Chignecto Isthmus Dykeland System Bill
Third Reading--Debate
June 11, 2024
Honourable senators, I’m speaking at third reading of Bill S-273, which was introduced by the Honourable Senator Quinn. Although I seriously doubted the bill’s value initially, I chose to support this initiative at committee.
The bill would declare the Chignecto Isthmus Dykeland System to be for the general advantage of Canada, thereby invoking the federal government’s declaratory power as set out in the Constitution Act, 1867.
We invited not one, not two, but three leading experts in constitutional law to the Transport Committee so we could draw on the broadest possible expertise. Professors O’Byrne, Leach and MacFarlane appeared before the committee, and all of them said it was entirely possible and in accordance with the rules to invoke the declaratory power to bring the Chignecto Isthmus system under federal law. Only one of the witnesses, Andrew Leach, considered such a designation unnecessary, as he felt that the isthmus is already under federal jurisdiction, given that it spans two provinces, New Brunswick and Nova Scotia.
Everyone agreed on three other points. First, declaring works to be for the general advantage of Canada achieves only one thing: It subjects them to federal legislation. Second, under no circumstances does the assertion of this declaratory power require the federal government to spend any money at all on the work in question. Third, the fact that an appeal has been brought before the Nova Scotia Court of Appeal to place the Chignecto Isthmus under federal jurisdiction in no way prevents parliamentarians from passing legislation. In short, there’s no substantive constitutional or legal obstacle to this bill. The debate essentially revolves around politics, and each senator is therefore at liberty to take a position.
As I see it, this bill is purely political. By invoking the declaratory power in Bill S-273, Senator Quinn is trying to put more pressure on the federal government to be more generous in funding the isthmus dykeland rehabilitation and pay more than 50% of the cost. The fact that this bill has received the blessing of the premiers of New Brunswick and Nova Scotia makes it all the more political. I confess that I feel a little uncomfortable about getting so directly involved in a dispute between the federal government and the provinces.
Once again, Professor Macfarlane considers it outside the scope of our role as legislators. In this regard, he said, and I quote:
There are no distinct limitations on the various purposes a piece of legislation may have. Parliament is free to use legislation to hold government to account, to impose direct obligations on it, and I see no reason why legislation could not be used to impose an element of symbolic obligations or political obligations through legal instruments.
This declaratory power was used nearly 500 times since Confederation, as Senator Gold mentioned. Professor Nicole O’Byrne, from the University of New Brunswick, also indicated that, when Parliament invokes this power, it’s an entirely political decision that’s not reviewable by the courts. However, Professor O’Byrne also reminded us of the origins of the Confederation pact and its context. The construction of a railway connecting Halifax to Quebec was a condition for Confederation for the provinces of Nova Scotia and New Brunswick. This rail line, vital to the Maritimes’ supply chain, crosses the Chignecto Isthmus which is being threatened by climate change. Professor O’Byrne added that, historically, the federal government has paid for most of the infrastructure work when the provinces were unable to do so.
Furthermore, the bill wasn’t considered in a vacuum. In the middle of the committee’s study, Prime Minister Trudeau announced to great fanfare that the federal government was going to repatriate the Quebec Bridge and pay the full cost of its rehabilitation, to the tune of $40 million per year for the next 25 years. The bridge, he said, is critical infrastructure for the St. Lawrence River corridor. There’s no doubt about that.
The next day, the Prime Minister went to Bathurst and met with local journalists who asked him why the federal government was funding 100% of the Quebec Bridge rehabilitation, but no more than 50% of the Chignecto Isthmus renovation work. The Prime Minister’s answer surprised me. He said, and I quote:
It is a vital link, but it is also a provincial highway. . . . We will be there as a partner, but perhaps it would be better if the governments of Nova Scotia and New Brunswick took the fight against climate change more seriously. . . . Unfortunately, they are doing what too many Conservative politicians are doing, and that is looking for easy arguments so as not to have to make the necessary investments that their citizens need, investments that are their responsibility to make.
