Honourable senators, I rise today to speak to Bill S-216, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.

I listened carefully to Senator Quinn’s second reading speech and felt compelled to speak, given the recent decision from the Nova Scotia Court of Appeal on the reference question.

Colleagues, as a reminder, the Chignecto Isthmus is the only land connection linking Nova Scotia to New Brunswick and the rest of mainland Canada. Beginning in the late 1600s, the area was dyked for agricultural purposes. Since then, significant infrastructure of various kinds has been built in the area.

As temperatures and sea levels rise because of climate change, the Chignecto Isthmus is at greater risk of flooding and experiencing other damage. The dykeland system needs to be raised in order to be protected, and the project is expected to cost $650 million.

On March 20 of this year, the Governments of Canada, Nova Scotia, and New Brunswick announced that they had reached an agreement on the Chignecto Isthmus project. The provinces each committed $162.5 million to support the project, while the federal government committed to footing the remaining $325 million.

Despite this agreement, the Government of Nova Scotia submitted a reference case to the Nova Scotia Court of Appeal. The specific question was:

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?

On June 13, 2025, the three-member panel of the Nova Scotia Court of Appeal gave its decision: The court declined to answer the question. In my view, this was a very significant decision. Colleagues, let us take a moment to look at the context in which the court made this decision.

In 2023 Nova Scotia and New Brunswick submitted a “without prejudice” application to the federal Disaster Mitigation and Adaptation Fund, or DMAF, for project funding in order to raise the existing dykeland system on the isthmus.

The court indicated that the “without prejudice” nature of the DMAF application arose from a dispute between Nova Scotia and New Brunswick with Canada over who was ultimately responsible for paying the remediation costs for the isthmus.

The court stated that the Provinces of New Brunswick and Nova Scotia have specific legislation enabling and authorizing the construction, alteration and maintenance of works to protect lands from tidal flooding.

Colleagues, this is not a new issue. For at least the last 150 years, both Nova Scotia and New Brunswick have developed legislation in respect of the building, repair, maintenance and management of dykes and aboiteaux to defend against encroaching waters.

The court further indicated that in the 1930s and early 1940s, farmers and local marsh organizations reported that the original structures at the head of the Bay of Fundy protecting farmland were failing, and economic circumstances made it difficult for them to maintain these dykes and aboiteaux.

In response, Canada, in collaboration with the two provinces, created the Maritime Marshland Rehabilitation Administration. As part of the same process, in 1948 Canada also legislated in respect of building dykes, aboiteaux and breakwaters in the region with the Maritime Marshland Rehabilitation Act, or MMRA. Projects to be undertaken pursuant to the act were conditional upon provincial involvement and provincial responsibility for them and their future maintenance.

By the time it was wound up in 1970, the MMRA had shored up existing structures, replacing or repairing 373 kilometres of dykes and over 400 aboiteaux and constructing 5 tidal dams. By that time, Nova Scotia and New Brunswick had taken over all responsibilities for the dykes and other works undertaken pursuant to the MMRA. Canada repealed the act in full in 1983.

Colleagues, the court clearly indicated that the restoration, repair and maintenance of the dykes in this region have traditionally been the responsibility of the provincial governments.

The court then turned to why they declined to answer the reference question. They stated:

As the case law indicates, a court has a broad discretion not to answer a Reference Question for a wide variety of reasons, including where the Question is vague, inappropriate or where answering it would be problematic.

The court went on to say:

This Reference is unique in that it was not initiated by Canada, whose jurisdiction is directly implicated by the Question. Typically, a reference on division of powers would have draft (or actual) legislation or at least a proposed legislative scheme, or some governmental action which would bring the legislative authority into question. None of that was before us.

The court determined the reference question was vague and that they:

. . . would have to engage in speculation as to the pith and substance of the legislation Nova Scotia says would fall under the exclusive jurisdiction of Canada.

The court indicated “The inability to distinguish between valid schemes of provincial legislation and federal legislation is especially significant in this case.”

It stated:

Appendix A and B set out in detail the legislation that has been enacted by both Nova Scotia and New Brunswick. It is extensive. We are being asked to opine on whether Canada has exclusive . . . jurisdiction with respect to the infrastructure of the Isthmus. We do not have any federal legislation to determine whether it is a valid exercise of the federal jurisdiction under s. 91 of the Constitution Act, 1867. This is fatal to our ability to answer the Question. Any answer would be neither precise nor useful.

The court further stated:

The background leading up to the Question suggests it is an attempt to enlist the Court in a political dispute – that is – who is responsible to pay for the remediation of the Isthmus?

