Moved third reading of Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada, as amended.

He said: Honourable senators, I rise today to begin third reading of Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.

First, I want to thank the many witnesses and my colleagues on the Transport and Communications Committee. Their input and questions led to amendments that I proposed and that our committee chair reported upon last week. I believe that those amendments are responsive to that input and make the bill that much stronger.

However, before I start to discuss the riveting aspects of the Constitution or to provide comments on Senator Cotter’s statement at second reading that the Chignecto Isthmus is one of the hardest words in the English language to pronounce — and, I will also add, to spell — I want to tell you a story about what this bill really is and what it isn’t.

This bill is not directly about money. The Constitution limits our ability as senators in introducing money bills. This bill is really about fairness and understanding. It is about representing a regional issue that might not otherwise make its way into our parliamentary system. It is about doing our jobs as each of us represents a region of Canada, with the vast majority of us doing so as independent senators — something the Fathers of Confederation might be surprised by as our institution continues down the path of modernization.

These are simple concepts that I cannot believe I have the privilege of standing before you today to highlight, as they are of fundamental importance.

Colleagues, to be frank with you, I am humbled by the fact that I stand before you in the Senate of Canada. Admittedly, if it were not for a twist of fate resulting from an accident while serving aboard a Canadian Coast Guard vessel as a 21-year-old fellow, I might not be here — please hold your applause. The accident changed everything for me. It presented that fork-in-the-road scenario, except the fork had a sign that pointed in a direction I knew would eventually be followed, steering me away from my life’s goal of becoming a harbour pilot in my hometown of Saint John, New Brunswick, just like my dad, uncle and generations before me. My life’s plan — probably like most of my honourable colleagues with whom I have the pleasure of serving today — would be led to believe that I am not supposed to be here.

I grew up in an impoverished area of Saint John, on the shores of our port. I know what it means to come from not only a region that has fewer opportunities but from a family that should have had limited opportunities in life. My siblings and I were fortunate to have parents who steered us in directions that included hard work, decency, compassion and, notably, education. Our mother had a firm hand on the tiller of our lives’ journeys, ensuring as best as she could that we steered clear from trouble. Believe me, in my case, I look back and recognize she had to have both her hands on the tiller of my life.

All of us worked hard because we understood that we wanted to be the best we could be, and higher education required the resources to dare dream of going to the University of New Brunswick, St. Francis Xavier University, Dalhousie University or nursing school. I have five sisters and a brother — three doctors and three nurses — and then there was me.

I started my post-secondary education in Dalhousie’s pre-med stream, and, while finishing that path, I knew I was destined to go out to the sea. What I mean by that is not my former role as the CEO of Port Saint John, but, simply, I was destined to be a sailor, sailing ships out of Saint John to other ports of call in Atlantic Canada, the western hemisphere and, indeed, around the world.

I share this story with you because, while not unique for families across this great nation, it does symbolize — for me — that we Maritimers have to work harder to be seen and heard.

The strategic location of the Chignecto Isthmus is well known to sailors. In fact, one of the first debates in this very chamber in 1867 was about the creation of a canal between the Bay of Fundy and the Northumberland Strait to reduce shipping times. As New Brunswick Senator Frank Black said in 1929, the Chignecto canal project was the oldest canal project in North America. The first road ever constructed in North America was in this area. As far back as 1686, a canal across the Chignecto Isthmus was recommended by the French government.

In 1868, the Government of Canada inquired about building a canal along the isthmus, and it recommended that the canal was of vital importance to the development of intercolonial trade in the country. In 1870, the federal commission stated, “Inseparably connected with the growth of intercolonial trade is the construction of the Baie Verte Canal.”

Today, it is known as the Chignecto canal.

The federal commission continued:

The advantages that must accrue, not merely to the Dominion as a whole, but to the commerce of the Maritime Provinces, are so clearly pointed out by the Boards of Trade of all the leading cities of Canada. Such a canal would reduce the shipping route between Montreal and Saint John by 500 miles. Clearly the area is of national importance.

