Chignecto Isthmus Dykeland System Bill

Moved second reading of Bill S-216, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.

He said: 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.

This bill is a restatement with one change of the version of Bill S-273, which passed the Senate in the last Parliament 55 to 10 but died on the Order Paper in the House of Commons with prorogation.

The only change from the bill adopted at third reading here is that an amendment to include a non-derogation clause related to section 35 under the Constitution Act, 1982, is no longer necessary due to a general non-derogation clause now included in section 8.3 of the Interpretation Act.

The potential of this change was discussed during our deliberations as that bill was under way, and it has been accepted and therefore the consequential amendments would have been made.

My intervention today is simple and straightforward: I ask for your support to send this bill to the next stages of the process.

For the benefit of those senators who are new to the chamber, I will provide a brief overview of what this bill accomplishes by using the declaratory power to transfer jurisdiction of the Chignecto Isthmus Dykeland System to the federal government.

Now, for familiarization purposes because many colleagues weren’t sure where the Chignecto Isthmus was during our last debates on this subject, it is the strip of land predominantly along the Missaguash River forming the boundary between Nova Scotia and New Brunswick. The isthmus itself is a vital trade corridor that represents $35 billion in trade, 15,000 vehicle transits per day and hundreds of thousands of people every year. The trade corridor is a choke point for a single national railway, the Trans-Canada Highway and fibre-optic lines that link transatlantic cables.

All those assets that support Canada’s economic prosperity, interprovincial and international trade and communications are at risk due to flooding were it not for the Chignecto Isthmus Dykeland System. Perhaps of greatest importance, the dykes protect the tens of thousands of Canadians who live and work in and around the isthmus as well as the cultural and traditional aspects important to Aboriginal and Acadian communities.

What Bill S-216 does is use the declaratory power under section 92(10)(c) of the Constitution Act, 1867, to transfer jurisdiction of the dykes to federal jurisdiction. By declaring the dykeland system to be for the general advantage of Canada, it enables the Government of Canada to take a leadership role on working with New Brunswick and Nova Scotia for the rehabilitation of the dykes that date back to the 17th century to reinforce the infrastructure against rising tides and extreme weather events brought on by climate change. In this area, the tides can be up to 50 feet.

With both the provinces of New Brunswick and Nova Scotia agreeing to sign onto the $650 million cost-sharing project with the Government of Canada to repair the dykes, this also resolves the question regarding cost, and this became a dominant theme during our last Parliament’s deliberations.

In the March 22 Telegraph-Journal right before the election, Minister Dominic LeBlanc made an additional political commitment; this being cost sharing of any additional expenses above and beyond the traditional funding under the Disaster Mitigation and Adaptation Fund. He 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.

“As the project advances, a future Liberal government would want to find ways to continue to partner with the provinces and ensure that we could maintain our percentage of the total cost.”

This is a welcome development, and in my mind puts to rest the question of finances.

So why this bill? Why is this important and relevant? It is not only about trade, but also about culture, reconciliation, land management, conservation and stewardship. It is about ensuring a coordinated approach led by the federal government to an area of land that is important to the country.

Colleagues, when the last time the prior version of this bill was discussed in the chamber at third reading, Senator Gold indicated:

 . . . 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.

The court has made its pronouncement and it declined to answer, leaving that question to Parliament exclusively.

I note that the court declined to answer the question to determine the constitutional jurisdiction of the Chignecto Isthmus dykeland system in part based on the following premise. They said:

“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.”

Colleagues, I respect the court’s pronouncement and I certainly respect the advice provided by Senator Gold.

This leads me to the main point. The issue before us is a political one. We are parliamentarians, and whether we like it or not, we are politicians. The court is saying that Parliament alone has the authority to determine whether the Chignecto Isthmus Dykeland System is for the general advantage of Canada thus making it fall under federal jurisdiction. It is a policy decision for us to make in Parliament.

This bill has the unanimous support of both the Nova Scotia and New Brunswick legislatures. Further, it is supported by Fort Folly First Nation which wants the declaratory power to be used so that the federal government takes the lead in respecting the duty to consult with the relevant Mi’kmaq communities and leadership.

It is also supported by the Acadian stakeholders comprised of the Acadian Society of New Brunswick, the Fédération acadienne de la Nouvelle-Écosse and the Société Nationale de l’Acadie in order to provide uniform protection of Acadian cultural and heritage sites, and it is supported by the local communities in both New Brunswick and Nova Scotia.

In the Forty-fourth Parliament, this chamber passed this bill by a wide margin, and it was sent to the House of Commons for our elected colleagues to consider. Prorogation and the subsequent election prevented that from occurring.

Even without the knowledge of what the courts would decide, we made the decision to send former Bill S-273 to the other place. Here we are in a position where I am asking that we reaffirm this previous decision and start the process to provide the elected chamber the opportunity to debate and decide the applicability of using the declaratory power. In light of what the courts have told us, it is more important than ever that the House of Commons be granted the ability to carry out their constitutional prerogative so we may put this issue to rest.

In addition, I would again note the current and necessary policies of the government with respect to expanding our trade relationships with other countries, ensuring that our trade corridors are effective and efficient, are underscoring the importance of the bill. Having jurisdiction under the federal government will ensure that they will have the lead role bringing the two provinces together to protect the isthmus and the infrastructure that exists on the isthmus, thereby providing opportunity to maximize existing trade infrastructure, such as the Port of Halifax, and moving forward in a more efficient and timely manner.

We need to remember $100 million a day crosses the isthmus, the vast majority coming to and from the Port of Halifax, a port well situated to handle much more cargo as those new partnerships are developed with other countries.

This is why, colleagues, I urge us to support and allow it to continue through the process that hopefully will conclude with the bill again being sent to the elected chamber.

Atlantic Canada is speaking with one voice, asking 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 senators. However, the constitutionally entrenched role of the Senate to represent regional interests is even more important. Had this bill not been brought forward, this vital piece of information so necessary for the reasons outlined above would not have made its way to be considered in Ottawa.

The House of Commons will make a determination whether they agree with us or not, but our unique design gives us the ability to introduce Senate public bills and allows us to raise regional issues that simply cannot be heard or understood at first glance by the House of Commons. It provides the elected chamber the opportunity to carry out sober second thought — a role normally reserved for this chamber.

At this time, given the government’s agenda — which is largely responding to the realities of our needing to be less dependent on our trading relationship with the United States — it is incumbent upon Parliament to consider the Chignecto Isthmus to not only be to the general advantage of Canada but also important to diversifying our trade corridors.

Thank you.