends from Infrastructure Canada this evening, so we will go right into a period of Q&A, starting with the deputy chair, Senator Miville-Dechêne.
[Translation]
Senator Miville-Dechêne: Thank you very much for accepting our invitation. I assume you are familiar with the bill we are discussing. What are your thoughts on it?
Is this bill necessary for the federal government to do its fair share of the rehabilitation work on the Chignecto Isthmus?
Annie Geoffroy, Director General, Regional Programs, Operations and Engagement, Communities and Infrastructure Programs Branch, Infrastructure Canada: Thank you for the question. The Government of Canada is in the process of deciding its position on the bill. As an Infrastructure Canada official, I cannot say anything further about our position for the time being.
Senator Miville-Dechêne: From your understanding, is the Chignecto Isthmus now under federal jurisdiction?
[English]
Rachel Heft, Legal Counsel, Infrastructure Canada: That is a matter that is currently being referred to the Nova Scotia courts, so we don’t currently have a position to put forward to you on that today.
[Translation]
Senator Miville-Dechêne: Okay. Let’s try some easier questions then. What is the status of discussions, negotiations? Have you already decided what has to be done? I assume you are in discussions with the provinces, so what has to be done? How much will it cost? Tell us what you can.
Ms. Geoffroy: Certainly. What I can tell you right now…. Let me provide some context, specifically about the Disaster Mitigation and Adaptation Fund, a program delivered by Infrastructure Canada to mitigate the impact of climate change and ensure that Canadian communities are prepared to deal with climate change now and in the future.
We have worked with the governments of Nova Scotia and New Brunswick to inform them that there was a call for projects last year, which opened in January 2023. We supported them in their application, as we supported various applicants seeking funding under the program.
Senator Miville-Dechêne: How much money is available to those provinces under the fund?
Ms. Geoffroy: It is a national program. There are no specific allocations for provinces or territories.
Communities, provinces, territories, municipalities and Indigenous communities can apply directly to Infrastructure Canada, which then evaluates the projects submitted. The program as a whole has more than $3 billion in funding and was established in 2018.
Getting back to the Chignecto project, the provinces decided to submit a joint application. The applications submitted during the last call for projects are being evaluated right now. Progress is good, on the whole. We have to take the time to do the necessary checks.
Senator Miville-Dechêne: When will you be making a decision?
Ms. Geoffroy: I cannot give you a specific date right now, but I can tell you that we are making good progress.
[English]
Senator Simons: Following up on Senator Miville-Dechêne’s questions, I have heard from some legal authorities that, in fact, since this piece of work is interprovincial and connects two provinces, the declaratory powers don’t matter because it’s already in the federal ambit and the declaratory power is specifically for infrastructure and works that are within one province. I wonder what you think of that analysis.
Ms. Heft: I think it’s fair to say that should the Nova Scotia Court of Appeal or the courts generally find that the work in question is a work that is interprovincial in nature, the courts would determine that it fell within federal jurisdiction, meaning that Parliament’s laws and regulations would apply there too. If that is the case, then the declaratory power would not be necessary and it would have the same effect —
Senator Simons: Is the declaratory power even an option? If this isn’t in one’s province, can you actually use the declaratory power?
Ms. Heft: For greater certainty, it has been used in other legislation where there may be different views as to whether the work in question was, in fact, interprovincial in nature. We have seen the declaratory power used for greater certainty.
Senator Simons: Can you give me an example of where that’s happened?
Ms. Heft: I think a good example would be the International Bridges and Tunnels Act. International bridges by their very nature stretch beyond the limits of a province, and section 5 of the International Bridges and Tunnels Act declares such bridges to be for the general advantage of Canada.
Senator Simons: To be clear, just because something is declared to be for the general advantage of Canada, that wouldn’t necessarily mean that the federal government was on the hook for 100% of the maintenance costs of said thing, would it?
Ms. Heft: When a work is declared to be for the general advantage of Canada, the effect of that declaration is that the work falls within jurisdiction of Parliament for the purposes of laws and regulations. If you again used the example of the International Bridges and Tunnels Act, all of those international bridges are declared to be for the general advantage of Canada. But, of course, we could see examples just in the city of Windsor, for example. We have the Ambassador Bridge, which is a privately owned bridge for which Canada has no financial responsibility, whereas along that same river there is the Gordie Howe International Bridge Project, where the government has determined that the construction of an additional international bridge is warranted and the government has taken financial responsibility for that federally owned infrastructure.
Senator Simons: That’s a political decision, not a legal one?
Ms. Heft: That’s correct.
Senator Simons: The challenge is the Senate cannot bring forward a bill that costs the government money. If we believe that this is a bill that would require the government to pay for the full cost of correcting the challenges of the isthmus, it would be inappropriate as a Senate bill. If we believed this bill doesn’t do that, then what does this bill do?
Ms. Heft: The declaration found in the bill would have the effect of ensuring that if there are laws, for example, that target dykes or other infrastructure of that nature, that those laws would be applicable to this infrastructure, to those works.
Senator Simons: It wouldn’t require the federal government to pay for more than they’ve already agreed to pay?
Ms. Heft: That’s correct.
Senator Simons: It would simply strip the provincial governments of Nova Scotia and New Brunswick of any authority over the infrastructure, which is precisely what the government gave them back at their request in 1970, right?
Ms. Heft: Legislative authority, yes.
Senator Simons: Thank you very much.
Senator Quinn: Thank you for being here this evening.
I want to pursue the same type of questions as my colleague Senator Simons. As I understand the court case, it is looking to see if, in fact, the Chignecto Isthmus area is a critical corridor connecting transportation and communication structures that could be affected by change. It’s looking at bringing it into a single jurisdictional function. My question is, because we had a joint application — I’ll come to that in a second — is the jurisdiction split between Nova Scotia and New Brunswick today? Is each responsible for the areas in their particular jurisdiction today?
Ms. Heft: If I understand your question correctly, you’re questioning the jurisdiction over land. The jurisdictional matters that are set out in sections 91 and 92 of the Constitution don’t relate to geographical locations.
Senator Quinn: [Technical difficulties] — pick up on the validity of this bill. As I understand it, we’re looking at section 92(10)(a) in the court case. That’s a legitimate process. It may come to the decision that the federal government needs to be involved in this.
But I also understand that section 92(10)(c) is a valid tool used in different projects in the country that says that it’s Parliament — it’s not the Senate; it’s Parliament, not the upper chamber or the lower chamber — that has to be involved in this. Parliament will decide whether it is a valid tool to be used by the federal government, as it’s been used in other cases. That simply gives the federal government the prerogative on how to proceed. My understanding with respect to funding is it has no influence on what the funding decision may be. Currently, under DMAF, the Disaster Mitigation and Adaptation Fund, there are 50‑cent dollars on the table. Would you agree with what I’ve just said, that this gives another tool from the Constitution, section 92(10)(c), for the federal government to use? Yes? No?
Ms. Heft: Separate from the determination under section 91(10)(a), which is currently before the Nova Scotia Court of Appeal, section 92(10)(c) would allow Parliament to determine whether the works in question are under legislative jurisdiction of Parliament.
Senator Quinn: They’re separate tools, maybe getting to the same point. Regarding section 92(10)(a), as I understand it, the court case — I understand there have been filings and things like that — actually hasn’t started yet. We had witnesses last week who told us that. As that process unfolds, however long that takes, a judge will make a decision. As I understand it, the difference with the declaratory power is that the federal government will make the decision because Parliament has given them the ability to do so. You have the ability to make a more immediate decision versus a court process that may take longer — I would assume longer — but in both cases would end in the same place. It’s taking two tools that aren’t related to get to the same point. Is that fair?
Ms. Heft: Yes, that’s a fair assessment.
Senator Quinn: With respect to funding, my understanding is that the provinces have submitted their application. You said it’s a joint application. They’ve negotiated, but the Premier of New Brunswick and the Minister of Public Works in Nova Scotia last week told us the negotiations have come to a bit of an end because, as I understand the program, DMAF can only go up to 50%, other than in exceptional circumstances. For example, if it’s an Aboriginal project, it could be eligible for up to 100%, but this one is up to the 50% limit.
My colleague Senator Clement talked about the importance of negotiations last week. The declaratory power being used now would allow the federal government to decide whether it will be 30-cent dollars, 50-cent dollars, or whether they will negotiate a bit further if that’s how they chose to proceed, but it gives them that flexibility to negotiate further. Is that correct?