We often think of the Intercolonial Railway as being the linchpin of why the Maritime provinces joined Confederation. It is the same rail that goes through the Chignecto Isthmus today, which is protected by a series of dykes and aboiteaux constructed by the Acadians in the 1600s to control the world’s highest tides, create farmland and protect people and communities.

However, during the Confederation debates at the Quebec Conference in 1864, the delegates of New Brunswick and Nova Scotia stressed the importance of this canal being built as a condition of Confederation. Unfortunately, senators, due to financial depression and the waning influence of the Maritimes, this canal was not built. Parliament did pass a project to create a Chignecto ship railway to transport ships across the isthmus, and they used the declaratory power. Sadly, that, too, was never completed.

Colleagues, as a sailor in my youth, I can attest to why the Chignecto Isthmus is of national importance, and, had a canal been built, it would have transformed the economy of the Maritimes. Instead, we have the Intercolonial Railway — in its present form, it’s the main CN line — as well as the Trans-Canada Highway linking Canada to Nova Scotia and the Port of Halifax through New Brunswick.

Senators, a freak accident resulted in my taking that fork I mentioned earlier, and, to paraphrase Stan Rogers, I ended up in a situation where “I’ll go to sea no more.” It meant that I was now fated for desk jobs, and I joined the offices of the Canadian Coast Guard in Ottawa. There, I first became acquainted with a situation that any one of my colleagues from Atlantic Canada can relate to: Does Ottawa truly understand Eastern Canada?

Now consigned to desk jobs, this basic question of understanding stuck with me. It led to me coming to Ottawa with the goal of rising through the ranks of the public service, but in a way where I never forgot my roots, and where I could help my colleagues from Ottawa understand the Maritimes and ensure that decisions are made in a fair and equitable way.

Colleagues, why are the simple ideas of fairness and understanding so hard to implement such that we — Maritimers and Newfoundlanders — have to raise our voices in order to be heard? It seems that at almost every opportunity, the federal government turns a blind eye to the struggles of the East, or presents mountains to climb in the hope that we will be heard and supported.

I have a basic premise where, since Confederation, the influence of the Maritimes has been in decline from the most important thing that motivates a government: seats in the House of Commons. More seats means that a region’s concerns are more easily understood, and, with that, it creates an implicit understanding of fairness for the region.

Senators, the Maritimes is the only region in Canada that has significantly lost seats since Confederation. In 1867, Nova Scotia and New Brunswick had 19 and 15 seats respectively. By 1872, this grew to 21 and 16 seats before decreasing to the 11 and 10 seats we have today.

Prince Edward Island, by contrast, initially declined joining Confederation in part due to concerns of its influence being impacted by the larger provinces. The 1873 terms of union between the Dominion of Canada and Prince Edward Island included the promise of two members of Parliament for the three counties of the province. What this means, senators, is that in 1873, P.E.I. had six members of Parliament. However, by 1913, the Island was reduced to three MPs.

Again, I stress that the Maritimes went from 43 seats in 1873 to 25 MPs today.

This inequity resulted in an amendment to the Constitution known as the Senate floor rule, where no province can have fewer MPs than senators, which is why Prince Edward Island has 4 MPs and New Brunswick only has 10 MPs today.

Colleagues, recall the words “fairness and understanding.” At the time of the proposal to introduce the Senate floor rule, both Prime Minister Sir Robert Borden and opposition leader Sir Wilfrid Laurier called it a fair compromise. Yet, history isn’t that simple, colleagues. It was the view of my colleagues from Prince Edward Island that the province was entitled to six seats. Senator Benjamin Prowse from Prince Edward Island expressed this frustration of declining influence on debate of the senatorial floor clause.

