THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Wednesday, May 29, 2024
The Standing Senate Committee on Transport and Communications met with videoconference this day at 6:47 p.m. [ET], partially in camera, 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; and The subject matter of those elements contained in Divisions 27 and 37 of Part 4 of Bill C-69, An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024.
Senator Leo Housakos (Chair) in the chair.
[English]
The Chair: I’m Senator Leo Housakos from Quebec, chair of the committee, and I would invite my colleagues to briefly introduce themselves starting from my left.
Senator Simons: Senator Paula Simons, Alberta, and I come from Treaty 6 territory.
Senator Wells: David Wells, Newfoundland and Labrador.
[Translation]
Senator Aucoin: Réjean Aucoin from Nova Scotia.
[English]
Senator Cuzner: Rodger Cuzner, Nova Scotia.
Senator Quinn: Jim Quinn, New Brunswick.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Dasko: Donna Dasko, Ontario.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
[English]
Senator Ross: Krista Ross, New Brunswick.
The Chair: Welcome, colleagues and viewers. This evening we will proceed with clause-by-clause consideration of Bill S-273, the Chignecto Isthmus Dykeland System Act.
Before we begin, I would like to remind senators of a number of points. One, if at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure that at all times we have the same understanding of where we are in the process.
Two, in terms of the mechanics of the process, when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of a clause.
Three, if a senator is opposed to an entire clause, the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause as standing as part of the bill.
Four, some amendments that are moved may have consequential effect on other parts of the bill. It is, therefore, useful to this process if a senator moving an amendment identifies to the committee other clauses in this bill where this amendment could have an effect. Otherwise, it would be difficult for members of the committee to remain consistent in their decision making.
Five, because no notice is required to move amendments, there might have been no preliminary analysis of the amendments to establish which ones may be of consequence to others and which may be contradictory.
Six, if a committee member ever has any questions about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair, I will listen to the argument, decide when there has been sufficient discussion of a matter or order and make a ruling.
Seven, the committee is the ultimate master of its business within the bounds established by the Senate and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
Eight, I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote which, obviously, provides unambiguous results.
Finally, senators are aware that any tied vote negates the motion in question.
Are there any questions, colleagues, on the above points?
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada? Agree or not?
Hon. Senators: Agreed.
The Chair: Thank you, colleagues. Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry? You have an amendment, Senator Quinn.
Senator Quinn: Yes. In clause 2, we’ve put three definitions there. Shall I read them?
The Chair: Yes, please.
Senator Quinn:
That Bill S-273 be amended in clause 2, on page 2, by adding the following after line 17:
“Indigenous governing body means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982. (corps dirigeant autochtone)
Indigenous organization means an Indigenous governing body or any other entity that represents the interests of an Indigenous group and its members. (organisation autochtone)
Indigenous peoples has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982. (peuples autochtones)”.
We’ve put these in because of the consultations and the meetings we’ve had here with representatives of the Indigenous communities and at the request that we insert these for clarity. There’s a reference to this again later on in the bill when we get into clause 2, page 2, where we talk about “persons,” meaning those groups that I referred to in this amendment.
The Chair: Are there any questions or any colleagues who want to go on debate?
[Translation]
Senator Aucoin: Mr. Chair, I want to make sure I understood correctly. Are we on the amendment to clause 2, on page 2?
The Chair: Clause 2, page 2, yes.
Senator Aucoin: My first question: In the first amendment, “corps dirigeant autochtone” — which means “Indigenous governing body” in English — is the word “corps” appropriate in French?
The Chair: Could you repeat the word?
Senator Aucoin: I said, “corps dirigeant autochtone.” It’s the translation of the words “Indigenous governing body” in English. It’s in the first amendment, in paragraph a).
The Chair: I couldn’t tell you.
Senator Aucoin: I want to know if it’s the right —
The Chair: That’s a good question. I am not an expert in Molière’s language.
Senator Miville-Dechêne: Aren’t we on page 1, on the first amendment?
The Chair: Yes. In paragraph a), there’s a translation — which Senator Aucoin has a question about — of the term “corps dirigeant autochtone.”
Senator Miville-Dechêne: But that is the second amendment. Are we already there?
The Chair: It’s the first amendment.
Senator Aucoin: It’s the first amendment. That’s a good literal translation.
Senator Miville-Dechêne: Yes. We can say the Army corps, a corps…. I think the word “corps” in French corresponds to “group,” to an organized group, generally speaking.
[English]
Senator Quinn: The definitions are taken out of the Department of Crown-Indigenous Relations and Northern Affairs Act. These are the definitions exactly from that act.
Senator Miville-Dechêne: The translations are from there too?
Senator Quinn: Yes, in both languages.
The Chair: Our Law Clerk of the Senate has just advised us that in his legal estimation, that’s the proper translation.
[Translation]
That’s the Law Clerk of the Senate’s opinion on the question.
Senator Aucoin: Perfect.
[English]
Senator Quinn: Those definitions come out of the act I just mentioned.
[Translation]
The Chair: Are there any other questions regarding this amendment?
Senator Aucoin: Thank you for that one. If we are on clause 2, page 2 — I think you told me we were there too — for the definition of “person”….
The Chair: We are on amendment JQ-S273-2-2-17 right now; the first amendment. We have not moved on to that one.
Senator Aucoin: I thought he read that one too.
