THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, October 7, 2026
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:16 p.m. [ET] to consider the subject matter of those elements contained in Division 5 of Part 4 of Bill C-31, A second Act to implement certain provisions of the budget tabled in Parliament on November 4, 2025; and to consider the subject matter of Bill S-216, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good afternoon, honourable senators. Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. My name is David Arnot. I’m a senator from Saskatchewan and chair of this committee. I now invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters from Saskatchewan.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
Senator Dalphond: Pierre Dalphond from the De Lorimier division in Quebec.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator K. Wells: Kristopher Wells, Treaty 6 territory, Edmonton.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Pate: Kim Pate. I live here on the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabeg.
Senator McBean: Marnie McBean, Ontario.
Senator Dhillon: Baltej Dhillon, British Columbia.
The Chair: Senators, we are meeting to consider a draft report on our study on the subject matter of those elements contained in Division 5 of Part 4 of Bill C-31, Budget 2025 Implementation Act, No. 2, A second Act to implement certain provisions of the budget tabled in Parliament on November 4, 2025.
I’ll remind committee members that we have a reporting deadline of Friday, October 9. Therefore, the report needs to be finalized in the time we’ve allocated today.
You should have received a draft report prepared by the analysts in both official languages. I suggest we proceed with it. I’ll just ask a quick question. You received paragraphs 1 to 5 in advance last week; it’s the boilerplate. Is everybody okay with those first five paragraphs?
Hon. Senators: Agreed.
The Chair: Okay.
I’m proposing that we do each paragraph. Maybe I’ll ask a general question. My own view of this is that the analysts really captured the concerns that were raised and were quite comprehensive and that our observations have a limited effect in reality.
It’s important to capture what the witnesses said. However, I’m merely the neutral chair.
Are there any comments regarding how we proceed?
Senator Batters: I don’t have any changes to suggest until the second page. Then, as I continued to read further, I had a few short changes at the top of page 2.
Then I continued to read and read. These are four solid pages on a study that we only were able to study for 90 minutes. It’s much too lengthy on these different observations.
When we talked about the need to bring in some of these different topics that we heard about this — talking about court delays, self-represented and that sort of thing — I thought there would be a very short paragraph, a few lines, on each of those points, not almost a page on many of those points. It’s much too long, and I would like to see it condensed substantially.
Senator Miville-Dechêne: My comments are about the content paragraph by paragraph, so I will continue when you’re there.
The Chair: The analysts will have quite a task in shortening this, probably. That’s one of the things in a document, in a short period of time —
How would you suggest we proceed in addressing these issues, Senator Batters?
Senator Batters: Maybe the analysts could have a look. I think there is a fair bit of repetition in different parts, and things could be distilled down.
We’re not performing this type of short study to have lengthy — not quotes from witnesses, but there are lengthy recitations in respect of what different witnesses told us and suggested and that that sort of thing. That’s not what we’re here to do in providing observations.
I thought it was going to be short, with more observations on what we’re suggesting the government could do, not all the background information. Frankly, it wouldn’t take people much longer to watch the committee hearing than to read this.
The Chair: I’m concerned about the time.
In order to expedite this, does anyone have any comments? I’ll go paragraph by paragraph and ask for comments.
Senator Dalphond: I share the views of Senator Batters. We spent less than two hours altogether with witnesses.
It’s a good report, but it’s a long report for a small series of amendments. Shorter would be better, I think, in a powerful message.
That being said, if we’re going to spend two hours deciding if we have three pages instead of four, I don’t want that also.
Laura Blackmore, Analyst, Legal and Constitutional Affairs: Are we not there yet?
The Chair: Not yet.
Senator K. Wells: Given the circumstances we’re under, the report is fine. I would err on the side of being more comprehensive than less rather than trying to condense at this point. I don’t really see the value, given the time that would take.
The Chair: I’m worried it is going to take more time to amend this unless there are simple solutions.
Senator Clement: I fully agree with Senator Wells. I thought our conversation was good. We captured all these points. It’s important to be on the record with these points.
I also think changing it now is going to take more time, so I agree with Senator Wells.
Senator Batters: I would suggest this is a rare time when we didn’t see this at steering prior. It didn’t have to be at a steering meeting, but perhaps for the future, it would have helped if I had seen this at a steering level. Then I would have made these suggestions. Then analysts could have gone back and significantly distilled it down.
I understand that we’re now under a tight deadline. However, for the future, the length of a report should more adequately reflect the length of the actual study.
The Chair: I think everyone is right.
Senator Batters, you make very good points. One of the problems we will have is that steering can meet tonight and approve this report if it’s amended. If we don’t hit that deadline, we’re going to be in real trouble.
Senator Batters: Given the time constraints we have, I’m fine to go paragraph by paragraph. I’m saying that, for the future, it’s better if steering can look at the report first before it comes to the full committee, where we’re then trying to wordsmith something down into a page and a half.
The Chair: That’s a very good observation. Usually, it does happen that way.
Senator Batters: Usually it does, yes.
The Chair: We didn’t have a meeting.
Very good. To reiterate, I have approval for paragraphs 1 to 5.
We’re going to start on paragraph 6. Can that paragraph be accepted?
Senator Dalphond: I have proposed to consider adding the word “potential” on the penultimate line on page 1, paragraph 6, that highlighted potential significant downstream consequences.
I think it highlighted concerns, but to affirm that they will be causing these things —
The Chair: Is everyone okay with adding the word “potential”?
Hon. Senators: Yes.
The Chair: Did you see where that is?
Ms. Blackmore: Yes.
The Chair: That’s in agreement. The analysts have that.
[Translation]
Senator Miville-Dechêne: Can you hear me in the language of your choice?
In that paragraph, we object to what the department is saying in response to testimony from the Barreau du Québec and the Canadian Bar Association about improved access to justice that the reform will bring about. I would like to change the wording “testimony provided.”
[English]
I am reading the French version, obviously.
So we say that the Barreau du Québec and the Canadian Bar Association have testified. I find this formula a bit “avance” in French because we’re not sure that this particular reform will, in effect, slow down access to justice in the sense that it’s one tribunal with a set of judges.
[Translation]
There will undoubtedly be complainants who will move from one court to another. Therefore, I think it’s a little early to say with absolute certainty what will happen. Saying “advanced” shows that is what they’re advancing. You might not agree with that. Advancing, in that sense, means that they’re not sure it will happen, but it could happen. That would be the change I would suggest.
[English]
I don’t know what “avance” is in English.
Senator Dhillon: Is that not the same as what Senator Dalphond just said, regarding possible downstream —
[Translation]
Senator Dalphond: Yes. Potentially significant downstream consequences?
[English]
Senator Miville-Dechêne: That was in another place. I’m in the last part of the paragraph.
[Translation]
Senator Dalphond: Testimony provided . . . that the amendments —
[English]
Senator Miville-Dechêne: I would replace “the Barreau du Québec has testified” with “the Barreau du Québec avance.”
The Chair: Advanced.
Senator Miville-Dechêne: Advanced?
The Chair: Does everyone agree with that? Are the analysts okay with that instruction?
There is agreement.
Are there any other comments on paragraph 6? Okay, we’ll move to paragraph 7.
Senator Batters: On paragraph 7, I would suggest that we add to the very end of this short paragraph “and court delays.” I asked about that, and we heard considerably about that. I don’t see a reference to that anywhere in here.
The Chair: All right. I’m in agreement with that because it augments what we might be studying on court delays. Is everyone in agreement with that? Okay. It will be amended as stated by Senator Batters.
Paragraph 8?