He said:

I speak for the Government of Prince Edward Island and the people that I represent when I say that we do not now accept and will not accept in this settlement our claim for representation in Prince Edward Island. Our forefathers, the Fathers of Confederation, fought for six long years on the one contention that we should have six representatives, until the Dominion of Canada came to the little island with the white flag and conceded those six members. The Government today have acknowledged our claim by allowing us four, and we are only entitled to three. We do not come up here as serfs from the little province on the plea of poverty or being a small province. We come here as men to men, equal to any other part of the Dominion of Canada claiming our just rights. We are not asking for any favours; we do not want any favours, but we do demand our rights that were conceded to us at the time of Confederation.

Senators, the current seats in the Maritimes represent a “fair compromise.” However, there is a second clause in the allocation of seats in the House of Commons that is decidedly unfair. The grandfather clause originally stated that no province could have fewer seats than it had in 1986. This was subsequently changed to each province having no fewer seats than in 2019. Thus, other provinces now cannot lose seats, meaning that they will not be in the same position as the Maritimes of having declining influence, and they simply have more voices at the table.

Would the “fair compromise” have been truly fair if Maritimers had known that, in the future, other regions would not have their seats reduced?

Senators, I raise this issue of electoral demographics to indicate that the Maritimes must continually and loudly advocate for things that are taken for granted in other provinces. As I said, as individuals and as a region, we simply have to work harder to be heard.

I will outline the broad support this bill has from Atlantic Canada, which also underscores the importance of this Senate public bill being passed in this chamber so that it can be sent to the elected chamber for their consideration.

This takes me to the heart of Bill S-273. Senator Clement and Senator Dasko said it best in committee: This bill and the related court reference are representative of a breakdown and failure of negotiations between the Province of New Brunswick, the Province of Nova Scotia and the Government of Canada. This bill does several different things — including invoking the declaratory power — but it is also a political means that we have to indicate to the members of the House of Commons and the government that there needs to be a change from the status quo, and this could help restart negotiations.

Colleagues, one of the things that was taken away from our deliberations in committee — and became public — was the insistence by my premier in New Brunswick that he wanted 100% of this project to be paid for. What we’re doing today by looking at this declaratory power does not require the government to pay 100%. It requires them to do nothing, if they choose. Today, the deal is that there are 50-cent dollars that are at the limit of the Treasury Board’s authority for the Disaster Mitigation and Adaptation Fund.

I’m talking about determining how we restart negotiations and have fairness, as we have seen through the recent billion-dollar funding announcement for the Quebec Bridge, which is presently under federal jurisdiction via the declaratory power. This brings to mind that Canada is committing to paying 60% of the costs — not 50% — with CN Railway providing 15% and the Province of Quebec paying the remaining 25%. There is room for negotiations to continue. The fact that the federal government is asking private sector users of the Quebec Bridge to contribute shows that there can be creative means to limit the expenditures of both levels of government while ensuring those private entities that have a direct stake in the use of a critical transportation corridor pay as well. However, that’s not for me to negotiate, but for the federal government to consider should the declaratory power be invoked by Parliament.

The declaratory power places the Chignecto Isthmus Dykeland System under federal jurisdiction, which means that it is different from a programming status than other pieces of critical infrastructure. It would be no different than the Gordie Howe Bridge or the Champlain Bridge. My point is that the declaratory power shows that the scale of the $650-million Chignecto Isthmus Dykeland System project does not fit the scope of the federal Disaster Mitigation and Adaptation Fund, where large-scale projects start at $20 million and projects like the isthmus can only be negotiated, as I said, at 50-cent dollars because that is the Treasury Board’s authority under that program for projects such as the isthmus.

Again, per the 1886 example of the use of the declaratory power to build dykes in Montreal, the use of the declaratory power does not compel the Government of Canada to fund a project. However, it is useful as a starting point for negotiations.

Colleagues, some may have concerns as to whether the declaratory power is the appropriate tool in this circumstance. It absolutely is.