The Chair: No, we are still on the first amendment. Once again, are there any questions on this first amendment, or senators who want to participate in the debate? If not, we can put the amendment to a vote if you agree.
[English]
Are all in favour of this amendment, colleagues?
Hon. Senators: Agreed.
The Chair: So carried.
Amendment JQ-S273-2-2-17 has been adopted.
Amendment JQ-S273-2-2-18.
Senator Quinn:
That Bill S-273 be amended in clause 2, on page 2, by replacing line 18 with the following:
“Minister means the Minister of Infrastructure”.
Colleagues, the reason we’ve put that there is we received Bill C-59 today in the chamber. Bill C-59 deals with establishing a framework for infrastructure and communities. If you go back to the definition, the “minister” means the Minister of Infrastructure and Communities, to reflect that which was tabled today in the Senate.
The Chair: Colleagues, is there any senator who wants to go on debate or question?
Senator Wells: Senator Quinn, without that further explanation, was it assumed to be any other minister?
Senator Quinn: No.
Senator Wells: Or is this just to be aligned with the legislation that is tabled?
Senator Quinn: That’s right. To reflect the title of the legislation tabled today in the Senate, anticipating it will go through the Senate.
Senator Wells: Thank you.
The Chair: Correct.
Senator Quinn: [Technical difficulties] housing. It’s the Minister of Infrastructure and Communities would be the new title.
Senator Cardozo: In English it’s Minister of Infrastructure, period.
Senator Quinn: No. You have to keep reading the next line, “and communities.”
The Chair: That’s the Minister of Housing, Infrastructure and Communities?
Senator Quinn: Correct. Communities would be the language in the bill. We’re just changing that one line. You have to look at the old — exactly. Thank you.
The Chair: Shall the amendment be adopted, colleagues?
Hon. Senators: Agreed.
The Chair: Carried.
Amendment JQ-S273-2-2-20.
Senator Quinn:
That Bill S-273 be amended in clause 2, on page 2, by replacing lines 20 and 21 with the following:
“person means an individual, corporation, partnership, joint venture, Indigenous governing body or Indigenous organization. (personne)”.
That is to reflect — as I said earlier, the earlier amendment is connected to this amendment as well, so that the personne is defined.
[Translation]
Senator Aucoin: I think in the French version, near the end, after the word “autochtone,” it says “or” in English, but in French it says “et.” It should be “ou une organisation autochtone.”
The Chair: I think Senator Aucoin is right. If we want to be exact, it should be “ou.”
Senator Miville-Dechêne: I know. That’s why I was thanking him.
The Chair: I think the direct translation is “ou.”
[English]
Senator Miville-Dechêne: Which one is the right one? Did you start in English and translate or was it the reverse?
The Chair: No, it usually goes in English, and then they mess it up in French.
Senator Miville-Dechêne: I know. It’s awful.
[Translation]
The Chair: Usually, we start in English.
Senator Quinn: The exact word is “ou.”
[English]
Senator Miville-Dechêne: Are we keeping everything before? Obviously, it’s just a part of the sentence. So you’re just adding something in the middle? Okay, that’s fine. I get it.
Senator Clement: Do you have to make a formal change to this word?
The Chair: Are there two amendments to this clause?
[Translation]
Senator Miville-Dechêne: They are similar.
[English]
The Chair: The clerk always has the final say on making small technical translations, but since we’ve picked it up, let’s try to correct it. Sometimes, the Senate’s office of the Law Clerk is not perfect.
[Translation]
The clerk says that, from his point of view, “or” is “et.” Even with my French, that’s not quite the case.
[English]
Senator Simons: I am being advised by my staff person, who was with legal for a long time, that it’s fine this way. I don’t know why, but apparently, it is.
Senator Miville-Dechêne: It’s not the same, but I would go with “ou.” Is it a problem to go with “ou”?
The Chair: Sometimes lawyers interpret things differently than us laymen.
[Translation]
I’m told it’s not always the same in both languages, but in his mind “ou” and “et” are the same thing in English and French.
Senator Miville-Dechêne: In this case, it’s a list. It is not one or the other. It is one or the other, but it is also a list. When we make a list with commas, it doesn’t mean everyone. What do you think?
The Chair: The advice we received from the clerk is —
Angus Wilson, Clerk of the Committee: In English, if we say “and,” it means the people all have the implied roles, all the roles that are represented.
[English]
So a person can’t be A and B and C.
Senator Simons: So it’s not the same in French?
Senator Dasko: Just like “or” in this context, correct?
The Chair: Yes, but “et,” if you translate it, is “and.”
Senator Dasko: Yes, but we’re being told that it’s actually —
The Chair: We’re being told that it’s the equivalent by the lawyers.
Senator Dasko: As is?
[Translation]
Senator Aucoin: After hearing the clerk of the committee’s opinion, I think that in this case, as the senator said, it may be a list, and at that point —
Senator Miville-Dechêne: The list makes a difference. The word “ou” isn’t used in the same way, so let’s go ahead if you agree.
The Chair: I would imagine, dear colleagues, that we will accept the law clerk’s decision if everyone agrees.
Senator Aucoin, is that suitable?
Senator Aucoin: It’s great.
The Chair: Shall the amendment carry as proposed, dear colleagues?
Hon. Senators: Agreed.
The Chair: Carried.
[English]
Shall clause 2, as amended, carry?
Senator Simons: There’s one more.