My jaw dropped when I heard that. Are we to understand that the federal government’s decision to pay for the renovation of critical infrastructure depends on the provincial government’s political stripe?
Are we back to the Duplessis days when we had to vote for the right party to get funding for our roads?
To me, it is clear that the Chignecto Isthmus straddles two provinces, that it has a rail line, that its history is closely connected to the Confederation pact and that it is as much in the general advantage of Canada than the old Quebec Bridge, if not more so.
As a Quebec senator who believes in fairness among the provinces, I wasn’t happy with that differential treatment. I will therefore be voting in favour of Bill S-273 for all of the reasons that I mentioned.
Thank you.
Honourable senators, I’d like to begin by saying that I agree with Senator Quinn’s comments. In addition, according to an article I read today about the Thwaites Glacier in Antarctica, although it was expected to melt in the next 100 or 150 years, experts believe it will melt faster than initially predicted. The sea flows 3.7 kilometres beneath the glacier, contributing to the 3.7-metre annual rise in sea level. The world is already losing 50 billion tonnes of ice annually, equivalent to a 4% rise in sea levels. The study was published this week.
Honourable senators, I’d like to take this opportunity to share my thoughts on the very important Bill S-273, sponsored by our colleague, Senator Quinn.
I consider it essential to rise today to discuss the vital importance of preserving the Chignecto Isthmus dykeland, and to recognize the central role this isthmus plays in Canada’s economy.
The Chignecto Isthmus is the name of the stretch of land connecting New Brunswick and Nova Scotia. It is slightly above sea level. It includes a network of dykes and aboiteaux, installed in the late 1600s by the Acadians, perhaps some of my ancestors. It currently protects the isthmus’ communities, infrastructure, private lands and natural resources.
The Chignecto dykes, with their rich history and crucial function, are much more than mere structures of concrete and earth. They are an infrastructure that protects an essential link between Nova Scotia and the rest of the North American continent, a link that should never be underestimated or neglected.
First of all, understanding the economic importance of the Chignecto Isthmus to Canada is key. This land and sea corridor is a major trade and freight corridor. The Trans-Canada Highway and CN rail line cross the Chignecto Isthmus, providing road and rail links across which some $35 billion worth of goods, commodities and services flow every year.
These goods and commodities travel in both directions. They go from Newfoundland and Nova Scotia to the West, but the goods and commodities found in New Brunswick, Quebec and Ontario come from as far away as British Columbia. In addition, this strip of land is home to wind turbines and major power and telecommunications lines.
Every day, thousands of trucks haul goods essential to Canadians across the Chignecto Isthmus. Food, medical supplies, manufactured products and countless other goods are shipped through this strategic passage to Canadian and even U.S. markets, thereby contributing to the continuous supply of goods to cities and regions across the country. These goods play a vital role in Canada’s economy. They support a wide range of industries from coast to coast to coast and create jobs in multiple sectors.
Considering its strategic position and importance to Canada, we believe that the work required to protect this land bridge from the climate changes we are witnessing is vital. That’s where the Chignecto dykes come into play. These ingenious structures protect the land from floods and storms and, in doing so, ensure safe shipping by land and sea. Without them, roads could be flooded, railways damaged and ports rendered inaccessible, bringing the vital flow of goods across the country to a screeching halt.
Preserving the Chignecto Isthmus dykes is also critical to the environment. Not only do these dykes protect farmland and infrastructure, they also preserve fragile coastal ecosystems. By stabilizing the land and preventing floods, they protect natural habitats and the species that depend on them. In doing so, they help preserve the region’s biodiversity.
Colleagues, it is our duty to preserve and protect the Chignecto Isthmus dykes for future generations. Their importance cannot be overstated. They are the very foundation of our economy and our security, ensuring the continuous flow of essential goods across the country. By investing in their maintenance and development, we are investing in the future of Canada as a whole.
In my view, the Canadian government has a constitutional responsibility to maintain this link, and the federal government’s criteria for funding major transportation links should be the same in all provinces.