Ms. Geoffroy: What I can say specific to the DMAF program is that, within the parameters and policies we have for projects from the provinces, we are capped at a 50% federal share. If there are any impacts on the declaratory power, I couldn’t say, but we are very much working within the policy authorities that we have with the program. You are correct that, for Indigenous projects, we can provide 100%.
Senator Quinn: The idea is to move sooner — because we’ve been studying the effects of climate change on infrastructure in different mini areas of the country. We know that events are getting more frequent, more intense, et cetera. We need to start doing something.
One of the concerns I have and why the declaratory power is on the table is it allows a decision to be made sooner and gives that flexibility, should Parliament decide to agree, and the federal government can act accordingly. It also requires, under federal jurisdiction, that there be a much more comprehensive Aboriginal consultation, as an example of federal regulations coming into play — not to mention fisheries and environment and all those things that might be sparked. On the Aboriginal side, federal consultation processes are required. That’s one of our concerns with respect to relationships with Aboriginal communities in either province versus that Aboriginal relationship with the Crown and the consultations that are required. Do you think that this would be helpful to start that process sooner rather than later?
Ms. Geoffroy: Infrastructure Canada is responsible to ensure the federal requirements around environmental assessment and duty to consult, so Aboriginal consultations, are met for projects where we are providing funding from the department.
Senator Quinn: We’ve used the declaratory power recently in the Samuel De Champlain Bridge. It was declared in the interest of Canada. I agree with that because of the transportation in particular that occurs on that bridge. The federal government paid the entire costs of that under the declaratory power. It also absorbed the loss of revenue from tolls. In total, it’s about $7 billion. The Gordie Howe International Bridge connects Canada to the U.S. Under the declaratory power, Canada is paying 100% of that project. Other projects have taken place. You mentioned connecting tunnels and the railway acts. Why would this connection not be considered as eligible to be looked at under the declaratory power?
Ms. Heft: The declaratory power really is a determination of what laws apply or the jurisdiction for which the laws will apply, so which legislature’s laws will apply.
With respect to section 92(10)(c), should a work be declared for the general advantage of Canada, it simply means that Canada’s laws, including the Impact Assessment Act, for example, would apply, but it doesn’t determine funding. The funding is not associated with the declaration of being to the general advantage of Canada.
Senator Quinn: Right. It gives the tool to cabinet, quite frankly, to decide whether they want to involve themselves in further negotiations, to up the ante in that regard. Also, doesn’t it allow or provide the ability of the federal government to recognize this as in the general interests of Canada? If the Samuel De Champlain Bridge is in the general interest of Canada, surely the only connecting passageway, if I can call it that, is in the general advantage of Canada, given the volume of trade, given the volume of people passing down to Halifax for services, and given the trade into Newfoundland and P.E.I. Would that not make it in the general interest of Canada?
Ms. Heft: A declaration under section 92(10)(c) for the general advantage of Canada is a determination by Parliament that the federal laws will apply to a work. It has never been interpreted to be associated with national interest per se. The courts have never interpreted the language to say that once something is in the national interest, that it should be declared for the general advantage of Canada.
Senator Dasko: I want to continue to pursue these lines of questioning that my colleagues have started. Under the disaster fund that you spoke about earlier — I just want to be clear — right now, the two provinces have put in a proposal. I understand that proposal has been accepted? Is that correct? And has the federal government said that they’re going to put in 50% and that the other provinces are taking the other 50? What is the status of that proposal? Essentially, that is what I’m asking.
Ms. Geoffroy: Under DMAF, we opened an intake in January 2023. It closed in July 2023. We received a few hundred applications, to be honest. We are currently assessing those applications. Everything that was submitted is being assessed against our eligibility criteria and against our merit criteria. That process is very well under way, and it is advanced. That is where we’re at in terms of all applications, including the application from Nova Scotia and New Brunswick for Chignecto.
Senator Dasko: So have there been negotiations with the two provinces around the proposal? Has that taken place?
Ms. Geoffroy: We do not negotiate. What we do during the intake process, while it’s open, is support all applicants if they have questions about the application process or questions about the documents to provide. We do offer that support to everyone who requests it.
Senator Dasko: In terms of the distribution of the funding for these projects, do you always do 50%? Is that kind of a standard part of this program? It’s 50%? It’s not 20% or 30% or whatever? It’s always 50? If you approve the proposal, it’s 50%?
Ms. Geoffroy: It depends on who the applicant is. For provinces, the federal funding can go up to 50%. In this case, the Provinces of Nova Scotia and New Brunswick have requested the full 50%. For municipalities, we can go up to 40%. In Indigenous communities, as I mentioned earlier, we can go up to 100%.
Senator Dasko: Essentially, they would be confident to get 50% from this fund?
Ms. Geoffroy: It is a merit-based program, so it is not assured that an applicant will succeed because it is a program that obviously is seeing an increased frequency of natural disasters across the country. It’s very popular. But we do assess all applications against the same criteria, and we also take regional distribution as part of our advice.
Senator Dasko: I want to clarify a few things with respect to the declaratory power. We’ve heard about some examples of this arrangement for other projects. I just want to confirm that the Gordie Howe International Bridge is one. The Samuel De Champlain Bridge was another. Can you name some other projects that came under the declaratory power?
Ms. Heft: It isn’t projects that are generally declared; it’s matters. However, you’re right with respect to the Champlain Bridge that there was a declaration to the general advantage of Canada. It was a federally owned bridge at the time of the declaration. At that time, it was realized that reconstruction of the bridge was needed. The declaration had the effect of ensuring clarity around what laws and regulations would apply. It was, in fact, included in — I don’t have the bill here, but in the Budget Implementation Act of the time.
Senator Dasko: I was actually going to ask about these — I call them projects. I don’t know what other word to use. A bridge to me is a project. Did these projects actually flow from pieces of legislation just like this one?
Ms. Heft: No.
Senator Dasko: No? But you said the Champlain Bridge was in the budget bill?
Ms. Heft: The New Bridge for the St. Lawrence Act was included in the Budget Implementation Act. That was after the announcement that the bridge would be funded by the federal government, so it came at the same time as the funding. However, the bridge was already owned by the federal government. The federal government already had financial responsibility for that bridge.
Senator Dasko: How did the Gordie Howe International Bridge project come about? Was that a piece of federal legislation that might be comparable to this one? I’m trying to understand.
Shawn Hibbard, Director General (Major Bridges and Projects), Investment, Partnerships and Innovation, Infrastructure Canada: Perhaps I can address some of the questions.
My colleague already mentioned that the Gordie Howe bridge falls under section 5 of the International Bridges and Tunnels Act, which basically says that international bridges and tunnels are declared for the general advantage of Canada. Other acts were enacted to facilitate the project. The Bridge to Strengthen Trade Act was implemented for the Gordie Howe International Bridge. That basically allowed the minister to enter into agreements to facilitate the project.
Why was this project perhaps an important one for the government? As you probably know, the Windsor-Detroit Gateway is a key corridor.
Senator Dasko: I’m from Ontario. I know all about it. I think it would be a great place to put your money.
Can you name some other — I’ll call them projects; maybe there is another name for them — projects that have flowed from this mechanism?
Ms. Heft: I would be happy to name other examples of when the declaratory power has been used; however, I would note that they are not associated with funding from the federal government.
By way of example, in 1995, when the Canadian National Railway was privatized, the CN Commercialization Act included, at section 16(1), a declaration. I’ll read it for you:
The railway and other transportation works in Canada of CN, of every subsidiary of CN and of every corporation formed by any consolidation or amalgamation of any two or more of those corporations are hereby declared to be works for the general advantage of Canada.
That had the effect of ensuring that all of CN Rail’s various railways, or lines of rail, whether they were intraprovincial or interprovincial, were all regulated under federal railway legislation, such as the Canada Transportation Act and the Railway Safety Act, but it, in fact, happened at a time when CN was being privatized and the government was explicitly no longer financially responsible for the CN railway.
Senator Dasko: The Premier of New Brunswick was here and spoke as a witness. He said he is expecting the federal government to pay for the whole project under this initiative. He said that quite clearly within the first 30 seconds of his appearance at committee. He has that assumption. But you’re saying there is a lot of variation in the way this tool, this mechanism, is viewed with respect to funding. Is that what I’m hearing?
Ms. Heft: That’s correct. The declaratory power and financial responsibility and funding are not generally linked.
The Chair: I will take liberties as chair to ask one simple question. I’ve been hearing the exchange with my colleagues, particularly with Senator Dasko. How much political consideration goes into the decision on the percentage the government will actually fund on these infrastructure projects? I’ve heard your methodology of how you come to 50% and 40% and 100%, but how much of it is actually, at the end of the day, a political call rather than a criteria chart that the ministry applies?