Senator Batters: The first line says, “Urges the government to ensure adequate funding to meet the Tax Court’s needs.” Instead of the word “funding,” we ought to use “resources.” It could be more than just money; it could be judges, clerks and all those other things. “Resources” encompasses that all.
The Chair: Okay, very good. You’re batting 1,000 so far, Senator Batters.
Senator Batters: That’s all she wrote. Then, it’s just too many words.
The Chair: “Resources” instead of “funding” in paragraph 8.
Paragraph 9?
[Translation]
Senator Miville-Dechêne: In this paragraph, it says:
[We] were troubled to learn that the Department of Justice had not undertaken consultations with Tax Court judges.
However, in the transcript of the remarks, Justine Malone, Senior General Counsel in the Office of the Assistant Deputy Minister, says:
[English]
We did consult the Tax Court in terms of their views on these proposed measures, and the Tax Court was supportive of the increase in the monetary threshold.
Senator Dalphond: Yes, that’s my recollection, too.
Senator Miville-Dechêne: It’s written. My director did it.
The Chair: How do you want that captured?
Senator Miville-Dechêne: I think there is an analyst who wishes to say something.
Ms. Blackmore: We can certainly reword it. We were trying to capture that they affirmed that they had not consulted on the downstream consequences. I think it’s phrased together in the English but separated in the French by the reference to the other stakeholders.
Senator Miville-Dechêne: In the French, I would say it’s not clear.
The Chair: How do you propose to clarify that?
Senator Pate: We could say that members of the committee were troubled to learn that, although the Department of Justice had undertaken some consultations with the Tax Court judges and other relevant persons to understand, they might not have consulted sufficiently in order to fully understand the consequences.
The Chair: So, there are two —
Senator Batters: I have a question. Did they consult? Wasn’t it that they consulted way back? What was the time frame? Did they say? I recall they might have consulted, but it was quite some time ago. I’m not sure about that. Was it a previous bill? I just recall that it wasn’t recent.
Senator McBean: To weigh in on that, and I’m trying to listen to you here, but if you’re trying to say the significant issue was the downstream effects, isn’t that separated out by the semicolon?
Senator Batters: The semicolon should always start a separate potential sentence and not be used in the place of a comma. That should be a comma.
Senator Simons: We could delete that entire clause and just end the sentence at “capacity.” We already talked about the downstream effects; we don’t need to repeat that.
The Chair: Is Senator Simons’ suggestion going to fix the problem?
In the English, are you suggesting putting a period after “capacity” and striking the rest of it?
Senator Simons: Yes.
The Chair: Okay.
Senator Simons: I’m saying strike out the phrase that says, “and the further downstream effects of these proposed amendments,” because we already talked about downstream effects in the previous paragraph.
The Chair: So, in the English — we’re just dealing with the English side right now — Senator Simons is suggesting striking the words after “capacity” and starting the next sentence with “members.” Okay.
Is that acceptable? It seems that it is.
Now we should deal with the French version to make sure it’s congruent. In the French version, is there a recommendation to amend it to be in compliance?
Senator Miville-Dechêne: We can’t say they haven’t been consulted. They have been consulted on these proposed measures. That’s what it says in what the government has said. The Tax Court was supportive of the increase in the monetary threshold. Their estimate is 400 additional taxpayers coming in. So, it seems they were consulted. We don’t know the extent of that, but —
Senator Pate: “Not sufficiently consulted”?
Senator Miville-Dechêne: We don’t have anything in this that permits us to go one way or the other. Consultation can be many things, but we should not assume they were not sufficiently consulted.
Senator Dalphond: My recollection is that they consulted the judges at some point; I don’t know if it was many years or a few months before. The CRA provided the numbers. The Justice Canada witness turned to the CRA person to ask what the expected number of files was.
Senator Miville-Dechêne: We should be careful in the sense that we were not a part of those consultations, and it’s just what is said.
The Chair: We need words that would connote that, and it must be congruent.
Senator Miville-Dechêne: Did we decide what we would do in English?
The Chair: I think we did.
Senator Miville-Dechêne: Can you read to me what will be said in English? I’m sorry.
The Chair: Do you have that?
Ms. Blackmore: We have:
Considering the existing challenges faced by the Tax Court, members of the committee were troubled to learn that the Department of Justice had not undertaken consultations with Tax Court judges and other relevant experts to understand the potential impact on court operations and capacity.
Senator Pate: We have no evidence about their understanding of court operations and capacity. That’s true. We could say “insufficient consultation,” if we want.
Senator Dhillon: The notes I have are that Justin Malone from the Department of Justice Canada shared that they did not look into the impacts of the increase in the workload of the Tax Court. They did consult the Tax Court, and they were supportive of the increases.
The Chair: There seems to be agreement with Senator Dhillon’s suggestion. Do the analysts want to incorporate that? Did you get what Senator Dhillon was saying?
Ms. Blackmore: To confirm, is it adding “insufficient” between “undertaken” and “consultations” in the second line of paragraph 9?
Senator Pate: It has to be “sufficient.”
Ms. Blackmore: My apologies. “Sufficient.”
The Chair: For the English version, I think we have agreement.
To make certain about the French version —
Senator Batters: There is a small thing, but it is a personal pet peeve of mine. In the last line of paragraph 9, there is a semicolon where there should be a comma. It is “reform,” then a comma. It’s not the appropriate place for a semicolon. Thank you.
The Chair: Okay, everyone. Analysts? Fine. Thanks very much.
I will move to paragraph 10.
Senator Simons: I think it should be a full colon after “Tax Court systems, operations and capacity: engaging with relevant stakeholders, including . . .”
The Chair: All right. On the grammar, is there consensus? Thank you. Is there consensus on the whole paragraph, then?
We’ll move to paragraph 11.
Senator Simons: I think we could strike paragraph 11. I’m not sure we need it. I think it’s duplicative.
The Chair: Okay. Should we remove 11 altogether?
Hon. Senators: Yes.
The Chair: Is there consensus on shortening it up? Okay, very good.
We’ll now move to paragraph 12.
Senator Simons: Having just taken things out, I want to propose adding something in. I think the concern isn’t just that it’s hard for self-represented litigants; the concern is that self-represented litigants slow down the process. That was one of the questions that I raised with the witness. You know, chair, from your time on the bench that self-represented litigants — I don’t want to say they’re a drag on the system; that sounds unkind. But you know what I’m driving at.
The Chair: What words would you add to capture that?
Senator Simons: How do I phrase this? That “an increase in those who are self-represented can cause delays to proceedings . . .” Something like that. Senator Batters might have better wording.
Senator Batters: I don’t really have a different word for that, but I was just thinking about this section, at the end of paragraph 13.
There, it is saying that the committee recommends that, to ensure ample resources are available to better support self-represented litigants — I don’t agree with recommending that, necessarily. I’m not sure we heard enough about it to be able to recommend that, and I don’t necessarily agree that it should happen.
The Chair: Okay. I want to make sure we —
Senator Simons wants to connote that the process slows down when there are self-represented litigants because the court and/or others have to take time to explain, out of fairness to self-litigants, so they can be fairly heard or represented.
Senator Simons: But it’s not just that. We know that self-represented litigants, because they often don’t understand the rules of procedure and because they feel aggrieved —
The Chair: How do we capture that in a few short words?
Senator Simons: There are two former judges and a former prosecutor here, so perhaps they have better words for it than I do. “Gumming up the works” doesn’t seem correct.
Senator Dhillon: I’ll just include this in the discussion, whether there’s value or not, but there was also a conversation about the Tax Court being alive to this particular challenge and issue. They had implemented a pilot project called the navigator, which is showing promise. So, they’re certainly alive to the fact there will be challenges and issues, and they have implemented some strategies to address that.