The Chair: Oh, yes. JQ S-273-2-2. No, that’s a repeat of the same one, actually.
So shall clause 2 as amended carry? It’s the same amendment.
Senator Miville-Dechêne: No, it’s not.
The Chair: It’s not up to date?
Mr. Wilson: That’s after clause 2.
The Chair: 2.1-2-27 is clause —
Senator Simons: 2.1 is not considered part of 2?
The Chair: No.
Shall clause 2, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Amendment JQ S-273-2.1-2-27.
Senator Quinn: I move:
That Bill S-273 be amended on page 2 by adding the following after line 27:
“2.1 For greater certainty, this Act is to be construed as upholding the Aboriginal and treaty rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.”.
This amendment is being moved because there was a discussion about the non-derogation clause, and we know there’s a bill, Bill S-13, that is dealing with the non-derogation clause that would be in the statutory laws, where all non-derogation clauses would be removed from legislation. This would put this in this bill for the time being, and if that bill is passed, then it would be removed. In the meantime, it gives certainty to the Aboriginal folks that section 35 non-derogation is being respected.
It was Bill S-13 An Act to amend the Interpretation Act and to make related amendments to other Acts, I’m sorry.
Senator Simons: Once the amendments to the Interpretation Act receives Royal Assent, would this have to be amended, or would it just sort of atrophy within the bill?
Senator Quinn: It would be consequential amendments, and that would happen to a large number of bills that the government has.
Senator Simons: They will sweep them all out. We’ll have a meeting at Legal to deal with that.
Senator Quinn: Right.
The Chair: Shall the amendment be adopted?
Hon. Senators: Agreed.
The Chair: Carried.
Senator Quinn: At the end, consequential amendment that’s here to note exactly what I’ve just said: That this would disappear if or when Bill S-13 is passed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 4 carry?
Senator Simons: No.
The Chair: No? Senator Simons.
Senator Simons: Do you want me to explain why I’m voting “no”?
The Chair: Yes. If you don’t want it to carry, you have to.
Senator Simons: Sure. I think it’s obvious that in the general sense of the English language, the Chignecto Isthmus dykeland system is clearly for the general advantage of Canada, Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland — the whole country. I want to commend Senator Quinn for bringing our attention to this matter and for making sure that we included this in our study of transportation resiliency. For me, as a westerner, it was the first I had heard of the Chignecto Isthmus, and I really want to commend the senator for putting this issue in the national spotlight so it’s not just something people know about at either side of the isthmus.
However, I don’t believe that using the declaratory power in this case makes legal or practical sense. As we heard from our witness, Andrew Leach, from the University of Alberta’s law school, a declaratory power is specifically to be used when a piece of infrastructure is within one province. By definition, the Chignecto Isthmus dykeland system is not within one province. Using the declaratory power does not require, in any way, for the federal government to spend a penny more on this than they were already intending to. I’m afraid that if we start using the declaratory power just to make a political statement, just to get public attention to something, this is a serious use of an extraordinary government power. And to do it to make a point, without having a legal premise, is, I think, to dilute the importance of the declaratory power.
I know former Premier Kenney of Alberta wanted to use the declaratory power to make pipelines in the national interest. If something is through the provinces, it’s already subject to federal authority.
Now, I think what people generally believe is that the federal government should pay more than 50% of the cost of this. I would tend to agree. I find it frustrating when the government witnesses were here and said as though it were some kind of holy concord that the government can only pay 50%. I appreciate that many of my colleagues here tonight are from New Brunswick and Nova Scotia and that this is a matter of extraordinary importance to their provinces, but this is not the correct way to go about solving a very serious problem.
So, with respect, I will be voting against this clause and against the bill at the end, which doesn’t mean I don’t think this is important. I do.
[Translation]
Senator Miville-Dechêne: Since we are discussing this clause, I can tell you what I think of it, even though I will not vote against it.
Contrary to my colleague, given the testimony we heard, I think nothing prevents us from voting in favour of the declaration, because it leads to no specific cost. Without a doubt, you are right to say that it’s taking a power which, according to the Constitution, has a certain importance, essentially for a political reason.
I agree with that.
However, in the end, we are in politics. I thought about it great deal, because I also started reflecting on it by asking: Why? It’s quite clear that it’s a political problem. Two of the least fortunate provinces have to pay 50% of the expenses for an isthmus that is, after all, somewhat part of the TransCanada Highway, because it goes from one end of the country to the other. Admittedly, just a few weeks ago, Prime Minister Trudeau announced the Quebec Bridge buyback and, 10 years ago, paid 100% of construction costs for the new Champlain Bridge. Indeed, these structures are located in one province. Furthermore, Quebec is a province with more means than the two provinces involved here.
It’s all very political, I agree, but I do not think it is a mortal sin to use this part of the Constitution to apply pressure. It is clear. We had the premier of New Brunswick here, imploring us to pass this bill, even though it will change nothing in funding allocation. It could even call attention to the government, on the contrary, but if that’s the risk Senator Quinn is ready to take…. We pass bills that, after all, sometimes have little impact on the common good and everything that happens, as you know.
The idea…. I agree with you enough to say that at first glance, it is a bit strange, but nothing is stopping us from doing it. Based on what we heard on a constitutional level, it’s probably a matter of principle in your case, and I accept that.
[English]
Senator Wells: Thank you, Senator Miville-Dechêne. You made a compelling point. My question is to Senator Quinn, who is moving this. Does this compel the government to do anything different than what it might do anyway?