I reject the view that the dykeland system can be considered exclusively one continuous work that extends beyond a single province. Maritimers like to help each other, and the fact that New Brunswick and Nova Scotia are cooperating in developing an integrated series of dykes to protect the entire area is a testament to interprovincial cooperation. However, there is no legal obligation for the Province of New Brunswick, for example, to do so. They could easily repair the dykes on the New Brunswick side of the interprovincial boundary on the Musquash River — which divides Nova Scotia and New Brunswick, in the way of the isthmus — and lead Nova Scotia to flood. The provinces cooperate because they understand the importance of not being so provincial in perspective, and that this project is in the national interest given the critical nature of the transportation and communications infrastructure and the essential elements of protecting unique farmlands and ecosystems. Just as importantly, it is the significant heritage and cultural area for our Mi’kmaq citizens as well as Acadians.

Also, the declaratory power applies to the Gordie Howe Bridge, which connects to Michigan and is therefore not wholly within the province of Ontario. This does not invalidate its use.

Yes, honourable senators, there is a reference before the Nova Scotia Court of Appeal seeking to answer this question: Is the infrastructure which protects the interprovincial transportation, trade and communication links across the Chignecto Isthmus within the exclusive legislative authority of the Parliament of Canada? That is seeking a judicial determination of the scope of 92(10)(a) of the Constitution Act, 1867. However, that does not preclude us as parliamentarians from taking action using the declaratory power under 92(10)(c).

The courts and witnesses in committee are quite clear that it is for Parliament alone to determine whether a work is for the general advantage of Canada. I would add that if this bill quickly becomes law, then there is no need for a determination by the courts over 92(10)(a). This means that Bill S-273 is a tailor-made solution for the Chignecto Isthmus that will not have unintended jurisdictional impacts that a reference case could. It provides a politically negotiated settlement rather than a judicially imposed determination.

Colleagues, if you are uncomfortable with the use of the declaratory power in general, or even in these specific circumstances, I want you to take comfort in the following: The bill has more support on the East Coast today than Confederation had at the time of Confederation. I do not say this lightly.

The four governments of Prince Edward Island, New Brunswick, Nova Scotia and Newfoundland and Labrador support the bill because of the criticality of protecting the trade route for vital supplies, as well as ensuring access to health care facilities such as the IWK Children’s Hospital and other specialty medical services in Halifax. Both the Nova Scotia and New Brunswick legislative assemblies passed all-party resolutions supporting this bill.

The towns in the isthmus directly impacted by rising sea levels due to climate change, Tantramar and Amherst, also support the bill. The Union of the Municipalities of New Brunswick supports the bill out of a concern — which Senator Robinson raised in committee — that if the dykelands are paid for under the Disaster Mitigation and Adaptation Fund, then there will be no additional money left for infrastructure projects in Atlantic Canada as our allocation will be spent.

The Société de l’Acadie du Nouveau-Brunswick, the Fédération acadienne de la Nouvelle-Écosse and the Société Nationale de l’Acadie support this bill as well because:

. . . it provides a political signal that protecting Acadian cultural and heritage sites is in the national interest, where Senators are undertaking their constitutional role in representing regions and protecting minority language rights . . .

Senator Cormier will speak about this aspect in more detail later today.

Most importantly, colleagues, the First Nations support Bill S-273. I am often asked this question: What is the practical effect of Bill S-273? It uses the declaratory power and also allows for the Government of Canada to enter into contracts to help build, maintain or operate the dykeland system.

Chief of Fort Folly First Nation Rebecca Knockwood said the following in committee about why her community supports Bill S-273:

Considering the significance of this area for the Mi’kmaq, considering that the federal government’s consultation and impact assessment process is more thorough and considering that we cannot afford to wait for the jurisdictional battle to be settled, the Mi’kmaq chiefs in New Brunswick would ask you to support the bill put forward by Senator Quinn. The land should be transferred to federal jurisdiction until this project has been completed. . . .

If the declaratory power is used, it means that the federal government would take the lead in respecting the duty to consult with the affected Mi’kmaq communities and leadership. The declaratory power is essential to this commitment toward reconciliation. Chief Knockwood is correct that the federal government would provide a more thorough consultation process. Further, because the impacts will occur on both sides of the interprovincial boundary, the federal government is best positioned to ensure proper coordination.