I add that simply for our collective consideration, as it’s not lost on them that this is going to bring about potential challenges.
Regarding the issue around not understanding the system, there was also mention that there’s greater support and assistance provided by government lawyers to litigants during that time. It will make it that much more complex for us to figure out language.
Senator McBean: What if we were to remove paragraph 12 entirely and then, at the end of paragraph 13, add something, because this doesn’t have to be so obstructive? You’re saying there must be more resources to deal with the increase of self-represented litigants.
The Chair: It’s been suggested that we remove both paragraphs 12 and 13.
Senator McBean: My thought was to remove paragraph 12 and then to add to paragraph 13. Or you don’t even have to, because 12 is the explanation and 13 is the request, right?
Senator Batters: We heard no evidence to support paragraph 13. I think it’s legitimate to have some sort of background if the purpose of an observation is to note that this self-represented component is a considerable challenge for that court. So it’s fine to have something in paragraph 12; you may add to it. But I don’t think we should have paragraph 13 at all.
The Chair: Okay, so let’s try to find some words to add to 12, and we’ll probably eliminate 13.
Senator Pate: I would suggest that the limited number of witnesses meant that the committee was unable to fully explore the potential impacts of more self-represented litigants. However, the likelihood of that resulting in needing more court time and supports —
What we know to be happening everywhere else, because of self-represented litigants, is that there are more complaints about the judges, the process and the prosecutors. As my friend said, that is what “gums up the system.” It slows down the whole process. We were doing such a short study that we didn’t have time to fully explore that element, so the committee could recommend that the Department of Justice look at the array of potential consequences of more self-litigants and be prepared to remedy that — something like that.
The Chair: Your first sentence, “The committee didn’t have enough evidence to explore fully the increase —”
Senator Pate: “The consequences of the increase —”
The Chair: “The consequences of more self-represented litigants.” That’s just a statement. It’s succinct. That’s that. Okay.
Senator Pate: Do we not think the government should be considering that before they pass legislation?
The Chair: Okay, paragraph 13. It’s been recommended that it be struck.
Now we’re at paragraph 14. Are there any comments? Is it acceptable? Okay, thank you.
We will move to paragraph 15.
Senator Simons: I would return to paragraph 14 for a second.
The Chair: Okay.
Senator Simons: Somebody loves semicolons. We don’t need a semicolon after “initial assessment.” We could just have a comma there.
The Chair: Okay. Is that agreed to? Thank you.
We’ll now move to paragraph 15.
Senator Miville-Dechêne: Paragraph 15 is the same. It’s the same as paragraph 13.
Senator Batters: It’s the same. Also, on, “. . . to ensure that self-represented litigants are not inherently at a disadvantage . . .” Frankly, they always will be. It’s not even realistic to say you could get them to a position where they would not be inherently at a disadvantage. You try to lessen that disadvantage. If others agree, I would agree to take it out.
Senator Miville-Dechêne: Yes.
Senator Simons: Paragraph 14 does the work. We don’t need paragraph 15.
The Chair: There is consensus. Paragraph 15 is removed.
We’ll now move to paragraph 16. Is everyone happy with it? They are. Very good. Thank you.
Paragraph 17?
Senator Dalphond: Because they say that they expect some would be transferred. About 20% of those in the system will transfer to the new way; the witness from the CRA said that. Is it accurate to say that it would be subject to the pre-amended thresholds? That’s not my recollection. You can check the transcripts, but they said it’s about 20% of around 2,000 cases that will allow for that.
The Chair: How important is it for us to address that issue?
Senator Dalphond: It seems to affirm here that if you cannot apply it to those who were already in the system — well, maybe you found the excerpt.
Ms. Blackmore: I can share the testimony.
The question was from Senator Batters was:
. . . according to your estimates, how many additional taxpayers will be able to use the Informal Procedure each year under these new thresholds . . .
The response was:
We based our analysis on historical information that we have at the CRA. . . . something like 20% that we believe will actually avail themselves of that service. . . .
I believe Mr. Wong was addressing the potential for new cases, not that those cases would be able to transfer from the informal to the general. It’s the number of cases that would fall under that.
The Chair: So do we leave paragraph 16? Okay, there’s agreement there.
Are there any questions on paragraph 17? Is everyone okay with it? It appears that’s the case. Thank you.
We will now move to paragraph 18.
Senator Simons: In paragraph (c), I don’t think we want to say access would be determined for applicability in which the appropriateness of that option would be determined by an assessment of legal complexity rather than dollar value. That’s what we’re saying, right?
If something is too complex, it wouldn’t be well done on hybrid, but if it’s simple, it could be even if the sum is a little higher.
The Chair: What would you suggest, Senator Simons?
Senator Simons: I don’t think “access” is the right word. How about we simplify it:
The Canadian Bar Association proposed adding a third, hybrid option to the existing Informal and General Procedures based on legal complexity instead of a dollar value.
Senator Dalphond: “Eligibility”?
Senator Simons: “Eligibility” is the word. “With eligibility based on legal complexity instead of dollar value.”
The Chair: Okay. “In which eligibility would be determined on the basis of legal complexity instead of dollar value.” Is that okay?
Senator Simons: Yes.
The Chair: Is there agreement on that? Okay. So we’re at 11. And 18(a), (b) and (c) are okay. Is (d) okay? Okay, that’s agreed. Thank you.
Paragraph 19?
Senator Simons: I like the passive-aggressive tone of paragraphs 19 and 20. I appreciate the stiletto of that.
The Chair: Okay. So I think we have an agreement on paragraphs 19 and 20 then. Is that true? All right. Thank you very much. There is consensus.
That being the case then, colleagues, is it agreed that the report, as amended, be adopted?
Hon. Senators: Yes.
The Chair: It is agreed that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the report in both official languages, taking into account consideration of today’s discussion and with any necessary editorial, grammatical or translation changes as required?
Hon. Senators: Agreed.
The Chair: Thank you.
Is it agreed that the chair be authorized to table the report with the Clerk of the Senate?
Hon. Senators: Agreed.
The Chair: Thank you.
If there’s no further discussion, senators, I believe we’ve completed this task. Thank you, everyone.
Honourable senators, we are resuming our study of the subject matter of Bill S-216, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.
For our panel today, we welcome the Honourable Senator Jim Quinn, who is joined by Lyle Skinner, his Director of Parliamentary Affairs. We welcome you both to this committee.
We’ll begin with Senator Quinn for his opening remarks. The floor is yours, Senator Quinn, for seven minutes or so. Then we’ll move to questions. Thank you for attending today.
Hon. Jim Quinn, sponsor of the bill: Thank you, chair and committee members, for bringing this item to the committee. It’s a pleasure to be here this evening.
Once again, thank you for inviting me to appear in relation to Bill S-216, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.
The purpose of this subject matter referral relates to the narrow aspect of the interaction between the reference question initiated by the Government of Nova Scotia to the Nova Scotia Court of Appeal and Bill S-216. I understand this hearing is not about the policy merits of the bill or even the declaratory power, in general; those issues were debated extensively in the prior Parliament with the predecessor bill, Bill S-273. I understand some senators might want additional details regarding the reference question. The Government of Nova Scotia asked the Nova Scotia Court of Appeal to answer the following question:
Is the infrastructure that protects the interprovincial transportation, trade and communication links across the Chignecto Isthmus within the exclusive Legislative Authority of the Parliament of Canada?
Senators, you can see that this question is very different from the content of Bill S-216. Its very imprecision highlights problems that my bill does not have. For example, what infrastructure is the question referring to? By contrast, Bill S-216 refers to specific infrastructure comprising the Chignecto Isthmus Dykeland System.