Ms. Geoffroy: We provide policy considerations to our ministers when we stand up new programs. The federal cost‑share that I mentioned for the DMAF is very similar to that which we find through other contribution programs.
The Chair: I understand what you do, but I’m asking how much political consideration goes into the decisions. Obviously, you observe those decisions.
I was part of a former government in the Senate that was involved in the building of the Champlain Bridge. I have seen this exercise happen between my provincial government and my federal government at the time, the federal government trying to balance a budget and the provincial government saying, “Hey, we can’t afford $10 billion of an infrastructure of this magnitude.” In the end, common sense came in, and Ottawa understood that, fiscal challenges aside, we’re a country, and there are certain infrastructure projects, unfortunately, that can’t be covered even by a province as large as Quebec, let alone small provinces like Nova Scotia and New Brunswick. Clearly, they demonstrated that this piece of infrastructure is very important to them.
Look, I won’t put you on the spot any more than I have. I just wanted to express those views. I don’t have a horse in this race like I did with the Champlain Bridge. I was pulled in two directions because I was a senator with a government in office at the time, and I had my interest as a Montreal senator. I understand that, at the end of the day, everything is political and everything is local when it comes to these issues.
Senator Clement: Hello. Thank you for being here.
I’ll start where Senator Dasko left off and, Ms. Heft, your response to her that there is a difference between the declaratory power and the funding. Except, to me, they seem really connected. I guess that’s what I’m struggling with.
In my experience as a lawyer, when you end up in court, and a big chunk of this is before the courts in Nova Scotia, it’s because there has been a failure somewhere in terms of negotiations and in terms of settling things. You go to court because things have not worked out. I understand that you can’t comment on that. I’m just putting that out there.
I’m wondering if this project, which is undeniably critical and important, is just a sign of the times. Right? Infrastructure has become so expensive and difficult logistically to manage for municipalities and provinces that this is just going to be what massive projects do: They throw up their hands and say, “I need declaratory power because I need the feds to step in because this is too big for us to manage.” Climate crisis is too big for smaller entities to manage. I would appreciate your comment on that.
Can you go even further? If we allow this process to go through, what then happens to the municipalities and the provinces that still want to be involved in the project because they represent the communities that live through these challenges but now the feds are running it? I’m just wondering if this is just the tip of the iceberg, because climate crisis is beyond managing for smaller entities. Once you do that, what are smaller entities going to do to be part of the process?
Ms. Heft: With respect to the process — coming back to the declaration being about the laws that apply and therefore potentially which legislation and which processes apply — there will be an effect as a result of the declaratory power. For example, the Impact Assessment Act would apply. Whether this project would be reviewed under that act may be a different question. It could apply if it meets the criteria to be considered as a project. That would mean that the process, the impact assessment agency and the various different consultations required to meet the Crown’s obligation to Indigenous peoples would indeed be engaged as a result of the declaration. However, who would lead the project, and who would make the submissions? That would still be a matter that is determined primarily by the ownership of those works or of the area in question.
Senator Clement: So the feds?
Ms. Heft: The federal government would not own the works by virtue of the declaration to the general advantage of Canada, so not necessarily.
Senator Clement: But would they lead by virtue of understanding the federal legislation and the application of the federal legislation?
Ms. Heft: The impact assessment agency would be involved, but the declaration itself would not result in the federal government having to put forward the project. That may still be whoever proposes the project based on the ownership of the land, the ownership of the works or other factors. The declaration itself does not have the effect of making those works federal property.
Senator Clement: Thank you.
From an infrastructure perspective, can you comment on managing the size of these projects and what that looks like in the future?
Mr. Hibbard: If you like, I can speak to the experience on the Samuel de Champlain Bridge Corridor project in terms of a project that was delivered by the federal government and what that meant for the involvement of municipalities and the province, et cetera, if that’s of interest.
With respect to the Samuel de Champlain Bridge Corridor project, even though the federal government was responsible for the project, as we mentioned earlier, there was the original Champlain Bridge which was owned and operated by the federal government for 30 years, and the new bridge simply came and replaced that bridge. Nevertheless, there was the New Bridge for the St. Lawrence Act, which provided the minister with the ability to enter into agreements, et cetera. The government took it upon itself to ensure that it respected the will of the municipalities and the province. We entered into collaboration agreements that spelled out the roles and responsibilities of each and ensured that consultations with communities and those different organizations were carried out. There was broad collaboration in that particular project despite the fact that federal legislation applied.
Senator Clement: I’d like to get back to the money thing. When I was the mayor of Cornwall, I found it astounding how much an infrastructure project would cost for a small Ontario city. Do you think there is enough money to do this other than the federal government doing it? Even when you look at the Disaster Mitigation and Adaptation Fund, it doesn’t look like a sufficient amount of money to deal with all these projects. It just doesn’t. Again, it just feels like everything is connected here between the money and the size of the project and how big it is for two provinces to manage.
Ms. Geoffroy: It’s hard for me to talk generally about the cost of infrastructure. I think we have seen an increase, obviously, in the last few years as well that has put pressure on all levels of governments, right?
At Infrastructure Canada, we want to make sure that we invest in infrastructure that will be able to withstand those climate change impacts, not only in the short term but also in the long term. We have been fortunate enough to have a pretty good amount of money for the Disaster Mitigation and Adaptation Fund, and the Government of Canada has also launched the National Adaptation Strategy as well where Infrastructure Canada will be able to offer some climate tool kits for municipalities and other resources that municipalities and provinces can use to make better decisions on how to move ahead and go forward with their infrastructure.
I think that, historically, infrastructure programs have been oversubscribed in general.
Senator Cuzner: On many marine issues, they seem to pivot on the high-water mark and on the high-tide mark. I’m thinking about when Donkin mine was reopened. It’s a submarine mine. Occupational health and safety would have been a federal responsibility from the high-water mark out under the ocean, and we had to pass a piece of legislation in the House in order to turn that over to the Province of Nova Scotia. If there is an abandoned boat or dead whale in a navigational channel, it’s federal responsibility. If the whale lands on somebody’s shores, it’s their responsibility to clean it up. It sort of hedges on the high-water mark and on the high-tide mark.
We had a sea wall in Gabarus, a small community. It sort of goes back to what Senator Clement was talking about at our last meeting. There was a federal investment in the seawall that probably took place back in the 1960s. We don’t know what the programs were like back then, but they came in and built a seawall there. It was really run down and dilapidated, and they were looking for money to refurbish the seawall. The federal position in 2013-14 was that it’s coastal, it’s above the high‑water mark, so it would be a provincial responsibility. They fought with the responsibility. It ended being the municipality that came in and said, “We want to save this community. It’s an economic development thing.” They initiated an economic development thing where we came in and partnered one third, one third, one third.
That is a long way to get to a question. Does the high-water mark in this particular stretch of land have an impact on jurisdiction or responsibility?
Ms. Heft: I wasn’t tracking all of the examples that you provided, but I would say that the matters under section 91 and 92 of the Constitution, the division of powers, whether it’s a matter of federal jurisdiction under section 91 or provincial jurisdiction under section 92, are not primarily land-based. They’re not geography-based. They’re matters, descriptions of matters, and in this case, works and undertakings, and in some case, matters related to criminal law. Of course, now it’s all escaping me.
The high-water mark with respect to jurisdiction over a work or an undertaking and whether that work or undertaking is intraprovincial or interprovincial, the high-water mark has not been interpreted to be determinative of the interprovincial or intraprovincial nature of a work or undertaking.
Senator Cuzner: Are there many other examples of coastal protection that would have been supported by the infrastructure program?
Ms. Geoffroy: Specifically the Disaster Mitigation and Adaptation Fund?
Senator Cuzner: Yes.
Ms. Geoffroy: Not of the magnitude of the Chignecto Isthmus. We do have some projects. There’s a coastal adaptation project in Surrey, B.C., that we are providing funding to. That’s the one that comes to mind. Again, it’s not the same magnitude as the Chignecto Isthmus.
Senator Cuzner: The funding formula there would be?
Ms. Geoffroy: That one was a bit complex because there were some provincial assets, some municipal, but the vast majority of the project was funded, around the 40% mark.
Senator Robinson: I’m interested in when something is considered in the general interest of Canada. I come from Prince Edward Island, and I probably have a much different perspective than people from Ontario or perhaps other more politically valuable places in Canada.