Therefore, it goes without saying that the Chignecto Isthmus and the works required to preserve it should be declared to be for the general advantage of Canada. This would enable the provinces to negotiate with a single stakeholder, the federal government. As things stand, if one province completes its part of the necessary repairs but the other does nothing, a storm could seriously damage everything on both sides of the Nova Scotia‑New Brunswick border.
In closing, I would urge you all to recognize the vital importance of the Chignecto Isthmus Dykeland System and to support the efforts to preserve it. The Chignecto Isthmus is a strategic land link that is threatened by rising water levels and climate change. By supporting this bill, we can ensure the sustainability of this important economic corridor and guarantee the prosperity of our nation in the years ahead.
Thank you very much.
Colleagues, I rise today to speak briefly at 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, which was introduced in this chamber by my New Brunswick colleague, Senator Quinn, whom I thank. Much has been said, so I won’t talk about economic development, the movement of goods and services or the road and rail link, even though I recognize how important these elements are to the region. On these matters, I endorse everything my Acadian colleague, Senator Aucoin, said, and I thank him for his remarks.
I would like to point out that the land on which I am speaking is part of the unceded territory of the Anishinaabe Algonquin people.
In light of the study duly conducted by the Standing Senate Committee on Transport and Communications, which included new facts related to this bill, allow me to clarify why I intend to support it. Let’s not forget that this legislation would make the federal government responsible for the restoration of the Chignecto Isthmus dykes through a declaration by Parliament that these works are for the general advantage of Canada, in accordance with section 92(10)(c) of the Constitution Act, 1867.
I will begin by saying that I am well aware of the comments that my colleague, Senator Clement, made in committee about how this bill could reflect a serious breakdown in negotiations among the different levels of government. Obviously, I think that a collaborative approach is important for any issue that affects Canada as a whole.
I also read with interest the comments of Mr. Andrew Leach, a Professor in the Faculty of Arts and Faculty of Law at the University of Alberta, who appeared before the Transport Committee and according to whom this bill does not appear to impose any positive obligation for the federal government to maintain, fund or act in any other way to support the system.
One might also question the intrinsic usefulness of such a bill, especially since the dyke system could already fall under federal jurisdiction in accordance with paragraph 92(10)(a) of the Constitution Act, 1867.
Nevertheless, honourable senators, I recognize that a large number of key stakeholders in my region are calling for this legislative proposal. As it has often been said, we were all appointed to the upper chamber to represent our province or territory. The effective representation of regional interests is at the heart of our senatorial mandate and constitutes one of the pillars of this democratic institution.
It goes without saying that, if the legislative assembly of my province, which basically represents the general will of the people of New Brunswick, takes a stand on an issue that directly relates to our parliamentary work, then I think that I need to give that a certain amount of attention and deference.
In that regard, on May 17, a motion was unanimously adopted by the Legislative Assembly of New Brunswick to urge Parliament to pass this bill. The motion in question referred to the fact that the Chignecto Isthmus is a rail trade corridor of national importance and that it is particularly vulnerable to the effects of rising sea levels and increasingly intense severe weather events. All of the political parties in my province, without exception, support this bill. The Nova Scotia Legislature also adopted a similar resolution. In my opinion, this constitutes significant legislative action.
Our senatorial mandate also requires us to represent the interests of minorities and of groups generally under-represented in the other place, including Indigenous peoples and official language minority communities. I think you will agree with me that it is imperative for us to take their interests and needs into account in our public policy development processes.
In May, the Société de l’Acadie du Nouveau-Brunswick, or SANB, in collaboration with the Fédération acadienne de la Nouvelle-Écosse, or FANE, and the Société Nationale de l’Acadie, or SNA, which speaks for the Acadian people nationally and internationally, submitted a brief to the Senate Committee on Transport and Communications. This document offers unwavering support for Bill S-273.