Amendments were made in committee at the request of Nova Scotia organizations representing the Mi’kmaq to address any concerns they had by ensuring that there is a non-derogation clause that respects section 35 of our Constitution concerning Aboriginal treaty rights, using limiting language to reduce the scope of emergency powers during construction and ensure that the Mi’kmaq can participate in the contracting process. Senator Prosper will be moving an amendment to the preamble to further reflect this commitment toward reconciliation.

Honourable senators, Atlantic Canada is speaking with one voice, asking both to be treated fairly and for you to understand that the Chignecto Isthmus is to the general advantage of Canada. We often look at the Senate as a place of sober second thought in our role as a revising chamber. However, the constitutionally entrenched role of the Senate to represent regional interests is even more important. The House of Commons will make the determination of whether they agree with us, but our unique design gives us the ability to introduce Senate public bills and allows us to raise issues that simply cannot be heard or understood at first glance by the House of Commons. The Maritimes have only 25 MPs, and as I said, this makes it more difficult for us to be understood.

Honourable senators, crucially, jurisdiction also confers a moral responsibility to act. Rising sea levels due to climate change are the most existential threat to Atlantic Canada. The same oceans that provide for our prosperity threaten to tear us apart.

The United Nations said that the Chignecto Isthmus is the second-most-threatened area in North America due to climate change, after the city of New Orleans.

The Government of Canada has a duty to keep this country together. The Maritimes are not junior partners in Confederation and deserve to be understood and to be treated fairly. The only way for the Senate to make this clear to the House of Commons is to vote yes for Bill S-273 and allow them to have their deliberations and make the final decision.

Thank you so much, honourable colleagues. I hope for and look forward to your support.

Yes.

We heard evidence at committee where exactly that type of situation was described, and the numbers are, of course, in our transcripts. But sea-level rise is increasing faster and faster every year. I can say that with some certainty because when I started at Port Saint John in 2010, we had docks on the west side of our port that were dry. When I left in 2021, those docks were regularly covered with water. That’s attributable directly to the sea level rise that I personally saw as the CEO of Port Saint John.

I certainly won’t attempt to sing that song here, but I will say that I have been asked about this. Here I am, a senator from southern New Brunswick, from the city of Saint John — the south end of Saint John. As young lads, Senator Cormier and I used to play street hockey together down in Saint John. It is a fond memory we both share.

The reality is that as a former CEO of Port Saint John, I could say that Nova Scotia’s becoming an island might be to the advantage of my former port because they would get residual business. There’s no question about that. But as I’ve said to people who asked me why I am taking this on, it’s because I’m a senator in the Senate of Canada. I have to raise my level of understanding and vision to my region and to Canada and what’s important to Canada.

That’s why I’ve been championing this particular initiative. This area is so vitally important to our transportation system but also to the protection of the Trans-Canada Highway, the rail line that runs through there, the farmlands that have been established and, as importantly, to the people of the area, who know that their cities of Amherst and Sackville will be flooded — one at 35%, and one at 50-60%. We heard that in committee. That could lead to loss of life. It will lead to loss of property.

I am fully committed to doing my best in my job to represent this regional issue because otherwise it might not be heard. That’s why I talk so passionately about getting this through the Senate. We’re the Senate; we’re not the elected chamber. If my colleagues here decide to pass this, the bill goes to the elected chamber. Let them have their debate. Let them decide whether this will go to the next step.

If it goes to the next step, it goes to cabinet. If cabinet decides to do something, they have that choice. They can decide to do nothing. They can decide to leave it where it is now, where negotiations have maxed out in terms of the money, the 50-cent dollars.

Again, I’m urging that we pass this bill so it gives a chance for additional negotiations. I don’t expect that we will get 100-cent dollars. That’s not what this is about. This is about fairness. This is about equity. This is about being treated fairly.

Two or three weeks ago, we heard about a well-deserving project being funded at 60% by the federal government. You have heard me speak about other projects that have been funded at 100%. I’m just looking for at least the fairness of what we witnessed at the 60% level. But that’s not my decision. It’s not the decision of parliamentarians. It will become the decision of our cabinet should they choose to go in that direction.