In June 2025, the court issued their decision, and they declined to answer the question, in part because the court viewed that the question was vague due to the imprecision of the term “infrastructure.” The court then stated that there is no current federal law to be presumed to conflict with provincial laws.
Finally, the court felt that if they answered the question, the court would be wading into a political issue surrounding funding for the rehabilitation of the Chignecto Isthmus.
I will address the commentary by the court where they viewed that the reference would be of limited usefulness for parliamentarians in the deliberation of this bill. Senators, if the question were worded differently and the court had provided an answer, we would have a better indication of whether the dikeland system is already federal jurisdiction.
That would change the purpose of my bill in relation to the declaratory power but not the associated framework. The use of the declaratory power would have shifted from being substantive to symbolic. Neither impacts the merits of Bill S-216.
Colleagues, the decision of the court to not give an advisory opinion has no impact on whether Bill S-216 should proceed for the following reasons.
First, the reference question relates to which level of government has jurisdiction to legislate under our Constitution. In effect, the court was asked whether the undefined infrastructure fell under federal jurisdiction via paragraph 92(10)(a) of the Constitution Act, 1867. This is unrelated to my bill, which uses the declaratory power under paragraph 92(10)(c). Even if the courts determined that the infrastructure fell within provincial jurisdiction, it does not impact the ability of Parliament — not the government — to use the declaratory power. It is a political determination of Parliament alone to decide what works are for the general advantage of Canada.
The declaratory power confers jurisdiction; it cannot compel any funding from the federal government. Further, the issue of funding between the provinces and the federal government has been resolved. Bill S-216 cannot change or undo the agreement between the provinces and the federal government.
Passing Bill S-216 does not show that the Senate disagrees with the courts. The courts declined to answer the question; there is nothing, as a matter of law, to disagree with. There is case law that can be discussed during questioning.
Colleagues, the declaratory power is a valid constitutional tool that can be used by Parliament to transfer works that would otherwise be provincial jurisdiction into federally regulated works. It has been used for works that are clearly of an interprovincial or international — and therefore federal — nature.
Most recently C-15, which became law earlier this year, contained the High-Speed Rail Network Act, which invoked the declaratory power via section 4.
Further, the legislative assemblies in Nova Scotia and New Brunswick passed unanimous resolutions supporting the use of the declaratory power. The bill is supported by local Indigenous communities and the Société Nationale de l’Acadie, given its heritage significance.
Municipalities directly adjacent to the areas in New Brunswick and Nova Scotia support this bill. All these parties have reaffirmed their support, which gives me comfort as a senator from New Brunswick. After all, one of the roles of a senator is to represent their region and includes bringing forth issues that might otherwise not be heard. And trust me, colleagues, as a Maritimer, I know very well that when bringing issues forward to Ottawa — whether it was during my career as a public servant in Ottawa or as a senator here today — we often have to push harder to ensure our region is heard.
My Director of Parliamentary Affairs, Lyle Skinner, who is also a constitutional lawyer, is here with me to assist in answering any legal or technical questions you may have. Thank you very much for your attention.
The Chair: Thank you, Senator Quinn, for your opening remarks.
Colleagues, we’ll now move to questions from senators.
Senator Batters: Thank you to both of you for being here. Senator Quinn, thanks for bringing this important bill forward for your region. As you say, this is a very crucial part of our role as senators.
I want to start out by asking you why you think protecting the Chignecto Isthmus Dykeland System is a matter of national importance beyond Nova Scotia and New Brunswick, your province, and what would be the consequences of a disruption to this corridor for the rest of Canada?
Senator Quinn: Thank you for that question. I’ll start by saying I’m from Saint John, and the Isthmus is quite a ways away from Saint John. People ask me why I brought this bill forward, given I am the former CEO of the Port of Saint John. They ask whether it would be better if Nova Scotia became an island and the cargo came to Saint John. And my answer is that I’m not the CEO of the port. I’m a senator. I’m interested in regional issues, but I’m also a senator for Canada, and you have to raise your vision to see what’s in the important purview of the country.
So the Chignecto Isthmus is an important trade and transportation corridor. It has been for a long time. At the end of that corridor is the Port of Halifax. Halifax is a very important port in our system. It played a major role during World War I and World War II. It plays an important role today in our trade and commerce.
The Chignecto Isthmus also supports telecommunications between provinces and overseas. The undersea cable comes ashore and is connected to others through the Chignecto Isthmus. It’s also a region of significant cultural importance to First Nations and also to my colleagues in the Acadian community. Part of my background is Acadian, so I took a bit of a sense of pride in that. So it was something that needs to be addressed because it has been identified as an area at risk to the effects of climate change due to sea level rise, heavy winds, more frequent hurricanes, flooding, et cetera.
We came very close to disaster a number of years ago: Hurricane Lee came up the coast on a night when the moon was full, the tide was at its highest peak and the winds were perfect. The winds shifted just enough to stop the sea from being forced up into the Minas Basin. It came close, but it did not flood.
It’s a time bomb waiting to go off and needs to be fixed. Waiting for the disaster to happen is going to cost our country a lot more than addressing the issue now.
So I thought, as a regional senator, this was something that should come forward. Hence, I brought it forward in the last Parliament, where it passed, and reintroduced it in June when we came back for this Parliament.
Senator Batters: Thank you. I have a couple of quick questions about the declaratory power itself. Either you or Mr. Skinner, a constitutional lawyer, could answer, depending on what is appropriate. Can you confirm that the declaratory power cannot compel spending?
Senator Quinn: I’ll speak to that first.
The declaratory power cannot compel spending. The declaratory power is being used right now in bills we are considering. Declaratory powers are being used in Bill C-39, for example, where it talks about terminal operations and terminal infrastructure at ports. It has been used, as I mentioned, in Bill C-15, and what the declaratory power does is transfer responsibility for the regulatory and consultation process to the federal government.
In this case, both provinces want that to happen. Aboriginal communities want that to happen for reasons that my colleague Senator Prosper enunciated back in the spring. The declaratory power doesn’t compel spending at all, and the spending that has been tied to this project has been settled. It’s 50% from the federal government and 50% shared by the provinces. That’s where we are. What this does now would allow for that consolidation of consultations and regulatory review so that we save two to three years of time so the shovels can get into the ground sooner to prevent the risk of future flooding.
Senator Batters: Sorry. I’d best ask my last question because I’m probably stretching it a bit here. I would request a short answer for this one, please. If work is already interprovincial or international in nature, does that invalidate the use of the declaratory power?
Lyle Skinner, Director of Parliamentary Affairs, Office of the Honourable Senator Jim Quinn, as an individual: No, it wouldn’t invalidate the use of the declaratory power, senator. The best example of this is the International Bridges and Tunnels Act, where international bridges and tunnels — those that connect Canada to the United States — already fall under federal jurisdiction under paragraph 92(10)(a). But in that federal statute, the declaratory power is invoked. If we think about the Gordie Howe International Bridge connecting Windsor with Detroit, the declaratory power falls under that. In those cases, it may give a less substantive meaning to the use of the declaratory power, but certainly Parliament is free to legislate symbolic measures as well.
And just to contrast a little bit regarding Senator Quinn’s bill, there are other aspects of the bill beyond the declaratory power. There is a waiving of permitting processes in the case of emergencies and things of that nature. So if Senator Quinn’s bill does become law, and presumably if the courts determine that the Chignecto Isthmus Dykeland System were already under federal jurisdiction, the piece of legislation would have policy applications beyond the declaratory power.
Senator Batters: Thank you.
[Translation]
Senator Miville-Dechêne: Good afternoon, Senator Quinn.