One relevant passage of this brief reads as follows:
The Chignecto Isthmus Dykeland System Act is a major step forward for the preservation, and even more so for the protection, of this historically rich region. This region is also of great public interest, particularly given its nationally and strategically important infrastructure. Section 4 of Bill S-273 is clear on the subject: “The Chignecto Isthmus Dykeland System and related works are declared to be works for the general advantage of Canada.”
As explicitly indicated by Chief Rebecca Knockwood from the Fort Folly First Nation before the Transport Committee, the Mi’kmaq chiefs of my province also support this legislation. I equally note that the amendments adopted in committee have considered the opinions notably expressed by Jessica Ginsburg, a lawyer on behalf of Kwilmu’kw Maw-Klusuaqn, KMK, which supports the Assembly of Nova Scotia Mi’kmaq Chiefs.
Through testimony and briefs, the Transport Committee also heard from other stakeholders favourable to this legislation, notably the Union of the Municipalities of New Brunswick, which represents 56 municipalities and almost 80% of the population, including communities along the Chignecto Isthmus.
Colleagues, while recognizing the importance of this region for the movement of goods and services and for strengthening the economic development of our region, and given the unique historical and cultural place that the Chignecto Isthmus holds in the collective imagination of the Mi’kmaq and Acadian peoples of this region, Bill S-273 reaffirms that the system of dykes and aboiteaux in the Chignecto Isthmus, which is still of immeasurable economic and heritage importance for the inhabitants of this region, particularly the Acadians and Mi’kmaq, is for the general advantage of Canada.
I fully support this principle, especially since this territory is central to the very identity of the Acadian and Mi’kmaq peoples and the Atlantic provinces. I therefore invite you to vote in favour of this bill. To show you just how important this territory is for the Acadian people in particular, I would also invite you to broaden your horizons to new possibilities for developing this unique territory. For ecological, economic, historical and heritage reasons, the three Acadian organizations I mentioned earlier are proposing the particularly interesting idea of creating a new national park on the Chignecto Isthmus.
In their brief to the Transport Committee, they say this innovative project will have three main benefits, and I quote:
. . . it would allow the Government of Canada to effectively protect the isthmus against the ravages of climate change through the coordinated participation of multiple departments and agencies, including Public Works and Infrastructure Canada and Parks Canada. It would also allow two heritage institutions—Fort Beauséjour and Fort Lawrence—to be combined on the same site. Lastly, it would preserve and promote the presence and activities of the Mi’kmaq and the Acadians of Beaubassin, including the network of dykes and aboiteaux erected over three centuries ago that continue to protect the isthmus . . . .
Also, as part of its study on the impacts of climate change on critical infrastructure in the transportation and communications sectors, I fervently hope that the Standing Senate Committee on Transport and Communications will give due consideration to this proposal in preparing its future report.
Honourable colleagues, I’ll conclude with an anecdote from my childhood. My father often took us to Nova Scotia via the famous Chignecto Isthmus. I’ll spare you the poetic rant and just say that my father was constantly reminding us how instrumental that particular place was in building our country and uniting the Atlantic provinces. Not to be biased, but he always highlighted the important role that Acadians played in the construction of these dykes, which helped make Canada what it is today, particularly in that region.
I must admit that I’m getting a little emotional over this, but at the same time, for all of the reasons that I gave here today, I would invite you all to vote in favour of this bill. Thank you.
Honourable senators, no one should doubt that the Chignecto Isthmus is one of the most vital and most threatened pinch points in Canada. It is one of our nation’s most important and essential transportation corridors, connecting Nova Scotia to the rest of Canada and allowing billions of dollars’ worth of goods landed at the Port of Halifax to flow through Eastern Canada.
How important? How vulnerable? Let me share with you what we heard from one of the witnesses who appeared before the Transport and Communications Committee to speak to this issue, the Mayor of Amherst, Nova Scotia, David Kogon:
A flooded Chignecto Isthmus would disrupt the rail line, the Trans-Canada Highway, the power distribution lines, a natural gas pipeline and the windmills in the area.