Senator Quinn: I would like to answer that by also taking into consideration that which has been said.
The Chair: Sure.
Senator Quinn: The dykeland system is distinguishable between Nova Scotia and New Brunswick. New Brunswick could, for example, say, “We’re going to look after our side of this.” They could fix dykes, stop flooding in Sackville, hold back the waters. They could do that as a separate province. Nova Scotia could do the same thing. However, they have come together to say, “This is in both of our interests to approach this so we ensure we have a continuous fix for this system.”
We have heard a lot of discussion about why it’s in the general interest of Canada. I think that the witness that we had, Professor Leach, left the impression that it’s legally a continuous system when, in fact, it’s not. And we have had discussions with folks on that point.
All the declaratory power does, noting this is in the general interests of Canada, is to allow one part of Parliament to have a debate in the Senate. If it’s successful in the Senate, it then goes to the elected people. The elected people have to have their debate and decide whether it is, in fact, a good bill to move forward. If that passes it goes to the government. It goes to cabinet, and then they decide what to do. They don’t have to do anything right now because it all comes back to the 50‑cent dollar thing. The 50‑cent dollar has been negotiated. That’s at the maximum of the Treasury Board authority for the Disaster Mitigation and Adaptation Fund, or DMAF, funding. The issue with using DMAF is that there is a billion dollars left in it. This project would take $325 million or $450 million of DMAF funding, which would take all those other projects in that $10 million to $20 million range across the country out of consideration. A lot of them wouldn’t get done. This gives the government the opportunity to do something that allows them to get a different spending authority, if they choose. It doesn’t mean they have to spend any more or any less or anything.
What it does do, coming back to, I think, my colleague Senator Miville-Dechêne, and I want to be really clear. When I talk about the project that the government has decided to do in Quebec, that’s an important crossing; there is no doubt about it. My argument in that sense is that it may, in fact, cause the government to reflect and negotiate a bit further to give similar treatment to one part of the country that it is giving to another part of the country. Not the case of the Champlain Bridge.
Senator Miville-Dechêne: Or reverse.
Senator Quinn: Exactly right.
Senator Miville-Dechêne: It could split the party apart. You don’t know. You cannot predict what is going to happen.
Senator Quinn: That could make put the current negotiations null and void, and the government says: “We’re not ready to do anything at this time.” I want to be clear on that.
The Chair: Senator Dasko.
Senator Dasko: Thank you, chair. I have to say that my frustration comes from witnesses who came to the committee, including the Premier of New Brunswick and the minister from Nova Scotia, and saying: “It’s about the money. It’s about 100%.” That’s it. They were as clear as could be, whereas Senator Quinn, when you first presented the bill you were absolutely scrupulous in saying it’s not about the money. So this was my frustration.
In addition to the premier, we had other witnesses who came to say, “It’s about the money. It’s about the 100%. We’re only getting these 50% dollars.” I think it’s a little disingenuous that they were caring about other parts of the country, because the pool of money that is going to be left in this program is going to be small. That’s not their concern. They are not concerned about less program money for the rest of Canada. They want the money. They want 100% of the funding for this project, and this is the mechanism to get it.
Why I’m feeling very torn about this is because there is a little bit of smoke and mirrors and we’re getting — maybe that’s the wrong term. We’re hearing these two different arguments: “No, no, it’s not about the money,” and well, of course, it’s about the money. What else could it possibly be? Not from you, senator, but from some of the witnesses.
I feel very torn by this. I would prefer — and this is another thought that came up in our deliberations — that the federal government negotiates with the provinces about the funding. Surely this one fund is not the only source of money in the federal government to assist provinces with programs like this. Negotiate. Get the two levels of government together to talk about this and to negotiate higher than “50 cents on the dollar.” That’s the term being used. Negotiate more: 75%, 80%, 100%. This is what bothers me. From what we have heard, I think it’s strictly a tool for getting more money. That’s why I feel uneasy about it, especially given our role here in the Senate.
Senator Clement: I agree with everything that has been said even though it’s conflicting things. I’ll explain why. Thank you, Senator Simons, for raising it the way that you did.
I am uncomfortable with this. I have been since day one. To me, this is a bill that is remedying a failure of politics and negotiation, as Senator Dasko just said. The fact that this is in the courts is also a sign of failure, that the different levels of government couldn’t sit down and hash this out.
I agree with what Senator Miville-Dechêne said: This is about politics. You know when I say “politics,” I always mean it in the best sense, in a positive way. But it didn’t work here. Here you are — here we are — using a tool that doesn’t quite fit for the problem that is in front of us.
I also want to add that we are great at crisis management, but we fail to plan ahead and this is where we end up, namely, trying to legislate and correct.
I’m saying all this, but I am going to support this bill. I’m uncomfortable. I want it on the record that I’m uneasy because I don’t think this is the proper process, but I also recognize that these two provinces, all of the mayors, Indigenous populations and leaders, came to us and said, “Do this.” That is compelling to me as well. I just want to be on the record as agreeing with everything that everybody said, but to say that I’m going to support this bill.
Senator Cardozo: Senator Quinn, can you assist me? I seem to recall at an earlier point that we had a couple of officials from the two provinces who said that the way they saw it, the two provinces would cover 50%. It wasn’t going to be 25-25. It was going to be something like 30-20 with Nova Scotia paying the larger amount. They were looking for 50% from the federal government.