I wanted to take a moment and point out that, in Atlantic Canada, it’s like a pan-Atlantic kind of system. As a Prince Edward Islander, I look at Halifax, and I see a Port of Halifax where we ship potatoes from Prince Edward Island to Indonesia. I see a Port of Halifax where we ship soybeans and grain and where we receive fertilizer. We have to go to Nova Scotia to buy soil amendments that are only mined in Nova Scotia. If we were to go further, it would cost us a crazy amount of money. I see the IWK and other significant health facilities that Islanders rely on. I see the value of tourism. I see the university. I went to University of Nova Scotia. My daughter will go to the University of Nova Scotia. My son goes to university in Sackville, which hopefully won’t be under water too soon.
I wanted to take a moment and try to convey to you folks — none of you are from Atlantic Canada, I assume. No. It is definitely in the interest of the Canadians who live, I would say, east of Ontario, because we ship a great deal of product from Quebec through the Halifax port as well. I look at soil health, and Prince Edward Island has the only federally inspected beef plant. If we lose the land link to Nova Scotia, that will decimate their ability to send animals to slaughter. It’s such an incredibly important piece of infrastructure for us.
Then I’ll go to a selfish Prince Edward Island position. I’ve heard you speak of the magnitude of the potential subscription to DMAF. You mentioned that from January to July, you received how many?
Ms. Geoffroy: I’d say around 300 applications.
Senator Robinson: You told us at the beginning that the funding envelope is $3 billion.
Ms. Geoffroy: The original envelope was $2 billion. It has been topped up. Some projects have been approved, so have taken money from that envelope, but we have just under $1 billion left for projects that were submitted in that recent intake.
Senator Robinson: What would be your guess with the 300 applications that you have received, plus this rather large project of the Chignecto Isthmus? What’s going to happen to Prince Edward Island when we experience another Fiona? On my farm, we lost seven buildings and tens of thousands of trees. We saw bridges destroyed. There was a comment about the frequency and intensity of weather events, and we cannot possibly overstate that. What will happen if this money goes towards the Chignecto Isthmus? Are we going to be able to fund all of those other probably fairly high-priority projects in the 300 that you received?
Ms. Geoffroy: As part of our consideration and advice that we bring to the table, especially as we assess the projects and when we give our advice on the results, we do take into account regional distribution. That is an important piece. We will have to see what the result of the decisions is on this latest intake, but regional distribution is an important point.
Senator Robinson: When you say “regional distribution,” do you mean that you will try to share it equally amongst all of the regions?
Ms. Geoffroy: What I can say is that as part of our advice that we will provide, we will look at ensuring our recommendations include funding for proponents and communities across the provinces and territories. We will also take into account projects that have been approved and are up to date under the program as well.
Senator Robinson: I’m confused by your answer, but I’m not sure I’m going to get any better clarity on it.
I’m looking at Atlantic Canada and saying that when Fiona made her way through Atlantic Canada and when we look at Dorian and what Dorian did, there were certainly heavy impacts all throughout the entire region of Atlantic Canada. Are you saying the funding will be 20% for this region, and 50% for this region, and trying to make it equal per capita, or are you going to be able to prioritize areas that are higher risk, with greater fragility and vulnerability?
Ms. Geoffroy: When we assess projects, especially when we look at the merit criteria, so the impacts of a hazard on the population at risk of the specific project, how our investment would help increase the resilience in that region, the return on investment of our funding, since DMAF is a merit-based program, those merit criteria are what we use when we provide our advice. In addition to that, regional distribution, as I mentioned, is also taken into account, but we do not have set percentages by province or territory.
Senator Robinson: How do you determine return on investment?
Ms. Geoffroy: I can provide you with that information. I don’t have it handy with me. We do have a formula that we provide the applicants in our applicant guide. It is on our website, but I would be happy to provide that to you after the session.
Senator Robinson: Thank you.
Senator Miville-Dechêne: I need some clarity. You were talking about clarity, Ms. Heft, at the beginning. If I understand correctly, the Samuel De Champlain Bridge was declared of general interest to Canada because it was not clear that it was, considering it doesn’t go through an interprovincial border. Am I wrong to think that?
Ms. Heft: I can’t speculate about the motivations for the declaration, but as a federally owned structure that was being reconstructed, so the second construction of that bridge, the effect of the declaration was to determine clarity on which laws would apply to the construction project.
Senator Miville-Dechêne: I’m sorry; this question has been asked, but by declaring the isthmus to the general interest of Canada, what does it do? Apart from saying that the federal laws apply, what else does it do?
Ms. Heft: That’s all it does. It brings the work within jurisdiction. It’s a legislative jurisdiction determination.
Senator Miville-Dechêne: I’m a bit confused, because when I asked you the first question — and maybe because it was in French — you said you couldn’t say if the isthmus was under federal jurisdiction because it was in front of the tribunal. But it seems to me this isthmus, and correct me if I’m wrong, is clearly under federal jurisdiction.
Ms. Heft: The isthmus itself is land.
Senator Miville-Dechêne: Not the isthmus, the infrastructure.
Ms. Heft: The work, the infrastructure.
Senator Miville-Dechêne: Maybe I didn’t ask my question correctly.
Ms. Heft: Perhaps what you’re suggesting is that your interpretation is that the works themselves are interprovincial and therefore should be determined by the Nova Scotia Court of Appeal to be a federal jurisdiction. I think that’s the position of Nova Scotia before the court, as I understand it, but that has not been determined as of this date.
Senator Miville-Dechêne: The federal government is not admitting that this work is a federal jurisdiction because it doesn’t oblige them to pay. Since it’s interprovincial, isn’t it clear that it’s a federal jurisdiction?
Ms. Heft: At this stage, I believe Canada has not put forward its position in the court.
Senator Miville-Dechêne: But isn’t the court also supposed to decide if the federal government pays? I thought it was about that too. It’s just about jurisdiction?
Ms. Heft: That’s correct.
Senator Miville-Dechêne: Okay. Sorry.
The Chair: I remind everyone the Senate proceedings are often cited in various court cases, so your opinion is a very important one. It could be even more important.
Senator Miville-Dechêne: Thank you very much, Ms. Heft. I’m a bit slow.
The Chair: The chair tries to be benevolent with my colleagues. Can we share the last four minutes, Senator Quinn and Senator Simons, amongst yourselves on second round?
Senator Quinn: I’ll be quick. I want to know if the general advantage of Canada, as per section 92(10)(c), is a valid tool in the toolbox if the Constitution for Parliament to invoke? Is it a tool available to Parliament?
Ms. Heft: It’s a tool available to Parliament to determine legislative jurisdiction, yes.
Senator Quinn: Therefore, it’s a policy decision. Parliament will make the decision, and it’s a policy decision. For the federal government, it may be a policy decision, and it may be a political decision, getting back to what the chair was alluding to. But it is a valid tool?
Ms. Heft: Correct.
Senator Quinn: If the Champlain Bridge were already under federal jurisdiction, I would note the old bridge is still standing. The new bridge wasn’t built yet to determine whether it was owned by the federal government or not. Why did they use the declaratory power if you say it was owned by the federal government? Why did they bother using the declaratory power? Before you answer, having run a port for a number of years owned by the federal government, when I did a project in the port, federal environment and consultation, all the same laws apply in the port as it would for the Champlain Bridge, so why would they need the declaratory power?
Mr. Hibbard: Thank you. I’ll go back to what was responded earlier. It was for clarity. You use the power to ensure that you’re getting legislative clarity. We know that federal laws would apply. It provides clarity not only to all the stakeholders but in this case it was a P3, so it also provided the market with clarity.
Senator Simons: I want to ask about clause 7. I worked closely on Bill C-69 when it was before the Energy and Environment Committee. You’ve mentioned a couple of times, Ms. Heft, that were this bill to come into force, the isthmus works would be subject to the Impact Assessment Act.
I have two questions. First, wouldn’t they already be subject to the Impact Assessment Act because they’re interprovincial? Second, clause 7 of this bill would allow the Governor-in-Council to exempt any works on the dyke from any kind of environmental assessment or any kind of environmental approval or authorization. I’m wondering how that fits with your analysis that the Impact Assessment Act would come into force, and, in fact, if a future federal government were to exempt any of the works on the isthmus from any kind of environmental assessment, whether that might have an impact on the people of Nova Scotia and New Brunswick in a way that they might not like or anticipate.
Ms. Heft: Should the dyke works targeted or declared under this legislation be declared, should this legislation come to pass, it would mean that federal law applies to the infrastructure, to the works, and that would include the full suite of federal laws which would include the Impact Assessment Act. Of course, the Impact Assessment Act does not apply to every project. There are determinations in the act as to whether the project applies.
Senator Simons: Provincial works and works that affect waterways are covered by the Impact Assessment Act.
Ms. Heft: That’s quite possible, yes.