I say let’s give them the chance in the lower chamber to have their debate. If it goes to the government, the government will decide.

Honourable senators, I rise today to speak very briefly on Bill S-273, the Chignecto Isthmus Dykeland System act. As we know, this bill proposes to declare the Chignecto Isthmus Dykeland System and related works to be works for the general advantage of Canada. It would invoke the federal declaratory power under section 92(10)(c) of the Constitution Act to enable the federal government to assert its exclusive legislative authority over this project.

Let me begin by thanking Senator Quinn for bringing this initiative forward and, more importantly, for shedding light on an area of the country that is important to Atlantic Canada. Its extensive transportation systems and parklands are important for economic growth and vitality in the region and for wildlife preservation and maintenance. This is deserving of greater understanding and, indeed, dialogue.

However, respectfully, the government does not believe that the mechanism being sought in Bill S-273 is the appropriate measure, and it cannot support this bill for several reasons, some of which I’d simply like to put on the record today.

Senator Quinn mentioned correctly that the invocation of the declaratory power would bestow legislative authority over the area but does not in and of itself carry a funding requirement. That is correct, but money is relevant to the bill and to the project and the need for remediation. The government is aware that the project will be an expensive one and that the provinces are hoping that the government will be forced, morally or otherwise, to assume the full cost of the work to be done.

Colleagues, as you know, Senator Quinn mentioned that both New Brunswick and Nova Scotia have applied for funding under the Disaster Mitigation and Adaptation Fund, a program under Infrastructure Canada. This is a collaborative cost-sharing approach. It would enable the federal government to work with the provinces to find a middle ground, a common ground, for dealing with the financial components of this project.

I know their discussions have begun, and the federal government would be pleased to continue them.

Most importantly, and Senator Quinn alluded to it, the issue of jurisdiction over the isthmus is currently before the Nova Scotia Court of Appeal on a reference that was put to the court by the Government of Nova Scotia in July 2023.

The Government of Canada, along with a few other provinces, applied for and was granted intervenor status in this matter. It respectfully disagrees with Nova Scotia’s position that legislative jurisdiction over the isthmus already rests with the federal government.

As such, it’s the position of the Government of Canada that this issue should not be dealt with until the court has clarified the issue of jurisdiction. To do otherwise is to pre-empt the question that’s currently before the Nova Scotia Court of Appeal.

Finally, colleagues, Bill S-273 would also likely impose new obligations on the government, and this could have the unintended consequence of setting a new precedent that would affect or could affect similar land systems in the future, including those that may be affected by climate change and require remediation.

For those reasons, the government cannot support Bill S-273 in its present form. The government believes the Nova Scotia Court of Appeal should hear arguments from all parties and intervenors and pronounce with an informed and adjudicated decision on that basis.

Thank you for your kind attention.

Senator Gold, will you accept a question?

Yes.

Senator Gold, thank you for your short speech and intervention. I have to ask a multifaceted question.

I have referred to fairness, and fairness — to me — means that Atlantic Canada needs to be treated like the rest of Canada.

The second thing I want to raise is that there are other examples where the declaratory power was used in court proceedings. In this case, we’re using two legitimate, separate pieces of the Constitution of Canada. I’m certainly not going to go toe to toe with you on the Constitution, Senator Gold; that’s your area of expertise.

I propose that under subsection 92(10)(a) they are seeking a ruling as to whether this area can be treated as a system and have federal jurisdiction take priority.

As I said in my speech, right now this area could be dealt with individually by provinces, but the provinces understand and recognize that it needs to be dealt with as a system. There is no sense protecting Nova Scotia or, vice versa, New Brunswick if the other side is going to flood. It has to be done as a complete package. That is why Nova Scotia and New Brunswick made application to the National Disaster Mitigation Program, or NDMP. Why did they apply to NDMP? Because they were against a deadline. They had to submit an application by a certain date. At the end of the day, close to the deadline, they came together and submitted their application, and it resulted in being recognized for 50 cents on the dollar.

