Honourable senators, as the supporting critic for Bill S-216, I would like to provide a brief response to the assertion of my friend and colleague Senator McNair that the bill is now unnecessary and ill-advised. I don’t believe that to be the case.

The Nova Scotia Court of Appeal decision in no way impacts the Senate from proceeding with Bill S-216. In fact, the reasons the court gave in declining to answer the reference question highlight why it is important for the Senate to send this bill to the House of Commons to ensure that the elected body can have a fulsome discussion and debate on whether the Chignecto Isthmus dykeland system is for the general advantage of Canada.

The Nova Scotia reference question was the Nova Scotia government asking the court to make a determination of whether the specific infrastructure or works that protect interprovincial transportation, trade and communications links across the Chignecto Isthmus dykeland system fall under a federal or provincial head of power. Let me read the reference:

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?

Former government representative and constitutional scholar Senator Marc Gold said:

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.

Senator Gold continues by noting that the use of the declaratory power is a completely separate matter:

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.

For the benefit of the chamber, I will read the entirety of section 92(10)(c):

Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

Senators, the key wording here is “. . . declared by the Parliament of Canada . . . .” — not the government, not the courts. This is a political and policy decision by parliamentarians alone in the Senate and in the House of Commons.

I mean this with the utmost respect to Senator McNair, but his quotations of the Court of Appeal decision add some unintentional confusion. Chiefly, Senator McNair did not mention that the reference question related to a different part of the Constitution of Canada and does not affect, in any way, the bill before us today.

I repeat: The court is speaking about whether to assign jurisdiction to either a provincial or federal head of power, and in the end, the court declined to answer the question. They did so on the basis that it is a policy decision best left for politicians. That is what a political purpose means.

Colleagues, the Supreme Court of Canada respects Parliament’s use of the declaratory power. In the 1925 case Luscar Collieries Ltd. v. McDonald, Justice Mignault of the Supreme Court of Canada said the following about the declaratory power:

Parliament is the sole judge of the advisability of making this declaration as a matter of policy which it alone can decide.

Again, colleagues, I want to underscore it is only Parliament — not the government or the courts — that can decide whether or not to invoke the declaratory power.

This principle that the courts respect the exclusive role of Parliament was again confirmed in 1993 in Ontario Hydro v. Ontario (Labour Relations Board), when the Supreme Court of Canada again refused to constrain Parliament’s ability to use the declaratory power:

. . . the courts, including this Court, have never shown any disposition to so limit its operation, and a wide variety of works — railways, bridges, telephone facilities, grain elevators, feed mills, atomic energy and munition factories — have been held to have been validly declared to be for the general advantage of Canada. I note that neither the Chief Justice nor Iacobucci J. have any doubt about this.

Respectfully, the assertion by my friend from New Brunswick that invoking the declaratory power would “. . . essentially send a signal that Parliament disagrees with the decision of the court . . . .” and would somehow impact upon the reputation of the judiciary has no basis in law. It is not the view of the Supreme Court of Canada, it has no relationship to this bill, and importantly, it does not align with the government’s own views as stated by Senator Gold in relation to the use of the declaratory power:

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 . . . .

Senators, the courts never ruled on the fundamental question of jurisdiction under a separate part of the Constitution. There is no disagreement. This bill proposes that Parliament use a power conferred to it in the Constitution, conferred by the Fathers of Confederation. The courts respect that the use of this power is for Parliament alone to decide. There is no longer any need to wait. It would have been helpful to know if the court found jurisdiction under another part of the Constitution, but it isn’t imperative that they do so.

I end by quoting, yet again, Senator Gold: “. . . the declaratory power is a legitimate exercise of the Constitution.”

When I adjourned the debate last week on this bill, I said that we should respect the court’s decision. I stand by that statement, but in no way will proceeding with this bill be in direct conflict with a court ruling.

We have an obligation as senators to represent and protect the interests of our provinces at the federal level. So this is not an issue that applies narrowly just to Nova Scotia and New Brunswick. The approach by the federal government to this particular issue should be of concern to all honourable senators.

Colleagues, we should follow the tried-and-true due process in regard to this matter. Let us vote to examine this bill at second reading so we can perform and respect our constitutional role of regional representation.

Thank you.

Of course.

It is because the issue remains in regard to the issue of the declaratory power. Yes, it’s fine that they’ve come to this agreement to get some funding put in place, but this issue is for Parliament to decide. This is only one issue; there could be other issues down the road. So we have to keep ourselves open to the opportunity and responsibility to use the declaratory power without any reference to the courts.

I believe it’s our responsibility as senators to ensure that respect for the declaratory power is maintained.

Again, this does not affect the funding. If we stick to our guns on this — and I think we should in this chamber — there is nothing to prevent the governments from going ahead and doing this work. These are two completely separate matters. The federal and provincial governments are free to start this work right now, without any reference to the court or Parliament.

As a Nova Scotian — and, I would think, as your being somebody from New Brunswick — if we believe that the federal government should be providing 100% of the funding. And I want us to go back after the funding; that doesn’t bother me in the least. We’ve seen this declaratory power used. We saw it used in providing the funding for the Champlain Bridge in Montreal. That was a municipal bridge, and the previous Conservative government, when it was asked to fund this bridge, said they would put the money up. We put up almost $5 billion under the assumption that the bridge would be tolled and that the money would be paid back to the federal treasury. Then a new government came in, threw out that arrangement and said, “We’re going to pay for the bridge ourselves.”

If the federal government can pay for a municipal bridge in Montreal, it can pay for this particular need at the New Brunswick-Nova Scotia border.

I think my position on this is fairly clear. I believe the federal government should agree to pay 100% of it. It has to be done. There shouldn’t be any delay. We want it to get done, and the money will be put in place, so let’s get it done.

However, it doesn’t change the principle, as far as I’m concerned. If we can get to the point where the federal government will agree to pay it all, I think both New Brunswick and Nova Scotia would be better off.