When we had the premier and the minister, they were saying it was 100%. I’m confused about whether that was a different proceeding or the same proceeding that we were part of. Can you remind me?
Senator Quinn: If I package my answer, first — and I think Senator Dasko and Senator Clement said this too — what we’re doing here is giving a political decision, if you will, to cabinet.
When the premier was saying his piece — and we can check the transcripts — he said he wanted 100%. But he also alluded to recognizing that may not necessarily be the case. Let’s just say that he said, “I want 100%.” If this is a political policy-type of discussion, of course, he is going to say that. I would be surprised if he really expects to get 100% but that’s just a personal view.
I don’t recall the 50-30-20. I recall the officials here talking about —
Senator Cardozo: He didn’t specify 30-20, but they said more.
Senator Quinn: What they said, as I recall, is they’ve had negotiations up to this point that had 50% federal contribution and 50% to be figured out by the provinces. That’s what I recall them saying. I know that the provinces are having discussions about, “You have to do 30%. You have to do 20% because most of the benefit goes to Nova Scotia, less to New Brunswick.” There are all those things involved in that. That’s a whole separate discussion among provinces.
I would argue that this is a legitimate tool to use because we’re only one part of the equation of Parliament. We happen to be the Senate, the upper chamber. My goal has always been to get it to the floor of the Senate, to have the Senate debate on it, vote on it, and, if they agree with it, then it goes to the elected people. They can deal with the more political questions.
I’m here because I believe my job as a senator from Eastern Canada is to represent my region. This has become a unified regional issue. I have been doing my best to represent that regional issue in the Senate. We’re here because we’re representing regions and the Constitution. Our forefathers created that arrangement knowing that the elected people far outweigh the eastern part of the country in terms of elected seats.
Senator Miville-Dechêne: But you’re not representing the premier. You had one premier here, but we’re representing the people.
Senator Quinn: All I’m arguing is that bringing this issue forward to the Senate was nothing nefarious in terms of me trying to cloud the issue. I’m fully aware that, as a New Brunswicker, I would like to say, “Yes, you guys should pay 100%.” But that’s not my decision to make. I’m trying to get this to the point where it can go to the elected people and they can make that policy and the political decision on the bigger picture.
As I said earlier, I’m doing this because I’m also advocating that there needs to be regional fairness. We just had an announcement two weeks ago where 60% of the federal money will be used for the Quebec bridge. I would note that the Quebec bridge, going from Quebec City to the South Shore, is a much less utilized corridor when it comes to trade and transportation for the general advantage of Canada. There is no doubt that the corridor I’m arguing for under declaratory power is for the general advantage of Canada.
Senator Miville-Dechêne: Are you sure?
Senator Quinn: Yes; 100%. I can tell you from my experience as a CEO of a port that the cargo that comes out of Halifax doesn’t stay in Nova Scotia. They do 500,000 containers — I’ll call them containers, but they are called TEUs — annually. They are shipped down into Upper Canada, into Chicago and then distributed to the states and vice versa. They come from the Suez Canal from all over the world, then travel into Halifax and all across the country and from the country to North America and back to Halifax. That trade is an important factor for our country.
Some of you referred to the continuation of the transportation corridor, which is the Trans-Canada Highway, that comes through all the provinces of Canada, including this part of Canada, down into Nova Scotia.
I hope that I was able to package my answer to Senator Cardozo in terms of the 50-30-20 to which you alluded. Again, my recollection is that that they acknowledged they had negotiated up to the maximum of the Disaster Mitigation and Adaptation Fund, Treasury Board authority, which is 50%, and that they have to figure out the other 50%.
The purpose of this act is using the declaratory power in the Constitution Act, 92.10(c). Separate from that is the court case, which is using 92.10(a). They are separate activities but they come to the same destination. As of yesterday, they are doing filings and so on. We’re into many months if not years of debate. My goal is that we know that this was identified years ago as the second most vulnerable risk area in North America by the United Nations. The more time we put behind us without having something done, the risk increases because of the frequency and growing intensity of weather events.
Again, I’m looking to see that the Senate can approve a regional issue and then pass it to the other side, so the elected people will have the debate and make the decision about whether they accept it or not. If they do, it then goes to cabinet, and cabinet makes the decision what to do with it.
Does it put pressure on the federal government? I can argue yes, it does, but it’s cabinet’s decision to make, nobody else’s.
The Chair: If I may weigh in on this as well, colleagues, before I go to Senator Aucoin and then Senator Cardozo, everything we do here is about the money and it’s politics. There’s no doubt about it. Everything we do here, and if anybody says otherwise, they’re only fooling themselves.
Having said that, this is a legitimate tool that has been used before. I don’t see why we should be shy as a parliamentary body, whose fundamental role is to represent our regions, to basically put pressure on the government when we think they’re not responding to certain regional needs.
This bill does not tie the government to any particular expenditures. At the end of the day, this will be determined by the levels of government in negotiation. If it’s going to be 50-25-25 or 75-25, which will be determined by the executive branch of government, but the Senate does have a role, as a legislative body, to basically make certain representations and to use these tools that are very much within the legal confines to guide our executive branches to do what certain senators might think is appropriate for their region.