In their Disaster Mitigation Adaptation Fund application, Nova Scotia and New Brunswick took the “without prejudice” position to invoke the “legal determination” of the “constitutional authority” of the provincial and federal governments.

The court indicated it is clear that, “This language is obviously referring to the Question which was referred to us the next day.”

Both New Brunswick and Nova Scotia made the argument in their application that the constitutional responsibility for payment of the cost of the work falls solely with the federal government.

The court stated:

In their funding application, New Brunswick and Nova Scotia say the issue of who will pay is either expressly or by implication going to be determined by the Question, despite counsel for Nova Scotia emphatically stating in argument before us the Question has nothing to do with funding.

The court found that the position taken in the application is consistent with what Nova Scotia Premier Tim Houston said in a letter dated March 19, 2025, to Prime Minister Mark Carney, which read as follows:

I am seeking confirmation that a Government led by you will accept the decision of the Court, should the Court decide that paying for the Isthmus is a Federal responsibility.

In considering this evidence, the court concluded that “. . . any opinion we give would be used as a political tactic – as was argued by Canada at the hearing.”

They stated:

The submissions before us by Nova Scotia were on the basis of legislative authority and not on the issue of who was going to pay for the remediation of the infrastructure. However, it seems clear at the political level our opinion would be relied on as establishing that exact point. We recognize our obligation to provide advice when a reference is made to this Court, however, the Governor in Council should not be using the reference process for a political purpose. The reference process is not a mechanism for achieving political ends.

The court went on to say:

The purpose of the answer being sought is unclear. Counsel for Nova Scotia said it was to “inform” conversations. We infer that to mean conversations with Canada over the funding dispute discussed above. Counsel for Nova Scotia also said it would provide “context” for any debates in Parliament should an Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada . . . be reintroduced in Parliament.

The court stated:

It is difficult to envision how members of Parliament would be guided in their deliberations by an advisory opinion requested by a provincial government from its Court of Appeal.

The court indicated that they:

. . . fail to see how an answer to the Question would be useful in that context.

Finally, Nova Scotia’s argument, in part, relied on what it referred to as “unwritten constitutional principles”. As it described them, the principles create a constitutional obligation on Canada to maintain a link between Nova Scotia and the rest of the country. New Brunswick and Prince Edward Island say similar principles apply to them.

The court indicated:

Canada says this does not fall within the scope of the Question and it did not deal with this alleged obligation in its submissions. Canada also says if this issue was in play, it would have included additional materials in the Record. We agree with Canada that this was not included in the scope of the reference as drafted, and we should not be addressing it. Legislative jurisdiction and constitutional obligations are not the same.

In summary, the court found that:

. . . the vaguely worded Question intended to foist jurisdiction on Canada concerning a subject in relation to which the provinces have been legislating for decades would be too problematic to answer. There are undercurrents suggesting the answer is intended to be used for a political purpose. The alternative explanations for the utility of the reference are thin at best. The ramifications for past and future legislation are unclear. The unasked question about Canada’s obligation to maintain the link between Nova Scotia and the rest of the country should not be addressed under an alternative argument about unwritten constitutional principles.

Honourable senators, I think the Nova Scotia Court of Appeal got it right.

Senator Quinn, in his second-reading speech for Bill S-216, referred to a March 22 New Brunswick Telegraph-Journal article right before the election in which Minister Dominic LeBlanc made an additional political commitment with respect to the cost sharing of any additional expenses above and beyond the funding under the DMAF, or Disaster Mitigation and Adaptation Fund. Senator Quinn indicated Minister LeBlanc said the deal also comes with a pledge from a future Liberal government that it will split the bill of any cost overruns for the project that will take up to 10 years to complete. Senator Quinn indicated this is a welcome development and, in his mind, puts to rest the question of finances.

Colleagues, if the question of financing the remediation of the dyke system on the isthmus is settled, with the federal government covering 50% of the costs and the Provinces of Nova Scotia and New Brunswick each covering 25% of the costs, I fail to see why it is necessary to proceed with Bill S-216.

My colleague indicated in his speech that declaring the dykeland system to be for the general advantage of Canada enables the Government of Canada to take a leadership role on working with New Brunswick and Nova Scotia for the rehabilitation of the dykes. In my view, the ability to take a leadership role is not conditional on the exercising of the declaration.

Exercising the declaratory power is, in my view, both unnecessary and ill-advised. It would essentially send a signal that Parliament disagrees with the decision of the court and believes that the project should be completely funded by the federal government.

I believe, quite frankly, that time is better spent with the respective parties focusing on the actual remediation of the isthmus, which, by the way, I support completely.

For the reasons set out above, I will be voting against Bill S-216.

Thank you, meegwetch.