I took part in the first study of the bill, and now we’re talking about constitutional issues. What struck me while reading is that the Nova Scotia Court of Appeal decision stated:
[English]
The question was seen as potentially being used for political purposes, particularly concerning funding disputes between Nova Scotia and the federal government. . . .
[Translation]
I personally wonder if that nullifies your bill somewhat. It has often been said that your bill is a political issue that somewhat replaces the negotiations that normally take place between the provinces and the government for funding. That’s what I’m wondering about.
More importantly, it seems to me more and more that this idea is contradictory. Both provinces argued in court that the Chignecto Isthmus was already exclusively under federal jurisdiction, while you say you need a bill to fill the vacuum. It seems to me that there is a difference of opinion here that is a little hard to follow. Why are the provinces directly involved saying that this is already under federal jurisdiction and you are saying that it needs to be clarified?
[English]
Mr. Skinner: Thank you for the question, senator. So the unique nature of the court declining to answer the question is we don’t know as a matter of constitutional law with which side of interprovincial or intraprovincial — in other words, within a province — it aligns itself.
It wouldn’t be a contradiction, as I said in response to Senator Batters. The declaratory power can already be used even if a matter falls under interprovincial jurisdiction.
Just for a little more clarity, in relation to the bill, there is the emergency permitting process that would allow for the waiving of conditions. There are also other aspects in relation to federal jurisdiction, and this is apart and separate from the funding dispute.
There are multiple statutes that assign a residual or plenary jurisdiction to particular ministers. I’m thinking of the Department of Public Safety and Emergency Management Act, where there is a residual or plenary jurisdiction for all matters that fall under emergency management. So normally, under emergency management, provinces would take the lead; however, in areas of federal jurisdiction, the minister — so the department, ergo — would be having more awareness.
Is there a contradiction in terms? My answer to that would be that it’s not necessarily what governments argue. Again, the Government of Nova Scotia drafted the reference question by order-in-council to the Court of Appeal. Separate from that, we have unanimous resolutions of the legislative assemblies of Nova Scotia and New Brunswick, across the political spectrum, advocating supporting unanimously the use of declaratory power. On that basis, there should be weight given to that request.
[Translation]
Senator Miville-Dechêne: In that scenario, what happens with all the provincial legislation? Until now, the provinces have historically agreed clearly that it is a shared jurisdiction, since provincial laws have been passed and certain things have been paid for. Suddenly you want changes, but isn’t there going to be a vacuum in those territories?
[English]
Mr. Skinner: It’s an excellent question — and one that I had multiple discussions on with legal counsel within both governments. We sat down and actually performed the exercise on the question that you’re raising, which is fundamentally this: Does the creation by the invocation of the declaratory power remove from jurisdiction laws of provincial application? No, it would not. There wouldn’t be a presumption of creating a void. So the provincial laws would be declared inoperative.
There’s a Supreme Court case from 1982, Multiple Access Limited v. McCutcheon, where Justice Dickson highlighted this aspect saying:
. . . there is no true repugnancy in the case of merely duplicative provisions since it does not matter which statute is applied . . . .
If we look at the head of power that is assigned under jurisdiction, so we’re talking about 92(10)(a) and 92(10)(c) — and separately from that 92(13), which is property and civil rights — it would also give the provinces the ability to legislate. But no, it wouldn’t create a legislative vacuum, nor is there an operational conflict between this presumed federal statute and the respective provincial statutes of New Brunswick and Nova Scotia.
Senator Prosper: Thank you, Senator Quinn. It’s so good to see you and Lyle. You sort of got into this with your opening remarks, Senator Quinn. There was discussion of paragraph 92(10)(a), but you’re relying on the declaratory power in paragraph 92(10)(c). Can you explain the difference between the two in terms of application? How does this relate to your overall vision of the intent of this bill you see here?
Senator Quinn: I’ll ask my constitutional lawyer to answer the first part, and I’ll pick up on the second part.
Senator Prosper: Sure.
Mr. Skinner: Senator, when you look at the Constitution Act, 1867, there are federal heads of power under section 91 and provincial heads of power under section 92; 92(10) operates as an unusual way where, although it’s under the jurisdiction, if you will, of provincial legislation, it’s the exceptions that would actually fall under federal jurisdiction. So for 92(10)(a), it’s:
Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province . . .
This refers to works that connect and facilitate interprovincial transportation and trade. It extends beyond the limits of a sole province. By contrast, in relation to the declaratory power, they’re matters that normally fall within provincial jurisdiction, so a work — but not an undertaking — that would normally fall under provincial jurisdiction except by an act of Parliament that declares it to be for the general advantage of Canada. That’s the distinction.
Again, the wisdom of whether or a work should be declared for the general advantage of Canada — as the courts have repeatedly said — is for Parliament alone to decide, as that’s inherently a political decision.
Senator Quinn: Right. So, when we started this journey, I was not familiar with the declaratory power, so we did an investigation. I wanted to know where it has been used before. It’s been used over 500 times before, and that was as of three years ago. Since then, it’s been used in bills: bills that we have seen before us, bills that we have passed and bills that we are now considering and, hopefully, will pass. We’ll find out how that goes.
So that was the vision I had as a person who comes from the transportation sector, knowing the importance of that corridor to the Port of Halifax and to various regions of Canada. Let’s not forget that the things that go down that rail system are coming from the Midwest of the U.S., the far reaches of Canada and Central Canada, down through and into Nova Scotia for export overseas, but imports are coming in the other way.
There are billions of dollars of trade crossing that isthmus every year. It’s so essential to the economy of our country. Now, here we are in this day and age, with a Prime Minister who is very focused on building our economies and diversifying our trade corridors and trading partners, and I see where this fits so well into exactly what he’s trying to achieve. He talks a lot about the need for ports and for transportation conduits. This is one of the primary ones from the eastern part of our country.
So the vision was to ensure that we took the measures necessary to protect this essential corridor. Back then, we weren’t so worried about the essential trade corridors of the country. Things were different with our largest trading partner, but things have dramatically changed now. And that only underscores the importance of protecting this land now to ensure that Canada can continue to have that corridor that comes down through to Eastern Canada.
Senator Prosper: You spoke, Senator Quinn, about the court decision in the Nova Scotia Court of Appeal, which essentially declined to answer the question put forward to them. But what does that actually mean in relation to your bill? You talked about vagueness in terms of infrastructure and things of that nature, but does it really have any bearing on your bill?
Senator Quinn: I’ll answer and then turn to Lyle. For me, it had no bearing. For me, the important message was that the courts said this seemed to be wrapped up in some political discussion around funding. My colleague Senator Miville-Dechêne talked a little bit about that in her question.
At the time, when the provinces were giving me their full support, I asked the provinces to please not make this about money. That’s a negotiation that they must have between the feds; this is nothing to do with money. I can’t, as a senator, have a money bill on the table. To me, it was about that political decision and that the courts said, “We’re not going to waddle into the middle of this. That’s something for Parliament to consider and decide.”
Lyle, did you want to add anything?
Mr. Skinner: Sure. Senator, the Court of Appeal, as referenced, are not binding, but they’re advisory decisions. Part of their concern was simply the nature of the reference question that was submitted to them. So there are imprecisions in the wording of the question itself, but as a matter of law, the reference question has no bearing whatsoever on the use of the declaratory power. As a matter of policy, it’s for the committee and the Senate and Parliament as a whole to make that determination.
Senator Prosper: Thank you.
Senator Simons: Senator Quinn, first, I want to commend you for bringing the attention of the Senate and the country to the crisis of the Chignecto Isthmus. I really appreciate the work you did when we were together on the Transportation and Communication Committee and wrote a report that dealt specifically with this crisis.