I want to be consistent. I will support this. Not too long ago, in a previous government, I had a view, as a senator from Montréal, that the federal government had an obligation to build the Champlain Bridge. My provincial government, of course, shared that view. The federal government that I represented as a senator at the time did not share that view, for political reasons. Senator David Wells, who is around this table, was there at the time, and we had the ongoing debate for a very long time.
I’ll say this, and it’s a very political message — if the federal government does not take the lead on large infrastructure projects, national security and defence, why do we even have a country? Because at the end of the day, if you look at the Chignecto Isthmus, the Champlain Bridge and other infrastructure projects across the country, I don’t know of any provincial governments that have the wherewithal financially under our structure of government to fulfill these infrastructure obligations.
I don’t care what cabinet decisions are taken by which political parties, at various times, for whatever politically expedient decisions to invest or not invest in a region. I think we, as senators, have an obligation to basically keep putting the pressure on that. Politics aside, we’re a confederation, and if we do not invest in our infrastructure as a country, then we’re not going to have much of a country left.
That’s where I stood on similar debates in a previous government. Senator Wells will confirm that. I’m consistent today on that debate with a Liberal government. I don’t come from Atlantic Canada, but I think it’s important for national unity, and I think it’s the fundamental obligation of the federal government.
That’s all I will share on this.
[Translation]
Senator Aucoin: Thank you, dear colleagues, for all your comments, which I appreciate very much.
I apologize for not participating in all the debates or committee meetings. With all the oncoming climate changes, I’m wondering if it wouldn’t be better to act, rather than react. Is this going to become a political problem or not? On the one hand, shouldn’t we be fair, as other senators have said, from one region to the next? Shouldn’t we be on the same wavelength? What would happen if, for example, in the near future, the agreement between both provinces falls apart because there are different governments? What if one province decides to build or repair a section of the Chignecto Isthmus and pays for 100% of it, but the other party does nothing? There’s a storm; what would happen? The protected party won’t protect the other party. The protected party might not even remain protected because one of the two provinces hasn’t done its work.
With this comment, I’m saying we have to ensure that this becomes an undertaking in Canada’s general interest and a focal point for the government of Canada. What will happen in the House of Commons? We don’t know. If the bill passes, at least the provinces will be able to turn to the federal government and say, “You have to put money in and you have to help us.” It would change politics, in the sense that the focal point or political pressure could change. It could help or hinder negotiations; we don’t know. I think the bill really is in Canada’s general interest, because if this isthmus disappears, we would lose the TransCanada, CN and all those telecommunications links.
[English]
Senator Cardozo: Thank you, Senator Aucoin, for the very articulate points that you’ve made. I want to come back to the point about the amount of money. In a sense, this may not be relevant here.
I wasn’t clear what the ask was from the province. When I asked them about the 50% and had they changed their position, I recall the minister saying, “No, we haven’t changed our position about the 50-50, but yes, we want 100.” So, as I understand, they are looking for 100, and I’d like you to answer that.
That said, either of those figures are not relevant to this bill inasmuch as we’re not saying anything about a percentage in the bill.
Senator Quinn: I believe that’s correct. I also wanted to add that when they were here, they had negotiated up to the 50% limit, and they had acknowledged that they sent their application in. In case they lose everything, they wanted to ensure they had sent in the application.
The application process is not yet complete. The negotiation that happens now is they have to look at the drafting agreements and whatnot. Nothing is final until it’s been signed by all of the participants. That agreement is still being discussed. In fact, there’s nothing in writing yet. I think that’s what they were saying. We want to ensure we’ve covered our position by saying yes, here’s our application. Would they like to get more? Of course they would like to get more — we all would — but this bill is not about that.
Senator Cardozo: Okay. So what they were saying is it seemed to them they were getting 50%, and then the political folks were saying, okay, but we’d like to go more than that and go to 100%?
Senator Quinn: Yes. In fact, the minister from Nova Scotia, the Minister of Public Works, pretty much said that — look, we put in our application together with the Province of New Brunswick. We want to make sure that we protect at least that, but would we like more? Of course. I think that’s a negotiation position.
The other thing I wanted to refer to is that the political policy discussion of the two main provinces involved, New Brunswick and Nova Scotia, I want to remind all of us that the legislature had all-party support for this bill. It wasn’t just the Blaine Higgs government — it was the entire New Brunswick legislature, all MLAs, and the same in Nova Scotia. I want to remind folks that they’ve taken a non-partisan — I guess is the right phrase — approach to doing this.
If there is a change in government — somebody mentioned a change in government — I think that’s something they would still honour and respect because it was all-party support.
Senator Wells: Chair, I was thinking about what you were saying about some of the decisions that the government have made to fund nation-building projects. I think about my own province, and I don’t think about it like this often enough, but I’m part of the regional representation that includes New Brunswick, Nova Scotia and Prince Edward Island. In fact, proportionally, Atlantic Canada has more Senate seats than any other region in our regional breakdown.
When I think about the nation-building projects — and we’ve spoken about this with respect to the recent passing of Mr. Mulroney — Hibernia is one of them. That’s a nation-building project that was decided by the federal government to the benefit of Newfoundland and the Atlantic accords that go with it.
Then I thought about every truck — hundreds per day — that leaves from either Argentia or Port aux Basques and goes to North Sydney. They pass through this area. It’s not just what might be in Prince Edward Island or New Brunswick or Nova Scotia. Every truck, unless it stops in Nova Scotia, goes through that isthmus.