He continued:
A significant portion of the town of Amherst, estimated at approximately 25% to 33%, would be flooded if the isthmus of Chignecto were to flood. Specific protection of the dikeland system safeguards the transportation corridor, Amherst and other nearby communities and vast areas of fertile farmland. The areas of land protected by the dikes are below sea level. If this area were to flood, the water would not recede; it would be permanent, with major consequences.
And he assured us this was not a fanciful projection:
There is an increased frequency of major storm events in recent years. Urgency is being placed on this issue due to concern that one of the next severe weather events will coincide with the high tide, which would breach the dikes and flood the isthmus permanently.
When I asked the mayor whether the isthmus was going to be overwhelmed by rising sea levels, he explained to me that the most real and present threat was more the increase in violent storms brought by climate change, which could overwhelm the dykes even at this sea level:
The vulnerability due to climate change is the issue. It’s not that the dikes are destroyed, but they’ll be overcome by one of these storms. So the rail line being in good condition, the road being in good condition and the power lines being in good condition will all be for naught when the flood occurs.
We are vulnerable. We could have a high tide, full moon and hurricane at any time. That’s why we feel there is a major urgency to getting mitigation efforts started.
His colleague and neighbour Andrew Black, the Mayor of Tantramar, New Brunswick, spoke equally passionately about the threat. He testified:
The people of Tantramar count themselves lucky for living where we live, and the chocolatey mud flats, the stark flat beauty of the marsh and the teaming biodiversity of those areas have been engrained and interwoven into our history, art, music, culture, educational opportunities, tourism and economy.
But, he said:
. . . there is constant dread that it will all be washed away in one perfect storm. The Chignecto Isthmus . . . is a narrow piece of land that connects New Brunswick to Nova Scotia, stretching from the Bay of Fundy on one side to the Northumberland Strait on the other. Most of that land is well under sea level and it would take little effort to inundate it with floodwater. . . .
. . . we are all aware now after the floods of the past and a quickly changing climate that it is not a matter of “if” but a matter of “when” the isthmus will be under water.
So I do not for one moment question the urgency of this issue nor the vital need for timely action. I want to thank Senator Quinn for putting this issue on the national agenda and for all his work in championing the people who call the isthmus home or who rely upon it for their futures. And I don’t blame him for feeling his region’s concerns are not being heard. Believe me, as an Albertan, a representative of a province of 5 million people which has only six Senate seats, I empathize with that feeling.
But I rise today, nonetheless, to oppose this particular bill — not because I want to let the federal government off the hook but because this bill is not the way to force anyone in Ottawa to do anything at all, and because I do not think we should use the extraordinary declaratory power of the Constitution in a careless or fruitless way.
As former chief justice Sir Lyman Poore Duff wrote in 1929, the declaratory power is an authority of “a most unusual nature” which gives the federal government sweeping power to assume jurisdiction over what would otherwise fall within the exclusive control of a single province.
Section 92 of the Constitution lays out the division of powers — which things are in provincial jurisdiction, and which things are federal. Section 92(10)(c) provides that works and undertakings that:
. . . 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.
Now, is the future of the Chignecto Isthmus dyke works a matter of national urgency? Absolutely. Would repairing and storm-proofing it be for the general advantage of Canada or for the advantage of two or more provinces? Who could deny it? But let me reread the words of the clause: “. . . although wholly situate within the Province . . . .” And the Chignecto dyke works are, well, not wholly situate within one province. They link New Brunswick and Nova Scotia.
Now, there has been an attempt in the bill to imply that this is not true. The bill explicitly defines the Chignecto Isthmus Dykeland System as two distinct things:
(a) a dyke system intended for water management wholly situated in the Nova Scotia portion of the Chignecto Isthmus trade corridor; and
(b) a dyke system intended for water management wholly situated in the New Brunswick portion of the Chignecto Isthmus trade corridor.
Much though I respect and honour Senator Quinn’s commitment to the people of the isthmus, that is not a very convincing argument.