Senator Simons: I have that act tattooed on my back. I’m wondering about the exemption powers in 7(1) and 7(3), which are retroactive. Would my reading be correct that this would mean that the government could exempt any works on the isthmus from typical environmental assessment and approval even if that isn’t what the provinces wanted?
Ms. Heft: Clause 7 of the proposed legislation is a Governor-in-Council power to exempt from various legislation permitting requirements and approvals under federal acts, that’s correct.
Senator Simons: That’s extraordinary, because this is an environmentally sensitive piece of land. A bridge over the water is one thing. We’re talking about marshes, wetlands, places where birds nest, an environmentally sensitive piece of land. It seems extraordinary to me that this bill would give a government the power to exempt itself from any environmental assessment process.
The Chair: On that comment, colleagues, we will come to an end.
On behalf of the committee, I want to thank officials for being so generous with your time and giving us fulsome answers. We appreciate that.
Colleagues, for our second panel, we are pleased to welcome experts in constitutional law who are joining us via video conference to offer their thoughts and views. We have Nicole O’Byrne, Associate Professor, Faculty of Law, University of New Brunswick; Andrew Leach, Professor, Faculty of Arts (Economics) and Faculty of Law, University of Alberta; and Emmett Macfarlane, Professor, Department of Political Science, University of Waterloo.
Welcome, and thank you for joining us this evening. We will first have opening remarks, five minutes, from Professor O’Byrne, followed by Professor Leach and Professor Macfarlane, followed by Q & A from my colleagues.
Nicole O’Byrne, Associate Professor, Faculty of Law, University of New Brunswick, as an individual: Good evening, everyone. I’m in Wabanaki territory, where the Chignecto Isthmus has been an integral transportation corridor for both Indigenous and non-Indigenous people since time immemorial. It is apt, I suppose, that we’re having this conversation this evening.
I sent in some written background information, so I’ll highlight a few points in the time that I have for this opening statement. My comments are coming as a constitutional historian who, believe it or not, has been studying federal-provincial cost-sharing agreements for 20‑plus years. Most people find me very dull. I’m thrilled to be here this evening.
I’ll start by saying that section 145 of the British North America Act, 1867, makes it clear that a railway connecting Halifax to Quebec was a condition for Confederation for the provinces of Nova Scotia and New Brunswick. That’s important to keep in mind. That’s the big picture here. This was important in the 1860s, and the importance of this transportation corridor has not diminished over the past 150‑plus years. The challenges facing the region have arguably escalated, given the reality of climate change, et cetera, which you’re very familiar with. I’d like to point out that the federal government assumed the burden for that railway construction in the 19th century in order to make that Confederation pact.
My second point: In the 1940s, the federal government assumed primary financial responsibility for the Maritime Marshland Rehabilitation Act, like the Prairie Farm Rehabilitation Act in the Prairie provinces. In the context of the times, it was thought that individual provinces could not handle these financial burdens. With these large challenges — whether it be environmental crises, drought we saw in the prairies in the 1930s or with marshland and the dykes that needed a lot of work in that time period — the federal government stepped in and took on the bulk of the financial responsibility. The provinces were deemed to not have the fiscal capacity to do so.
My third point: Section 92(10)(c), a declaration for the general advantage of Canada, has been used nearly 500 times since Confederation, mostly for railway projects and large infrastructure projects — most recently, the Samuel De Champlain Bridge, where the federal government paid for the entire project and covered the entire cost.
My fourth point: It is Parliament’s sole decision to make a declaration under section 92(10)(c). It is entirely a political decision. It is not reviewable by the courts. We got used to the Charter since 1982 and that dialogue model going back and forth, but we’re in another section, in another part of the Constitution here, where that is not the case. These decisions are not reviewable by the courts. The reference case that’s going through in Nova Scotia on section 92(10)(a) is a completely separate issue from what we’re discussing tonight, which is section 92(10)(c).
My fifth point: The formula for a cost-sharing project is a completely separate consideration from the decision to make the declaration for the advantage in the first place. I’ll give you two examples of the variability in these cost-sharing agreements.
First, when they set up Medicare in the Canadian provinces, you have cost-sharing dollars. The federal government started off offering 50-cent dollars. A lot of the provinces, especially in Atlantic Canada, said, “That is such a big public policy program. We cannot bear the financial burden of it.” In New Brunswick — and I’ve written a paper on this — the federal government paid almost 90% to get that program going. They paid 92% in Newfoundland, and Nova Scotia was close to 90% as well. So the federal government has been known to deviate from that 50-50 first offer if and when it needs to do so for the financial interest to make sure that these programs are actually doable for the general advantage of Canada, as it were.
Second, the Maritime Marshland Rehabilitation Administration. The provincial government for that program of New Brunswick and Nova Scotia was only responsible for organizing land owners to ensure adequate drainage and encourage suitable land use. That was nowhere near 50-50. At the time, there were a lot of other programs going on. The Northern Conservation Board in Saskatchewan, for example, was 50-50. There were tables and what not. I can show you that if you’re interested. But there is a lot of variation in how this works.
I will just end by saying what I say to my students. Does history matter in constitutional law? Of course, I like to think it does. I’m a constitutional historian. The Constitution is not an ordinary statute. It has to be interpreted in a broad and purposive manner, in which the historical context is kept in mind. Here, that promise of section 145 of the British North America Act, 1867, and how Canada even came to being was predicated on the transportation corridor linking Halifax to Quebec. We can’t lose sight of that.
With that, I will pass this over to one of my esteemed colleagues. I look forward to hearing what they have to say.
Andrew Leach, Professor, Faculty of Arts (Economics) and Faculty of Law, University of Alberta, as an individual: Thank you, senators, for inviting me to testify before your committee.
[Translation]
I am pleased to be joining you virtually from Edmonton, land covered under Treaty No. 6.
[English]
The bill before you today — Bill S-273 — declares the Chignecto Isthmus Dykeland System to be for the general advantage of Canada. A plain language reading of these words may seem innocuous, but as Professor O’Byrne mentioned and others have covered already, when included in federal legislation, they invoke one of the most sweeping powers of Parliament: the declaratory power. I have three points focused on that to raise with you today.
First, the dyke system is interconnected and spans the border between New Brunswick and Nova Scotia. As such, it is my opinion that it already falls within federal jurisdiction. Thus, the declaration in Bill S-273 would be of no legal effect.
Second, even if jurisdictional uncertainty exists and is resolved through the declaration, this places no positive obligation to maintain the system or to live up to the history, as Professor O’Byrne just laid out very convincingly. That does not come with the declaration.
Finally, nothing in what follows should be seen as minimizing the crisis that the Chignecto Isthmus faces from climate change.
The former Chief Justice Lyman Duff wrote about the declaratory power in 1929, calling it a power of a “most unusual nature” because it allows the federal government at its own discretion to assume jurisdiction over that which would otherwise fall in the exclusive control of the provinces. When I teach it, I call it a federal super power. It’s not used very often, but it is very much that. As Professor O’Byrne said, we have limited modern-era jurisprudence on it, but courts have never shown a disposition to limit its operation. As Senator Quinn said at the end of the last panel, these are seen as policy decisions which will not normally be reviewed by the courts.
Parliament’s use of the declaratory power is only limited in a couple of ways. It can only be directed at works or undertakings, which is very broad, and those works or undertakings must be, to quote the text, “wholly situate in one province.” The dyke system simply does not meet that test. Even a cursory examination of a map of the integrated system — I cite New Brunswick’s report in my brief, which you’ll have access to shortly — gives that away. The system is integrated across the provincial border and actually spans it.
So, when we think about how courts deal with this, works — physical things — and undertakings — an arrangement under which physical things are used — can fall within provincial jurisdiction under only one circumstance, and that’s what all of section 92 tells you. They are provincial if they are in the province. If they are not wholly within the province, there is no means for them to be provincial.
That system of dykes, aboiteau, culverts, et cetera, lies, as I said, on both sides of the border, and the Mistaouac River water control actually spans the border, so the dyke system is the very definition of “ … a work or undertaking extending beyond the limits of a province …” — to use the text from the Constitution again. The dyke system is “functionally integrated” — to quote from the test that’s been used by the courts in Westcoast Energy to define 92(10)(a) jurisdiction. There is no sense in which the two systems could operate effectively or be updated independently of one another. They must be jointly administered. It’s a federal work, in my opinion.