However, because this is not my first rodeo up the isthmus, I was very persuaded by the testimony we heard in Transport and Communications from Dr. Andrew Leach from the University of Alberta, who pointed out that because the isthmus is already an interprovincial piece of infrastructure, it is already in the purview of the federal government. He pointed to the 1948 legislation in which Parliament took over the management of the system.
This is from his direct testimony:
Works – “physical things” – and undertakings – “an arrangement under which physical things are used” – can fall within provincial jurisdiction only if they lie wholly within that province. . . . There is no sense that the systems in New Brunswick and Nova Scotia could operate effectively or be updated independently of the other.
In a written brief, he referred to this declaration as “unmeaning.”
I understand you want to bring focused attention to this problem, which is real, but if, as Mr. Skinner suggested, this is largely a symbolic act, what is the import of this? This is already interprovincial infrastructure, which falls in the federal ambit.
Mr. Skinner: Sure. Thank you for the question.
We don’t know the actual question that was posed or the essence of what you’re framing; the courts have never made a determination of such. In giving their opinion and the history, they alluded that the provinces themselves have had, for centuries, legislation on the maintenance of the marshland system. In reference to the 1948 —
Senator Simons: The Maritime Marshland Rehabilitation Act.
Mr. Skinner: Yes, I have it here.
Senator, that was a question of ownership where there was an agreement that was then drafted, transferring ownership back to the provinces —
It’s very important to clarify this, senator. That act did not relate to jurisdiction; it related to ownership. Another way to look at this is that there is actually an interprovincial bridge that’s partly owned by New Brunswick and Nova Scotia on the Missaguash River. That’s the natural boundary river between New Brunswick and Nova Scotia. That is interprovincial in nature, but the ownership is that of the provinces.
Also, just because that aspect of that work is interprovincial, it doesn’t make the Trans-Canada Highway system that connects through the provinces and to the rest of Canada interprovincial.
Depending on what is chosen for the construction of the dikes, you could have a situation where there is no actual direct connectivity except for a water control structure or aboiteau on the Missaguash River. It’s important to distinguish that, generally speaking, there might be a general advantage to two or more provinces, or to Canada, if there were a cohesive, intricate dikeland system protecting both provinces. However, each province, right now, based on their own legislation, is free to act individually; that wouldn’t be good for the region or for Canada.
Senator Simons: Apart from symbolism and bringing attention to the problem, I don’t see that this changes anything, legally.
But I want to move to my next question, which is regarding subclause 7(3) of the bill. That subclause would retroactively deem any necessary authorizations under federal acts to have been issued after the completion of any work on the dikeland system.
Presumably, this could lead to quite a broad circumvention of federal legal requirements. It looks to my office as though this language is borrowed pretty precisely from the Champlain Bridge in Montreal when it was declared to be under federal jurisdiction. However, that was a government bill.
Subclauses 7(1), 7(2) and 7(3) seem to be a way to deke around important environmental considerations. Could you explain which authorizations would be waived under this retroactive provision?
Mr. Skinner: Certainly, senator, but the jurisdictional matters have no provenance in terms of whether they are initiated by a government bill, a non-government bill or even a private bill.
As it says under clause 7, the triggering conditions by the Governor-in-Council are:
In response to an emergency . . . in the interest of preventing damage to the environment or in the interest of public health or safety, from any requirement under any federal Act . . .
So, regarding deeming it retroactive, it’s very limited in application simply because — as Senator Quinn alluded to — the region is waiting for the unfortunate probability of a hurricane that hits at a king tide.
Senator Simons: This is a legitimate threat. I am seized with the importance of this issue.
I guess my concern is that, when you say it’s no different if it’s a Senate public bill or a government bill, the executive have the blessing of having an entire phalanx of Lyle Skinners, environmental engineers and experts in all these issues. They would have comprehensively studied what it entailed when they gave this power for the Champlain Bridge. I’m concerned because we’re talking about a very sensitive ecosystem — one that needs environmental protection and one with really profound meaning to the Indigenous Peoples of the area. It is also important to Acadian history. It behooves us to ask what authorizations could be waived retroactively for environmental reasons. Before we go wading in during an emergency, what are the restrictions around that?
Mr. Skinner: I don’t have a list in front of me, but the triggering condition is in the interest of preventing damage to the environment. If you’re seeking a waiver to damage the environment, that would not be in the interest of preventing damage to the environment, so there would be a contradiction in law. I’m certain that folks at home with an interest in environmental legislation would be quick to file for an injunction should such a situation occur.
Senator Simons: I just recall, from our testimony around that last time, there were differing opinions about the best ways to manage the estuaries and wildlands.
Mr. Skinner: This is in a situation where there would be a catastrophic humanitarian disaster because a hurricane breaches the dikes and causes flooding.
Senator Simons: Yes, and then I wouldn’t want you to go get a permit; I understand. Okay.
Mr. Skinner: Exactly. Those are the triggering conditions that would satisfy that. It’s not a backdoor end run around the Impact Assessment Act, which, if the legislation were passed, would voice more jurisdiction on the importance of the Impact Assessment Act because it would be a federal work under the definition of the Canadian Environmental Protection Act.
Senator Simons: Thank you very much.
Mr. Skinner: Yes.
Senator McBean: Senator Quinn, the declaratory power has been used hundreds of times since Confederation to assert federal jurisdiction. The majority of cases have involved the approval of local railway routes, tramways, canals, bridges, dams, tunnels, ports, mines, mills, grain silos and oil refineries. Your bill focuses on the dikeland system itself. Many of the arguments in the bill support legislation because it relates to nationally significant transportation, trade and communications.
Why is it important for Parliament to assume jurisdiction over the dikeland system — 21 kilometres of land in width — rather than pursuing measures targeted directly at the rail, highway and communications assets, against which the disruptions would have a broader national consequence?
Senator Quinn: I’ll respond first.
First, this bill does not take into account the 21 miles of breadth of the dikelands. It’s the defined aboiteau and dike system itself. It’s not that wide. I was talking about it during the spring debates, and it gave the impression that we’re talking about the entire isthmus structure that goes from the Bay of Fundy Minas Basin to the Northumberland Strait on the north side of that. It’s not; it’s very defined to the corridor.
Before I turn it over to Lyle, we just approved the High-Speed Rail Network Act, which uses the declaratory power. They have to define that rail track, but they’re going to be cutting through different areas of Quebec and Ontario, some of which is acknowledged to be lands that are environmentally sensitive and important. However, under major projects, for example, it is deemed to be in the interests of Canada; it’s for the benefit of Canada.
This corridor is similarly for the benefit of Canada. I would just leave it there and turn it over to Lyle if he has anything to add.
Mr. Skinner: Sure. I would add, for the record, that it’s not unprecedented for a dike or levee to be declared for the general advantage of Canada.
In 1886, Parliament passed an act to declare the St. Gabriel Levee for the general advantage of Canada. One of the two benefits of having that larger federal jurisdiction would be the Impact Assessment Act.
The federal government, by assuming jurisdiction, would have a coordinated approach as opposed to a more bifurcated process. Yes, there are agreements for having better coordination between the federal and provincial governments.
Also, and I believe the panel tomorrow will speak about it, by invoking the declaratory power in the context of the duty to consult and the honour of the Crown, it would foist that responsibility on the Government of Canada, which in my legal — dare I stray into policy — view would allow for a more coordinated approach in that regard too in discharging the government’s section 35 obligations under the Constitution Act, 1982.
Senator McBean: Maybe this is a naive question, but do you think it would have been easier to name it the Highway 2 Protection Act? I looked it up. That’s the highway that goes through the Chignecto Isthmus. Then we’d be protecting a highway instead of this big area of land.