At the same time, they understand what I’m trying to achieve with subsection 92(10)(c) with respect to having the declaratory power invoked to allow jurisdiction for a number of reasons. As I indicated in my speech, it allows for action sooner rather than later.

Other than the filings, the court process has not started, as I understand it. We may be a long way away from actually having proceedings in a court. Every day that passes is important in terms of taking action. Would you not agree?

You have learned your lessons well.

There is no need to worry about going head to head. Your reading of the Constitution is correct, so you will get no argument from me.

My purpose in making this speech was simply to put the government’s position on the record because this is a complicated issue for the Government of Canada. It’s complicated because there is much infrastructure in this country that is at risk due to climate change.

You mentioned the moral obligation, and that’s really the thrust of the government’s position. Comments about precedent are exactly that.

The government’s position remains, however, that constitutional jurisdiction over the isthmus — an opinion on which was requested by the government of the Nova Scotia Court of Appeal — is necessary, but it doesn’t preclude the political negotiations to which you referred.

Of course, fairness is important. I have nothing to add to your general comment. Every case and situation has to be looked at in its own right, and apples need to be compared to apples and oranges to oranges.

You mentioned the Quebec Bridge and other things. These are significantly different situations. I understand the impact that it may have on your reading of situations.

The government’s position is as I have set out. I know that the leaders of the four groups have reached an agreement that this will be voted on at third reading, and I simply wanted to put the government’s position on the table. It’s going to the other place. They will have a chance to examine it, and I’m sure you and others will follow it with interest once it’s in the other place.

Senator Gold, I listened to your remarks. I don’t want to get involved in debate on this, but, number one, the declaratory powers have been used many times before in very similar instances, so it is constitutional. At our committee, we heard from a number of constitutional experts, and all of them said it’s constitutional.

I have seen this game plan before from governments. I saw it from the previous government when they were trying to renege on fundamental responsibilities in terms of the Samuel De Champlain Bridge, because it was politically expedient, for a variety of reasons, not to invest in it and to try to push that off to the Quebec government.

The first question: Won’t you agree that the declaratory power has been used many times?

Second, the Province of Quebec didn’t have the wherewithal to rebuild the Samuel De Champlain Bridge, and it would be nearly impossible for any province. It required billions of dollars. Just like right now in Atlantic Canada, with regard to critical infrastructure like the Chignecto Isthmus — and we have heard from many witnesses that it touches a number of provinces, the whole region of Atlantic Canada — they don’t have the wherewithal to go forward with a project like this. Why doesn’t the government recognize that if we, as a federal government, don’t step up on infrastructure building, what do we need the federal government for in this country?

Thank you for your question. Let me be clear, as I thought I was.

Of course, the declaratory power is a legitimate exercise of the Constitution. It has been used 474 times, or thereabouts. Early on it was used for grain elevators — those in the West will recall that — and continued well into the 1980s. I never questioned the availability of that. The government is of the view that it’s not the appropriate measure to deal with this.

I also agree, and I think I acknowledged — however briefly — the importance of the isthmus to the economy and communities in Atlantic Canada. It’s an expensive project and it’s a project that, in my understanding — and you heard it in the committee — is at risk because of rising sea levels and climate change.

I have also said that the government has a program in place to which both provinces have applied, and the government is prepared to negotiate and discuss with provinces an appropriate formula for getting the work done, just as the Government of Canada did with the Province of Quebec and the Canadian National Railway Company when it bought back one of the bridges in Quebec City for $1.

This is an example of cooperative federalism at its best, and the Government of Canada believes that’s the right approach in this project as well.

Will you take another question, Senator Gold?

Yes, of course.

Clearly, this issue isn’t a political one. It’s at the essence of what Canada is all about, because infrastructure is what brings our country together. You can see that it is not political when in two legislatures — the legislatures of Nova Scotia and New Brunswick — all political parties unanimously voted and are standing in unison saying that they need the declaratory power to be put into place because the government isn’t negotiating in good faith.