Now, there is precedent for the use of the declaratory power. We heard of where there are works that extend beyond the boundaries of a province. Bell Canada is a great example. The International Bridges and Tunnels Act is another one. Former Chief Justice Lamer, when talking about Bell Canada, talked about it in this way. He said: “ … if it is not completely redundant, must have been seen as necessary to complete Parliament’s control over the enterprise.” Maybe that’s where we are with this legislation today. As Lord Macnaghten wrote in his 1905 decision — I’m taking the history nerd award here from Professor O’Byrne, I think: … inasmuch as the works and undertaking … were not confined within the limits of the province, this part of the declaration seems to be unmeaning.
That’s my opinion today — that the words will take on their plain language meaning and be of no legal force or effect in terms of jurisdiction.
I’ll clarify with two more points to wrap up.
Even if we allow that the jurisdiction is confirmed by the declaration, that brings with it no positive obligation on the federal government to maintain funding or act in any way to support the dykeland system or the isthmus itself. That comes from other sources. Both Senators Quinn and MacDonald in their speeches earlier tonight have spoken about the coincidence of the federal declaration of jurisdiction over the Champlain Bridge and the federal funding of its construction, federal ownership. Those two are just that. Legally, they are coincidences. One need not accompany the other.
Finally, let me close by reminding you quickly that the isthmus is one of those areas of Canada that face substantial threats from climate change. I think we should be able to do better than relying on an aging centuries-old system of reinforcement to guard against the Fundy tides. But that responsibility falls on both the federal government and the provinces and exists regardless of which legislature has jurisdiction over the isthmus dykeland system.
Thank you.
Emmett Macfarlane, Professor, Department of Political Science, University of Waterloo, as an individual: Thank you for having me. I will try to be brief. I wish to limit it to four main points.
First, I believe Bill S-273 is a valid exercise of the federal declaratory power under section 92(10)(c) of the Constitution Act of 1867. The Chignecto Isthmus Dykeland System falls firmly within the recognized category of works historically applied under the declaratory power. An ongoing legal question — as Professor Leach just raised — is whether the dykes are already federal jurisdiction. This may depend largely on whether the courts agree that they should be viewed as a single coherent cross-border system or, alternatively, separate systems that meet at the border. Depending on how the legal question is answered, the use of the federal declaratory power here may be regarded as redundant in some sense, but that, in my view, would not implicate its validity or constitutionality.
Second, the use of the declaratory power does not legally obligate the federal government to proceed with any activity or to fully fund the development of the dykeland system. The declaratory power allows Parliament to assume federal jurisdiction over a work that might otherwise be considered a local work within a province, but jurisdictional authority is exactly that — the power to make laws or policy decisions relating to the matter at hand. Jurisdictional authority would continue the existing options of assuming or not assuming the full cost of the project and to engage in negotiations with Nova Scotia and New Brunswick over the question of costs before any projects proceed.
Third — and further to this point — it is worth noting the broader background context, including the reference question posed to the Nova Scotia Court of Appeal. Committee members may be wondering whether this bill affects that litigation or may itself be subject to judicial review. It’s important to understand that the answers the courts provide on jurisdiction will not result in financial obligations. The dominant strand of modern federalism jurisprudence is one that emphasizes flexibility and the co-operative nature of federalism. The division of powers is considered an exhaustive code for the allocation of sovereignty in Canada, but there are also many spheres of overlapping concern. So, co-operative federalism has emerged as a robust aspect of political practice and intergovernmental negotiations in relations, and courts will generally not intervene to enforce implied or even established funding agreements. In simpler terms, the division of powers is about jurisdiction, not spending. Were Parliament to pass this bill, it is very unlikely to have any legal implications for government spending.
Finally, there have been some discussions of the importance of consultations with affected Indigenous communities, and I think it’s important to state explicitly that the constitutional rights of Indigenous peoples under section 35 of the Constitution Act, 1982 are obligations owed by both the federal and provincial orders of government. Both must respect Aboriginal and treaty rights. Within that vein, whichever level of government holds jurisdictional or decision-making authority over particular projects holds the constitutional duty to consult and accommodate Indigenous interests for First Nations whose lands or rights may be affected. While I’m not in a position to declare that any particular government has a better record upholding those obligations in practice, as a constitutional matter, whether the provinces or the federal government hold jurisdiction does not change the nature of those rights obligations.
I’ll leave it at that for now. Thank you.
The Chair: Thank you, professor.
Senator Miville-Dechêne: Professor Macfarlane, your expertise is constitutional but also political questions, and it seems to me that this bill is a bit at the junction of both. I would like your opinion. You said that it was a sound bill in terms of it can be done and this power can be used. But will this bill change anything in terms of — bills generally have a goal of changing or of doing something that is somewhat concrete. I’m wondering here if you have an opinion or can opine. Since this bill doesn’t do anything in terms of financing, but it can be passed without problems, it wouldn’t be unconstitutional. What do you think politically, constitutionally, of this bill?
Mr. Macfarlane: Thank you.
I think you heard from all three of your guests in this session on the legal issues. I think there are several political aspects to the bill that I might suggest, and one is to bring greater attention to the dykeland system itself and the urgency of the need. While I don’t think the bill can in any way create legal financial obligations, it might place additional political pressure, were it to pass, on the government to proceed with improvements and perhaps to be more generous on the funding side. I wouldn’t try to make any predictions about how the government might respond to that pressure, but I can certainly see how added political pressure might be in place if the bill were to pass.
Senator Miville-Dechêne: Is it the role of legislation to do that?
Mr. Macfarlane: There are no —
Senator Miville-Dechêne: I am just asking him.
Mr. Macfarlane: There are no distinct limitations on the various purposes a piece of legislation may have. Parliament is free to use legislation to hold government to account, to impose direct obligations on it, and I see no reason why legislation could not be used to impose an element of symbolic obligations or political obligations through legal instruments.
Senator Simons: I want to start with Professor Leach. You made a pretty compelling case that this is already, because of the interconnectedness — not just the fact that it crosses borders, but because the infrastructure itself is interconnected — properly to be considered in federal jurisdiction. I wondered if you could explain a little bit more about what legal import you think passing this bill would have.
I want to ask about environmental regulation, because I know, in the other half of your life, you’re an environmental economist, and I know that you know Bill C-69 perhaps even better than I do. My interpretation would have been that this was already subject to the Impact Assessment Act.
I want you to first talk about the force and effect of this legislation and then to talk about clause 7 of the bill, which would allow the exemption of environmental regulations.
Mr. Leach: Thank you, senator.
I think one of the things that really brings it home for me is the New Brunswick report. I cited it in the written brief that you’ll receive shortly. The New Brunswick report talks about raising the systems. Doing that on one side or the other of the border would essentially be of no use. If we’re going to raise the system to keep the tides essentially at bay, doing it over half of the low‑lying areas of the isthmus is not going to prevent the effects that we’re so concerned about, the effects that Professor O’Byrne highlighted in terms of the transportation infrastructure. It works as a joint system. It’s like a pipeline. You can say, sure it goes to the B.C. border and then it continues to Burnaby, but it’s pretty hard for either half of that to work independently of the other. I think that’s the impact here.
I tuned in for your comments in the previous session, and I think they are exactly right that the bill here does purport to exempt. My colleagues can correct me here if I’m wrong, but because of the specific trumping the general, this would be a federal exemption from a more general federal act on the environment assessment side of things, so yes, even insofar as the Impact Assessment Act were to play a role here. This is something we might want not just on changes, but we might also want a regional assessment or a strategic assessment of this area under that act. There is an interesting conflict there, and I’m not sure the reason for having that in clause 7.
Senator Simons: Professor O’Byrne, I loved what you said about this was just like building the railway to the West was part of bringing British Columbia into Confederation. I had no idea this was part of the Confederation deal.
It seems to me that we could all agree that the dyke works are for the general advantage of Canada in the sense that they are good for the country. Can you explain to me if you see any way that passing this bill does anything more than just affirm that the dyke is a good thing?
Ms. O’Byrne: I think that’s interesting. I listened to my colleagues’ answers on this point. Like, so what? You make a declaration, so what does this actually do?
In my opinion, what it does is it removes obstacles from compelling the cooperation on a cost-sharing formula. It does show that everybody agrees that this is part of the national project, right? Which is why I asked everybody to think back to the whole point of Confederation, bringing the different pieces in. There were conditions. Those conditions continue to exist.
If the Chignecto Isthmus goes under water and we have cut off Nova Scotia, that is dire. Maybe they didn’t foresee that in 1867, but they certainly said there are parts of the Constitution where the problems get so big that you actually — that’s why people got into a bigger political unit of Confederation, was to manage the resources that would need to be moved around to tackle these localized problems. It’s in the nation’s interest to do those things.