Senator Quinn: The purpose of this involves the fact that the effects of a flood would wipe out the dikelands themselves, the marshes and whatnot, and a consequence of that would regard the road and railway. This is about taking preventive measures to protect exactly that asset.
It’s not just the highway. In our bill, we talk about the highway, the communications and the cultural importance to Acadians and First Nations in the area, including Fort Folly and others. There are all those aspects.
There are also environmental aspects with respect to the unique species that are found in that area that need to be protected.
Senator McBean: Sorry, but even there, aren’t you reaching beyond the declaratory powers of protecting what’s in the national interest?
Senator Quinn: No, but the declaratory power is geared toward protecting the corridor. Taking those actions will have other benefits for these other groups that are affected or of interest.
The other factor here is both provinces. We’ve received letters of support from Newfoundland and P.E.I. because of the intricacies of Halifax being a centre for so many things, and for trade going from across the isthmus, if you will, up to North Sydney and going on the Marine Atlantic ferries that supply goods and materials to Newfoundland. There is a secondary service, but they can’t act independently because they don’t have the volume of vessels to take the cargo over.
So you have the total region politically. We’ve had changes of government, and they’ve reaffirmed their support for getting this project under way and getting it done under the auspices of the declaratory power.
Mr. Skinner: As a follow-up, the criticality of the situation right now — because there are rising water levels — the rail berm that is that Canadian National rail line, which is interprovincial in nature, is holding back the water because the dikes are too low.
The purpose is to protect. There is a distinction. So whatever is to the general advantage of Canada, it’s simply for Parliament to make that determination. But there are already interprovincial works that attract the national interest, which Senator Quinn has identified. However, there are also local matters to protect the town of Tantramar or the town of Amherst from flooding. The dikes serve different purposes in the sense that it would be difficult to protect only, for example, interprovincial works, if that helps provide you some clarity.
Senator McBean: Thank you.
Senator Pate: Thank you for appearing. It is very interesting to hear about dikes.
Senator K. Wells: The Pride caucus was last night.
Senator Pate: Yes. During testimony on the previous bill, Jessica Ginsburg, representing the Mi’kmaq of Nova Scotia, talked about and suggested the bill should have a guarantee that decisions made pursuant to it shall be consistent with the goal of reconciliation and the Crown’s duty to consult obligations. I know there have been moves to ensure there is some consultation.
How do you see this being practically implemented when it sounds like so much of the decision making has already been done? My understanding is there may be a discrepancy in how consultation is being approached.
Earlier, you raised issues around consultation that this current government has had, particularly with Indigenous Peoples on major projects. What further consultation did you undertake? What do you say in light of her testimony? Have you addressed all those issues? If so, how do you see that you have?
Senator Quinn: Thank you for the question. The answer is that, yes, we involved Aboriginal communities and associations in Nova Scotia and New Brunswick from the very beginning.
I happen to have the experience of having worked in Indigenous and Northern Affairs Canada and having tuned into Aboriginal issues that are important. I’ll save other commentary about how I feel if they’re being executed well today. In any case, we talked with the associations, the leadership and their officials extensively.
We did the same thing with the Acadians, the Société Nationale de l’Acadie and the Société de l’Acadie du Nouveau-Brunswick. They wrote letters of support. We had many discussions with them to ensure that we understood the concerns they had. We tried to ensure they were safeguarded in the bill’s construction. It was the same with the First Nations people.
Senator Pate: If Ms. Ginsburg appears on this, would you expect that she would not have those concerns any longer?
Senator Quinn: I think that if she appeared today, she may have concerns relevant to the determination of the government and its current agenda of fast-tracking projects.
If she was talking about this, if she appeared tomorrow and was looking at this project and was asked the question about the consultations — and if she had talked to her colleagues — I think she would say that there were good consultations that were undertaken, taken seriously and consciously taken into consideration as the bill was built.
There are two dynamics: this particular bill and the larger picture of what the government is doing today with projects.
Senator Pate: In your opinion, would your bill strengthen the role of Indigenous Peoples to protect their Indigenous rights to consultation by having it be basically under the —
Senator Quinn: Well, section 35 guarantees those rights. Of course, we passed legislation that said that there are no non-derogation clauses, so I would expect that the First Nations will be duly consulted, as they should be.
Mr. Skinner: As a follow-up, senator, Ms. Ginsburg’s testimony when we dealt with the predecessor bill was instrumental in having amendments occur to garner further support.
One way that the government could continue to discharge its duty to consult, but also just fostering the spirit of reconciliation, is that now, when the minister enters into agreements, the definition of “person” was included to also include an Indigenous governing body or Indigenous organization. That links back, again, to if jurisdiction is conferred and elevated to the federal level, then the discharging of the duty to consult would fall under the Government of Canada and, therefore, the minister could enter into those types of agreements and/or in consultation with the provinces to ensure that there’s Indigenous involvement.
The issue of flooding in the isthmus affects Indigenous Peoples on both sides of the interprovincial boundary. That also speaks to the nature of why federal involvement in relation to the duty to consult is important to have a common baseline approach as opposed to the duty being discharged differently depending on the perspective of the Government of New Brunswick versus that of the Government of Nova Scotia.
Senator Pate: Thank you.
Senator Clement: It’s good to see you, Senator Quinn and Mr. Skinner. Like Senator Simons and Senator Miville-Dechêne, I was on the Transport and Communications Committee when you came before us at that time. You have been a strong advocate for your region and for this bill. It’s been impressive. I wished to say that.
I’ve appreciated the questions from my colleagues.
They asked a lot of the questions I would have asked, but I want to come back to the questions asked by Senator Simons.
This isn’t about money. I get that; it can’t be because it’s not allowed. However, there is a negotiated funding plan in place in that the provinces and the feds came together and hashed out a plan. If that plan is in place and it looks as if people are satisfied, why is your bill still necessary? That’s number one.
Another question is around environmental issues. Your bill was drafted under a previous government. I am getting the sense that environmental groups are feeling less comfortable in this current context. There might be an issue around your bill sending a message that the federal government might now be able to exempt itself from the obligations of environmental assessments. There is unease in some environmental sectors. Will your bill add to that? I’m not sure I clearly understood the answer you provided to Senator Simons.
So, first, why is it necessary when we have this negotiated plan? Second, what would you say to environmental groups that might not trust that this government isn’t going to exempt itself?
Senator Quinn: In terms of the first part — why this bill is still required — we just had a brief discussion where Aboriginal communities were involved in helping to build it. They were the ones who were really so supportive of using the approach as proposed in the bill. At the time this bill was proposed, I would suggest that maybe Aboriginal relationships were somewhat strained in the provinces. They were looking for consistency in the approach. They looked to the federal government and wanted the federal government to be the lead responsible for the Aboriginal consultations. I believe that to be the case today.
With respect to the environment, I don’t believe the environmental laws of our country, regarding this particular project we’re talking about this evening, would be lessened or watered down — not to allude to a flood or anything — particularly given that the groups that have been involved in the discussions to this point also involved some of the environmental groups. In some of the discussions I’ve had, and in walking the dikes — if anybody wants something to do so, just walk the dikes — they’re very conscious of the environmental considerations in those areas, as I alluded to. There are special and unique species in the dikelands area. It goes beyond particular groups and the dikelands structure itself to what it means in the area.
I think I have answered way, but, Lyle, I don’t know if you want to add anything.
Mr. Skinner: Senator, right now, as you’re aware, the scope of what falls under the remit of federal jurisdiction is limited under the Impact Assessment Act. Therefore, it is non-negligible impacts with respect to, for example, migratory birds and Indigenous Peoples’ culture, physical heritage and land use. A marine environment would be another example.