As you know, Senator Gold, we only go to court when people can’t come to terms in good faith and come to an agreement. That’s why it’s before the courts. That’s why the premiers in both provinces are calling on the representatives of the upper chamber as a last resort to put pressure on the government and say, “This critical infrastructure, facing climate change, needs to be addressed.”

First, Senator Housakos, I did not say that it was partisan or political. I was echoing Senator Quinn, who talked about political negotiations.

Second, I cannot accept your characterization that the federal government has not been “negotiating in good faith” or that that’s the reason why the Progressive Conservative government of Nova Scotia asked its court to interpret or provide an opinion on whether the undertaking as a whole fell within the legislative authority of Canada automatically by virtue of subsection 92(10)(a).

In both respects, I don’t disagree that addressing the problem in the isthmus and elsewhere in Canada where important infrastructure — whether it serves one province, many provinces or the country as a whole — is threatened by degradation caused by climate change is an important feature of what it is to be a country.

The federal government will do its part, along with the provinces and territories where appropriate.

Senator Gold, will you take another question?

Yes.

Senator Gold, if my memory is correct, the reference from the Government of Nova Scotia to the Nova Scotia Court of Appeal was done well before this bill was introduced in the Senate. Isn’t that the case?

I believe that the reference to the Nova Scotia court — if my memory serves me correctly — was in July 2023.

I’m trying to remember when this institution was asked to put down and vote on an issue that was before the courts. It’s not our role to dictate to the courts what to say or to try to influence the courts. I am struggling very strongly with this because we have an issue that is in front of the court, and we’re asking this chamber of Parliament to take a position on it.

Perhaps, Senator Gold, you can enlighten me, but in the 21 years I have been here, I haven’t seen a similar situation.

I may be disappointing you in my answer, though I appreciate the question. There are three subsections to section 92(10). Senator Quinn was correct to point out — as I did as well — that the case before the Nova Scotia Court of Appeal has to do with the first clause, subsection (a), which deals with transportation and communications undertakings that link provinces. The Government of Nova Scotia is asking the court to say that this falls within that definition.

You don’t to want hear all the boring details about the jurisprudence and the uncertainty. I defer to Senator Plett on that.

Subsection 92(10)(c) is a separate matter, and regardless of whether it links provinces and regardless of whether it’s an undertaking — which means the assembly of activities around a physical thing — things can be declared for the general advantage of Canada.

The point I’m making here is not that it’s inappropriate in any constitutional way for us. It’s that it would be better in the eyes of the government to wait for the court to rule on that fundamental question, which does not preclude ongoing discussions with the provinces over funding requirements for the project, rather than to take this step, which could have unintended — or perhaps intended, in some cases — knock-on effects that would, in the government’s view, be unnecessary.

This is not, strictly speaking, a case where a narrow question is before the courts, and we are pre-empting that decision. But in a larger sense, the position of the government is that it would be appropriate to wait for that fundamental question to be answered and for the dust to settle. I hope that answers your question.

Thank you.

Do you have a question, Senator Richards?

Will you take a question, please?

I would be pleased to. Perhaps this will be my last question. I know there are other speakers. I meant to be brief. Out of respect, I’ll take your question.

It’s a hypothetical. I know what your answer is going to be, but I’m going to put it out there, sir.

If this was a desperate problem — and it is between Nova Scotia and New Brunswick — and if it was between Highway 40 from Quebec going to Highway 401, would we even be discussing this today?

The answer is yes, we would be. All senators, regardless of the regions or provinces you come from, have a responsibility to ensure fairness to all regions. Of course, we pay special attention to those areas we are most familiar. We represent our provinces or regions.

But I firmly believe — and I hope that it’s true of all of us — that when we arrive here, we realize that we are in a federal institution, and our job is to make sure there is fairness to all regions regardless of where we come from. I sincerely believe that if the same circumstances were presented here, I imagine we would be having this discussion.