So sometimes declaring to be for a general advantage of Canada is removing an obstacle and saying to the federal government that this isn’t just a normal default starting point of a 50-50 cost share. It’s not a program like other programs. This is something big. I’ll give, again, that Medicare example. That was so big, and Medicare was supposed to be passed July 1, 1967, to mark 100 years of Confederation. That was going to be our next big project. Well, smaller provinces said, “No way; we can’t afford 50-50 cost-sharing dollars when you have to set up the bureaucracy and the administration of that big kind of program and pay the doctors and deal with all the costs associated. We can’t possibly do it.” So the federal government said, “Okay, we’ll go up to 90% on that to get things going.” It’s a removal of obstacles, which is kind of a different way to think about it, but I think that might be helpful.
Senator Simons: Obstacles are kind of imaginary.
I want to end with a question to Dr. Macfarlane. I was a little frustrated when the officials were here and they said, “The rules say it’s 50%.” I mean, there are no rules. They set it up in the bureaucracy to be that way. There isn’t some kind of magic formula that says that it has to be a split of 50-50 dollars. If the federal government wants to come to the table with more money, they can do that. They can make a new program — or less. I am sorry. Can you comment? Passing this doesn’t compel the federal government to spend any more money.
The Chair: Could we can have a brief response, please.
Mr. Macfarlane: It may add some pressure to do so by bringing attention to it and raising it as a national issue, but, no, it does not compel the federal government to pony up more. The federal government has absolute discretion to pay 100% or to not do anything and everything in between.
Senator Quinn: First, Professor Leach, I’ve been asked to thank you for appearing before Senators for Climate Solutions. Senator Coyle asked me to thank you for that appearance. Unfortunately, I couldn’t be there.
I want to follow up on that last piece in terms of the bureaucracy making something up. Would you agree that when programs are put together, authorities are provided and they give spending limits? In the case of DMAF, the Disaster Mitigation and Adaptation Fund, the spending limit is 50% with the exception of Indigenous programs and another one that is 75%. Do you agree that there are authorities tied to funding programs?
Mr. Leach: I would echo what Senator Simons says. Those are rules that we’ve created for ourselves as far as the government and the bureaucracy can bind itself. They are not rules in the sense of the jurisdictional questions we’re dealing with today.
Senator Quinn: I’ll stick with you, Professor Leach, if I may. That being your view, I happen to know that there are spending authorities established with programs. The DMAF program for this type of project is 50%. Of course, those rules can be bypassed by cabinet having a discussion, especially if they have been given jurisdictional authority over a piece of work. Is the declaratory power not a legitimate tool of the Constitution? Does that not give legitimacy for the policy decision to be made by Parliament, and then the government can decide how to proceed from there with respect to whether they do anything, nothing, or funding?
Mr. Leach: It doesn’t change the government’s spending power at all. They can fund things and do fund things that do not lie at all within federal jurisdiction. They have the authority to fund those up to 100% if they choose to do so. On the other hand, they can have jurisdictions over things that they choose to not fund, not prioritize, not construct and not own. Any of those are within the federal bounds. I don’t think one necessarily follows the other in any way.
Senator Quinn: I would love to have a debate with you later on spending authorities and how that works, being a former CFO.
Mr. Leach: Sure, anytime.
Senator Quinn: This is for all panellists. What do you think the impact is, if any, of the legislature of Nova Scotia passing a resolution that says we support 273? New Brunswick has tabled a resolution. Next week, I understand they are having the final discussion on it and then it’s expected to pass. Does that make any impact on where this bill stands with respect to fed-prov relations, the Constitution and undertaking projects? I will start with Ms. O’Byrne, if I may.
Ms. O’Byrne: Usually when the federal government starts to intrude into the provincial jurisdiction, you hear all sorts of screaming like, “Get out of our hair. We don’t want any federal incursions into our space.” With the provincial consent here from Nova Scotia and then the forthcoming consent in New Brunswick, you have the removal of that. The provinces want this. Again, it’s about removing obstacles.
I try to believe in competitive — look at me; there is a slip — in competitive federalism. I try to believe in co-operative federalism. But on my best of days — Andrew from Alberta is kind of laughing — we always know that there is a bit of a tug of war here. With that provincial consent from both provinces involved, that’s removed. Again, another obstacle removed. I think it’s important.
Mr. Leach: I am thinking about what Ms. O’Byrne said, that the provinces of New Brunswick and Nova Scotia understand that this is something that needs to be co-managed. I read the New Brunswick report in the lead up to this. It talks — as you would never see any other provincial report doing — about managing lands within another province. Of course, New Brunswick has no authority to make those laws to change the behaviour in Nova Scotia, nor the other way around. They need the federal government, but I don’t think the declaratory power in this sense changes that.
Senator Quinn: Professor Macfarlane, do you have any comment on that?
Mr. Macfarlane: I may be more cynical than my colleagues. I think we see the provinces pushing this because of the money issue. That’s a universal trade in intergovernmental relations in this country. The provinces want as little jurisdictional interference as possible and the most federal money as possible. That’s just the political reality of our intergovernmental relations.
Senator Quinn: Thank you.
Senator Dasko: Thank you to our witnesses for being here today. It’s so interesting.
I’m struck by Professor Leach’s comment that this would give the federal government sweeping power and by other comments saying that it doesn’t mean anything and it’s not going to result in anything. We’ve got this, on the one hand, and that, on the other hand. You can comment on that later.
I am interested in the relationship between the court reference that is going on now and the declaratory power. For example, if the court should say that there is no federal jurisdiction here, then can this bill go forward? Would it be valid or not? You would think that if the courts said there is no federal jurisdiction, you couldn’t possibly bring in a bill like this, right? Or not?
Mr. Leach: In the context of a binding or at least a compelling decision or opinion from the Nova Scotia Court of Appeal, these words just take on their plain language meaning. If this is interprovincial infrastructure, then saying it’s for the general advantage of Canada doesn’t change anything. It doesn’t bring it into the federal government’s jurisdiction. It’s already there. It’s maybe the equivalent of a motion in that context.
To Professor Macfarlane’s point, it doesn’t speak to invalidity. There is no attempt to do something outside the powers of the federal government. It’s just invoking a power for the purposes of interprovincial infrastructure. This was true when then-premier Kenney talked about doing it for the Trans Mountain pipeline. To say we will declare it for the general advantage of Canada is meaningless because that pipeline was already federal.
To your earlier comment, it was definitely not meaningless when the federal government invoked it, for example in the Canada Grain Act, to bring all of the grain elevators of Western Canada into federal jurisdiction where they previously had not been. It’s a very sweeping power when used to bring something that would not otherwise be federal into the federal reach.
In this context, my contention is that it would not change because this is almost certainly already federal. It’s already an interprovincial work.
Senator Dasko: Okay. You’re saying that you’re expecting the court will say that it’s federal jurisdiction. That’s what you’re saying, right? That’s what you would expect? If so, what is the purpose of this declaratory power then? Is it just piling on? You have this, you have the court judgment, and then you have the declaratory power. You’re just piling it on, right? Or not?
Mr. Leach: In some cases, for example, the international bridges and tunnels, you say, where does the international bridge end? We don’t really know where it ends and where the provincial roads begin, so the declaratory power maybe comes in and gives a bit more clarity over what parts of the infrastructure are federal. In this case, we know where the dykeland system begins and ends. We can see it on a map. It’s very clear. I don’t know that there is uncertainty here that would be shored up by the use of the declaratory power. If the Court of Appeal were to agree with my opinion, which I would encourage them to do, then I think it’s simply plain language meaning. This is important — perhaps, to use Professor O’Byrne’s words — and it’s part of our national project, but it’s not a code word to a superpower in the way that I described it earlier.
Senator Dasko: Do the other witnesses have anything to add? Professor O’Byrne, please.
Ms. O’Byrne: Thank you very much.
I’d like to remind folks that when you’re talking about the general declaratory power under section 92(10)(c), it is a completely different animal than what we’re talking about in that court reference in Nova Scotia, which is section 92(10)(a). I hate to get too lawyerly on this, but these things are completely separate from one another. They are separate considerations, which is why, when I wrote the backgrounder, I just stuck to section 92(10)(c), because that’s what Bill S-273 is all about. These other issues are completely separate, and it can be very confusing if you start to try to bring them together. Put that other section 92(10)(a) out of your mind.
We’ll see if Emmett Macfarlane can explain it better than that.
Senator Dasko: It can still be piling on, right? If you get a court decision that says it’s a federal power, and then you pass this bill that says, “Well, you have federal jurisdiction,” even though they’re separate things, it’s still —
Ms. O’Byrne: Sure. I’m going to stick to my metaphor of the obstacles and keep knocking down obstacles. That would be another one. But conceptually, and from the different sections of the Constitution, there are two very different things going on at the same time.