If the declaratory power were used, it would also include the non-negligible adverse effects of the activity or project. That links back to the Canadian Environmental Protection Act, or CEPA. A part that’s interesting is that in the CEPA was included a bill of environmental rights and an ability for citizens to flag issues with someone under the Commissioner of the Environment and Sustainable Development. I apologize; I lack the terminology off the top of my head.
If we look at this and ask what the alternative is, the alternative would be the environmental legislation of the two maritime provinces. Having appeared as a witness before the New Brunswick Legislative Assembly, there are some provisions of the New Brunswick environmental laws that don’t necessarily have the same protective standards as the Canadian Environmental Protection Act. Therefore, in a way, it’s almost increasing some of those standards and consultation processes.
With respect to the bill itself and regarding those permit waivers, it’s a very narrow window, as I stated before, to seek approval via waiver if there is damage to protect, damage from the environment or in the interests of public health and safety. In one of those cases, it’s to prevent a catastrophic humanitarian flood.
As I said, it wouldn’t be presumed to be an end run, a back door and/or a loophole around the entire environmental regulatory scheme. It would be patently obvious if something like that were needed because it would be dealing with an extreme emergency or to protect the environment itself.
Senator Clement: Thank you. That’s helpful.
There is a changed context, and there is a different level of trust out there. As you have said, this is a particularly sensitive area, environmentally.
Have you consulted with any groups recently on the environment in particular?
Mr. Skinner: Most recently, I had a conversation with Ms. Ginsburg, but, no, I haven’t recently spoken to any environmental groups.
Senator Clement: Okay, thank you.
Senator Tannas: Thanks very much for being here and for all the work you’ve done on this, Senator Quinn. I have two questions.
First, I see in the briefing note that the 10-year funding agreement between Canada, New Brunswick and Nova Scotia is $650 million in total; that’s the pot. It says that planned construction will run starting next year, in 2027. If there were a change in jurisdiction, would that potentially have an impact on the plan to start in 2027? That is my first question.
Can you comment on that?
Senator Quinn: Yes, I can. Thank you.
I recently spoke to both provinces, and both provinces noted exactly what you just said: They welcome the opportunity to have the declaratory power invoked because, although they’re saying that would start, they would have to go through their individual consultative processes. They are starting some discussions, but this would put it under a single-window approach. They said it would be a time savings of two to three years, from start to finish, because they wouldn’t be bogged down in consultations.
I can speak to that because when I did a major project in the Port of Saint John, the Aboriginal, environmental and fisheries consultations were heavy, but we were able to work and take advantage of the skill sets there to bring them in to become part of the project team. In fact, some of the young Aboriginal students who were biologists became part of the engineering firm and were doing the biological work that needed to be done on the fish habitat and restoration side.
That is a demonstration of how things can be sped up when you bring people together.
Senator Tannas: And that is within the federal jurisdiction as opposed to two jurisdictions, plus whatever jurisdiction DFO has.
Senator Quinn: Exactly.
Senator Tannas: Good. Second, do you have letters of support from both provinces?
Senator Quinn: We have unanimous legislative approval supporting the bill in Nova Scotia and New Brunswick. This was followed up with last spring when one of our colleagues in the Senate talked to me about where they are now. I went back to both provinces, and they said they were still supportive. We also had letters from P.E.I. and Newfoundland because of the unique relations we have down east. We don’t all have the same opportunities to access facilities in every province that other provinces might enjoy. For example, the children’s hospital in Halifax is a specialty centre for kids’ unique illnesses down east. We refer kids all the time from my hometown, Charlottetown and elsewhere.
Senator Tannas: Do you have updated correspondence from after the signing of the agreement and concurrent with this particular bill that says both those governments are on side?
Senator Quinn: I don’t have correspondence, but I have had discussions in Nova Scotia at the ministerial level and with the premier in New Brunswick.
Senator Tannas: But no —
Senator Quinn: By the way, in the Nova Scotia case, the minister involved asked me if I felt Premier Houston would be willing this week to meet, but they were supportive.
Senator Tannas: Thank you. So is there nothing that we could take in? I was going to ask you if you could provide a record to update.
Mr. Skinner: Sure. Just a general view of both provinces is that the unanimous resolutions of both legislatures speak for themselves.
Senator Tannas: But that doesn’t reference Bill S-216; it references Bill C-273.
Mr. Skinner: That’s correct, and those are currently held by the Senate Transport Committee, but we can certainly provide the committee with those resolutions —
Senator Quinn: It was reconfirmed by both provinces that the resolution for Bill C-273 stands.
Senator Tannas: Well, that’s as good as anything.
Senator Quinn: Exactly.
Senator Tannas: Are those verbal assurances?
Mr. Skinner: Verbal.
Senator Quinn: Yes.
Senator Tannas: Okay, thank you.
Senator Batters: I just want to clarify that last part there. You said that there is a unanimous resolution from both legislatures. It’s dealing with your previous bill that you had, Bill C-273. So both the Nova Scotia and New Brunswick legislatures have unanimously resolved that they support it and it applies to your current bill?
Senator Quinn: Right, and the current bill is exactly the same, other than the — Bill S-2, I think it was, took away the need for the non-derogation clause, which we had in Bill C-273. It was in Bill C-273 as part of the consultation discussions we had with First Nations. So the non-derogation clause was there, and it was taken out because of Bill S-2, I think it was.
Senator Batters: The government bill and the non-derogation clauses, yes.
Senator Quinn: The government bill, yes. We don’t have to do that anymore because it’s there.
Senator Batters: Absolutely. Our committee studied that.
Senator Quinn: Also, in the case of New Brunswick, it was one political party when Bill C-273 was there; it’s a different political party today. However, the premier of that party told me personally that they were still solidly behind it.
Senator Batters: Mr. Skinner?
Mr. Skinner: If I may, just for the benefit of senators, the declaratory power is unique in the Canadian Constitution because it upends the traditional co-operative federalism model. What that means is, as a matter of law, the Parliament of Canada can unilaterally remove what that is of provincial jurisdiction federally. So there is no requirement for the consent of the legislatures; it can just happen.
Senator Quinn and I sought that expressly on that point because at the time, constitutional expert Andrée Lajoie talked in her book Le pouvoir déclaratoire du parlement du Canada about that as being the part of the declaratory power that sits slightly discomforting in our current concept of Canadian federalism. But since there are unanimous resolutions from both legislative assemblies, it mitigates that cause for concern. So, there is no legal requirement for that to occur, but it was sought and approval was given.
Senator Batters: Thank you.
Senator K. Wells: I have a simple question: Does the federal government support this bill?
Senator Quinn: Well, we’re at the Senate stage right now. I believe that there are members of the government — and remember, it’s Parliament who will make this decision. This is not a government decision; this is a parliamentary decision. In the last Parliament, it passed by quite a significant majority. The idea was to get it over and let the elected chamber have its debate and go through its process. I’m still there. Let those folks do their job as parliamentarians.
So the question of government is overridden by this particular bill needing to be approved by Parliament and not necessarily by government. But if you talk to members who represent the ruling party in our Parliament, you may get differing views. I don’t know. That’s something you may be more aware of. But I do know this is a parliamentary decision, and we need to give them the opportunity to have that discussion.
Mr. Skinner: Senator Wells, my understanding as a matter of process with respect to Senate public bills is that cabinet only makes a determination of whether to support it once they arrive in the House of Commons and are debated.
Senator K. Wells: Sometimes.
The Chair: Thank you very much to the witnesses for joining us here today. It has been very helpful to the work that we have in studying your bill, Senator Quinn.
We will conclude our study of this bill at a meeting tomorrow with further witness testimony.
(The committee adjourned.)