It’s important. When I think about the opportunity for the government to contribute, they should have full flexibility, as they do with this amendment and as they do even when they choose to do things that are outside these infrastructure packages. It’s not just a New Brunswick or a Nova Scotia issue that we’re talking about here; it’s a Canadian issue. So I’ll be supporting the amendment.
Senator Simons: I want to state off the top, I was shocked when we began our hearings into the Chignecto Isthmus situation, to understand how dire is the threat to that area. How dire the threat is to the road system, to the rail system, also to the ecosystem, to the ecology and the archaeology of the region. I was horrified that Canada has not stepped up to protect this incredibly vital trade corridor. People live in the Chignecto Isthmus. If the whole thing goes under water, it’s going to be a catastrophic disaster.
We need to be planning, funding and negotiating like grown-ups. I would never doubt for a moment that this is an essential piece of vital Canadian infrastructure. I would never doubt for a moment that, given the resources of Nova Scotia and New Brunswick as two small provinces, that the rest of Canada should be involved. It’s not just the federal government or the Liberal government or the Trudeau government. It’s the people of Canada who need to come together to fix this crisis.
I want to commend Senator Quinn for his heroism and his vision in bringing this issue to the table.
All that said, you cannot hammer a nail with a rake and that is, I fear, what we are doing here. I will read section 92(10)(c):
Subjects of exclusive Provincial Legislation
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
10. Local Works and Undertakings other than such as are of the following Classes:
(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
Obviously, the isthmus is to the general advantage of Canada, and, obviously, it’s to the advantage of two or more provinces. But it is not wholly situated within a province.
We cannot use this declaratory power for this purpose. The result is going to be an escalation in the misuse of the declaratory power as a political posture.
Despite the respect I have for Senator Quinn and for his entire team, who have worked incredibly hard on this legislation, despite the respect I have for the people of Nova Scotia and New Brunswick, not to mention Prince Edward Island and Newfoundland and Labrador, we are trying to do a thing with a piece of legislation that is not fit for purpose.
When Senator Miville-Dechêne says, “What about the bridges in Quebec,” that’s because they’re in one province. It is because they are only in one province that the declaratory power makes any sense. This isthmus was previously under federal legislation, which was passed in, I believe, 1948. It was in the 1970s that New Brunswick and Nova Scotia asked to have the power back.
If we want to send a message to the House of Commons, to the government and to the people of Canada that this is an urgent national crisis, we should do so. I just think that using the extraordinary power of the declaratory power to make a point and to posture is a misuse of the Constitution.
Senator Miville-Dechêne: We still have time. I’m a bit surprised because we had three constitutional experts here. Only one alluded to the fact that there could be a problem because it was in two provinces and not only one province. But I asked directly to those experts, “Can we do that?” If we pass this bill, does it pose a problem? Nobody said there was a breach of any kind. So I understand what you’re saying, but we were not told that by our constitutional experts.
Senator Simons: I think Professor Leach said there would be, in the short term at least, a vacuum of legislation because the federal government would then take sole responsibility, and the provinces wouldn’t be able to exert any of their environmental or social standards. But that’s what they’ve said they wanted.
I understand that this will pass on division. We won’t have a voice vote because it’s just going to be me. But I just want to say for the record that I support the funding of this project, and I support putting pressure on the federal government, but I cannot support using the declaratory power in a way that is clearly not allowed, given the plain text of the legislation.
The Chair: I’m all for robust and fulsome debate, but I think we are ready to proceed.
Senator Simons: Yes. I think we are.
The Chair: Shall clause 4 carry on division, colleagues?
An Hon. Senator: On division.
Some Hon. Senators: Agreed.
The Chair: Clause 4 carries on division.
Shall clause 5 carry?
Some Hon. Senators: Agreed.
Senator Simons: On division.
The Chair: Carried on division as well? Clause 5 on division.
Shall clause 6 carry?
An Hon. Senator: On division.
Some Hon. Senators: Agreed.
The Chair: Carried on division.
Shall clause 7 carry? We have an amendment on JQ-S273-7-3-30.
Senator Quinn, you have the floor again.
Senator Quinn: I move:
That Bill S-273 be amended in clause 7, on page 3,
(a) by replacing line 30 with the following:
“7 (1) In response to an emergency, the Governor in Council may, by order, exempt”;
(b) by replacing line 32 with the following:
“cil considers to be in the interest of preventing damage to the environment or in the interest of public health or safety, from any re-”.
And it continues.
The reason we wanted to address this is because, as Senator Simons has referred to it, we wanted to make sure that there wasn’t a gap, and that the power would be there. If an emergency occurs that’s in the public interest, safety and security, a response can be taken.
That means if, during construction, a storm comes up and one of the constructed areas or one of the existing dykes starts to fail, they can move immediately to prevent damage during that kind of event.
This was put in after Senator Simons raised it. We did consultations with the First Nations, and we wanted to make sure we were responsive to the perceived gap or relinquishing of provincial law.
Senator Simons: I wanted to speak about 7(3), but that will come later.
Senator Miville-Dechêne: What I’m asking myself is — we had that discussion and we thought the clause was too broad. So what you did was to say only in the case of emergency can we not take into account the rest. But why did you add the environment if in this case it’s only to be exempted?