Senator Dasko: Thank you.
Senator Simons: Professor O’Byrne, you said this is knocking down obstacles, but there are no obstacles. The example Professor Leach cited of nationalizing grain elevators — I don’t know if that’s quite the right term for it, but declaring the grain elevator system to be in the national interest — I don’t know the history of that, but I imagine there were some angry people in Saskatchewan, Alberta and Manitoba when that happened. That’s plus ça change. But what obstacles do we imagine that we’re knocking down here when we have this unusual situation of the provinces begging the federal government to take jurisdictional control?
Ms. O’Byrne: Thanks for that.
Of course, you have the two issues that Professor Macfarlane did a really good job of explaining. Jurisdictional authority is very different from substantive obligation. What we’re seeing in this case, though, is the federal government saying, “The only way we’re going to help is on 50-50 cost-sharing dollars,” which is a separate conversation, and that could be 90-10 or whatever formula the governments decide after the fact.
The obstacle to knock down is to say, “This is actually of primary national importance. It’s so important that Parliament has decided to make a political decision not reviewable by the courts. This actually reflects our whole raison d’être of nationhood in that smaller units often need help to deal with these larger infrastructure challenges.”
Again, keeping those two things separate, what are the obstacles? I see in the media coverage on this — and probably the reason why this bill is in front of you and why we’re here tonight — that the federal government is refusing to move off the 50-50 cost-sharing business. One way to get them to do that is to say, “Well, actually, like Medicare, or like some other programs that are so large and so important that the constituent units actually do not have the fiscal capacity to deal with these challenges, to declare it for the general advantage of Canada is to do exactly what the drafters of the Constitution intended in 1867, and that is to say sometimes things are so big that it plugs into that federal system in a different way of approaching things.” And then the mechanics of that cost-sharing, that all gets dickered out.
I’m from Saskatchewan, and if you want to know the grain elevator story, I can tell you all about that because I went to law school at the University of Saskatchewan. Maybe we can save that for another occasion.
Senator Simons: You and Andrew can go have drinks offline. That will be fine.
I guess what I want to understand is, are there potential implications in encouraging the federal government to do something like this? Maybe I can start with Professor Leach. You referenced Premier Jason Kenney, as he was then, asking for the government to declare the pipeline for the greater good, for the general advantage of Canada. Is there a danger in allowing the government to exercise this declaratory power in a situation like this where the provinces are asking for it? Does it normalize this kind of thing in situations where provinces might not ask for it?
Mr. Leach: I think it’s fine for the federal government to step in and say, “We want legislative jurisdiction over this if we’re going to take a meaningful, overall interest and ownership interest,” et cetera, or if the provinces want the feds to do that. I don’t necessarily see a problem with that.
I do see a problem with the drafting. We want to be careful with drafting of legislation. Power has a very specific use and very specific circumstances under which it should be called upon. I don’t think we want to do as Premier Kenney did at the time and kind of — Professor O’Byrne highlighted this — confounding, essentially, federal jurisdiction versus a federal more powerful enforcement tool to get a pipeline built, and we’ll pile on, and we will get it built. In that case, that was a section 92(10)(a) project. The section 92(10)(c) declaration for that purpose wouldn’t have done anything. We want to be careful with our drafting and use the powers as they’re identified in the Constitution. It is the same way as we wouldn’t use the words “notwithstanding” sloppily in legislation where it didn’t apply. I don’t think we want to use it here in an area if we’re not clear that it applies.
Senator Miville-Dechêne: This is a question for Nicole O’Byrne. We heard Rachel Heft earlier. She is the lawyer from the government, and she basically said that to declare an infrastructure for the general interest of Canada was only a matter of federal laws applying to this particular infrastructure and that it has nothing more in it. Obviously, with your passion, you’re putting much more into it. You’re talking about the general interest and the interest of Canada. Who is right? Why are you saying that about this declaratory power as opposed to, obviously, civil servants who are more down to earth and saying, “The only thing it does is the federal laws apply to the particular object we’re talking about.” How do you explain the difference?
Ms. O’Byrne: Well, I guess I can go back to law school and say I won the constitutional law prize for answering a question about section 92(10)(c) on a final exam, but that was 25 years ago.
I’ve been studying these cost-sharing agreements for a long time, and they are more than mechanics. They are more than dollars going back and forth. Constitutional law can be just about money, or it can be about the political vision that we have as a nation and why we exist. Constitutional law — I hope Professor Macfarlane will agree with me on this — is law, but it’s politics. It’s a mixture of both.
Lawyers come in and often just stare at the wording of the Constitution, and they’ll see a very reductive view of it. Now, I didn’t hear her testimony earlier tonight, and I’m probably being a little harsh, but lawyers tend to come in and see it in the most limited way they possibly can.
You have to expand your interpretation of the Constitution because it’s not a statute. There are different constructions and different interpretive mechanisms. There is that living tree that you hear about. That’s why it’s imperative that when we look at constitutional provisions, you have to look at the history, the politics, at the problems it was designed to solve, and not just say, “Well, it only actually applies in a very limited circumstance.” Because constitutions don’t. Constitutions by design are much bigger than that.
Senator Miville-Dechêne: Mr. Macfarlane, maybe a minute?
Mr. Macfarlane: To the extent that I could add to that, I think I would say this may be a great example of the Senate fulfilling its regional representation role in advancing a private member’s bill that raises a question of national concern in relation to one of our great regions in the country. This is not just about legal effect but about political and symbolic effect as well, is my read on it.
Senator Quinn: Thank you, professor, for the last comment, because that’s exactly one of the main purposes that I’m doing this, representing a region, bringing an issue forward that’s of national significance.
We’ve had earlier testimony that section 92(10)(a) and section 92(10)(c) are both instruments of the Constitution. We’ve heard Professor O’Byrne say they’re separate. I understand that they’re separate. But they come to the same destination, I believe, from what our previous witness said, the DOJ lawyer. She said they end up at the same destination in terms of the question of jurisdiction and federal law.
My question is this: We have this court case going on, and there will be a decision eventually. I don’t know when that is. I’m not sure how long that would take. If the decision says yes or no that it is federal jurisdiction, we then, I understand, would have the right to appeal that to the Supreme Court to get a Supreme Court interpretation which, again, is dragging time. That would take some time.
The declaratory power is a tool that allows Parliament to propose a policy decision that would get to that same destination, but I would argue that it would happen more quickly to at least let the groundwork be done and start getting all of the preparatory work done. If the Supreme Court happens to rule in favour that it falls under the court case, great. Is it possible to repeal the declaratory power? We’ve not lost time, is my point. Is it possible? Professor O’Byrne.
Ms. O’Byrne: Yes, you can repeal it. I’ll just say this briefly to let other people talk. If you have a declaration for the general advantage of Canada, it’s not reviewable by the courts, but it could be repealed the next day. We’ve gotten away from this after the Charter was introduced in 1982, of thinking that actually parliamentary sovereignty really matters. This is one of those examples.
As for a reference question going to the court, that’s not binding. Even if it gets referred to the Supreme Court of Canada, that’s still not binding. Again, a very different world. We have to revert back to pre-Charter. But we’re not talking about Charter here. We’re not talking about dialogue. We’re talking about an exercise of parliamentary supremacy and sovereignty here.
Senator Quinn: Thank you. Others?
Mr. Leach: I’d throw in a couple of thoughts on the declaratory power.
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.
You might think about clause 7, as Senator Simons held, and want to put pressure on the government through, for example, a strategic environmental assessment under the Impact Assessment Act, or the provincial governments may wish to do that to highlight some of the crises, and those efforts would be exempt now under the act, as I understand it.
Senator Quinn: I’m sorry to interrupt. You referred to clause 7, the exemptions. Is that not existing in other legislation?
Mr. Leach: I’m not arguing that it’s invalid. You can have it.
Senator Quinn: Is it in other legislation?
Mr. Leach: Yes.
Senator Quinn: It’s a yes/no, sir. We have 10 seconds left.
Mr. Leach: The question is either you want it to be exempt —
Senator Quinn: That’s not the question. Does it exist in other legislation? It’s a yes/no.
Mr. Leach: Yes.
Senator Quinn: All right. Thank you.
The Chair: Professors O’Byrne, Leach and Macfarlane, your time has been very much appreciated by this committee in our study of Bill S-273. We really appreciate your input.
Thank you very much, colleagues. This meeting is adjourned.
(The committee adjourned.)