Senator Quinn: Because if a breach is going to occur, it’s going to affect the farmlands and the estuaries and the sensitive areas. What we’ve tried to do, we wanted to make sure we had limiting language in there that meant they can’t just go and do whatever they need to do, only in these cases. It was to put limiting parameters around it to respond to the discussion that we had in committee.
Senator Miville-Dechêne: Okay.
The Chair: Any other questions or debate? Shall amendment JQ-S273-7-3-30 be adopted?
Hon. Senators: Agreed.
The Chair: Agreed. Shall clause 7, as amended, carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 8 carry?
Senator Simons: I wanted to speak to clause 8.
Senator Quinn, clause 8 says:
The Minister may make regulations designating the contravention of any provision of this Act as an offence punishable on summary conviction and fixing the maximum fine payable for each offence.
But what provisions would be offences? What in the bill creates an offence?
Senator Quinn: An example of what that provision may be?
Senator Simons: Yes.
Senator Quinn: For example, if somebody goes outside the scope of the work and introduces a new piece of work that’s not part of the remediation of the issue, then the federal government, the minister, could intervene and stop and impose fines for that type of undertaking.
Senator Simons: I guess I’m still perplexed as to where are there offences? This is just a thing that says it’s federal jurisdiction.
Senator Quinn: This is exactly the same language that’s used in the St. Lawrence Act. We’ve taken it from there as a model to be used in this particular area.
Senator Simons: But I’m wondering if it’s an exact parallel, because the New Bridge for the St. Lawrence Act, for example, includes regulations to the paying of tolls and this does not. I don’t understand what function this serves in the bill and I would recommend that we vote against including this amendment because I don’t see where the offences are.
Senator Quinn: One of the things we talked about was whether we needed to have this clause in there or not. With my staff, I said we should put it in so we benefit from the observations of senators. If it’s a clause that my colleagues feel should be deleted, I would have no problem with that.
Senator Simons: There isn’t a one-to-one correlation that fits when bringing over the wording from the other act.
Senator Quinn: Thank you for that. It is a good point.
Senator Cardozo: It’s a good clause in that if in bridge building there are certain regulations, whether it’s for safety or green construction or whatever, and the government says this is how we build a bridge, and the builder abrogates that, then that’s when this clause would be useful. It’s not essential. They would probably do that anyway, I would think, in a contract.
Senator Simons: This piece of legislation isn’t about how to build a bridge. All this legislation says is that it is a federal responsibility. The only offence — there isn’t a legal nexus for there to be an offence, as I understand it.
Senator Quinn: If I may, it also grants that contracting authority in the previous clauses. I think we put that in there to cover the contracting authority as they’re building a dyke or an — if they don’t follow the appropriate standards that there’s a mechanism. But I think Senator Cardozo or somebody else may have mentioned quietly —
Senator Cardozo: If it’s a good comment, it came from me.
Senator Quinn: It must have been a comment from you, then, sir. If the federal government has jurisdiction, something untoward like that happens, they’re going to take action in any case. I know that from doing a $250 million project in Saint John.
The Chair: But the officials as well when they came before the committee.
Senator Quinn: With the permission of my colleagues, I would suggest we could remove that clause.
Senator Simons: We don’t have to remove it. We just say: Do we accept it: And we say no and it disappears.
Senator Quinn: Whatever the protocol is.
The Chair: Shall clause 8 carry?
Hon. Senators: No.
The Chair: Clause 8 defeated.
Amendment JQ-S273-9-4-16.
Senator Quinn:
That Bill S-273 be amended on page 4 by adding the following after line 16:
“Coordinating Amendment
9 If Bill S-13, introduced in the 1st session of the 44th Parliament and entitled An Act to amend the Interpretation Act and to make related amendments to other Acts, receives royal assent, then on the first day on which both this Act and section 1 of that Act are in force, section 2.1 of this Act is repealed.”.
That’s to ensure that we take out the non-derogation clause — the government would do the consequential amendment to this and any other bill.
Senator Simons: This is the thing, the non-derogation clause, that we’re not going to need a derogation clause because we don’t have a master derogation clause in the Interpretation Act but only once it’s passed.
Senator Quinn: It would happen automatically. Again, working with the First Nations, we wanted to make sure they understood that would be the case if this bill goes through.
The Chair: Shall this amendment carry, colleagues?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
An Hon. Senator: On division.
Senator Cardozo: I would like to thank Senator Quinn for this. I think it’s been an interesting process. I don’t disagree with the comments that Senator Simons has made, although I do have a feeling that perfection is often the enemy of progress. We’ve patched this country together for 150‑some years through a number of different things that have worked for some and worked okay, and sometimes we do hammer a nail with a rake and it works. We don’t make everybody happy, but we have a Constitution; we respect it more or less. We keep everybody happy, more or less. At the end of the day, we have a country and we take care of each other. To me, this is pretty close to perfection, and I’m okay using a rake to hammer that nail in and do this.
The Chair: Thank you, senator.
Senator Cardozo: I’ll be voting in favour of it.
Senator Simons: We’ve already done that.
Senator Cardozo: It’s already happened.
The Chair: Very much the Canadian spirit there.
Shall the bill, as amended, carry?
An Hon. Senator: On division.
The Chair: Carried on division.
Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of the amendments adopted by the committee in both official languages, including updating cross-references and renumbering of provisions? Agreed, colleagues?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to this report? The answer on record, colleagues, is no. Thank you.
Now the committee will go in camera to discuss text observations, the draft report.
(The committee continued in camera.)