Let me also quote from the testimony of Dr. Andrew Leach from the University of Alberta law school, who is both an authority on the history of the declaratory power and an expert in environmental economics:
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. The system of dykes, aboiteaux, and culverts lies on both sides of the border but also, in the case of the Missaguash River water control structure, spans the border. . . . The Dyke System is “functionally integrated.” There is no sense that the systems in New Brunswick and Nova Scotia could operate effectively or be updated independently of the other. . . .
In his written brief submitted to the committee, Dr. Leach cited a 1905 decision by the British Law Lord Edward Macnaghten, who was ruling in a case involving the use of declaratory power in regard to the works of Bell Canada. Macnaghten wrote:
. . . if they had been “wholly situate within the province,” the effect would have been to give exclusive jurisdiction over them to the Parliament of Canada; but, inasmuch as the works and undertakings . . . were not confined within the limits of the province, this part of the declaration seems to be unmeaning.
And that, I fear, is the problem we face here. It is legally meaningless to require the Government of Canada to declare the dykeland system to be to the general advantage of Canada. The works are clearly not situated wholly within one province. Indeed, one could argue, as Dr. Leach did, and as provincial premiers have, that the dykeland system could already fall under federal jurisdiction.
Indeed, Parliament already decided it had jurisdiction when it passed the 1948 Maritime Marshland Rehabilitation Act related specifically to the isthmus. Both New Brunswick and Nova Scotia agreed and cooperated with the federal government in the administration of that act. One could argue that nothing has happened since that would suggest Parliament was wrong then, so it may well have jurisdiction now, despite the decision made in 1970 to turn jurisdiction back to the provinces at their own request. As Senator Gold said, we may have to let the Nova Scotia Court of Appeal figure that out.
But in the meantime, let me be crystal clear. Passing this bill would do absolutely nothing to require the federal government to fix the isthmus or to commit any more federal funds to the project. It might make a symbolic political statement of some sort, but I suggest that it is an inappropriate use to invoke the extraordinary power of section 92(10)(c) as a political ploy, as a mere tactic to shame the federal government into action.
As a matter of parliamentary propriety, we should not pass bills that functionally have no force or effect to do what we want them to do.
I believe the federal government should absolutely step up to fund the lion’s share of this project. The isthmus is too vulnerable and too important to all of Canada to be left to the exclusive financial responsibility of two small provinces. And it is far too important to be snarled up in endless legal disputes. But this bill is not the right tool to fix the problem.
It is a long-standing legal tradition that “Parliament does not speak in vain,” that we do not pass legislation that is superfluous or has no legal meaning or import. And this bill, alas, speaks in vain, at least when it comes to expediting or funding the isthmus project.
At the same time, it could have unintended and negative consequences, because if it came into force, it could create an unintentional legislative vacuum. As Dr. Leach said in his testimony:
As soon as this law were to be proclaimed, any provincial statutes in relation to this dykeland system are invalid from that moment forward. You may end up with a legislative vacuum. I don’t know that there are federal laws planned in this area. I do think that’s one thing to consider, that provincial legislation in relation to the dykeland system would be invalid if this bill were upheld.
His perspective was seconded by another committee witness, lawyer Jessica Ginsburg, a legal advisor to the Mi’kmaq. I asked her:
. . . Do you believe that if this bill were to pass that provincial regulations, environmental regulations and regulations around archaeological excavation would be effectively eliminated?
Her response was:
Of course, that’s the concern, or that if they were eliminated that there wouldn’t be substitute federal decision points in their place. It’s not to say that the decisions have to be made provincially, but the federal government wouldn’t usually regulate in the areas covered off by the provinces currently. That’s the concern — that there would be a gap created.
Today, for the sake of argument, let us suppose that if S-273 were to pass, the federal government would move with extraordinary swiftness to fill the legislative vacuum. Let us, for the sake of argument, accept the idea that passing this bill just to embarrass the government into badly needed action on this file makes good political sense. I want us to consider the consequences of the precedent that we would be setting.
Now I also speak as an Albertan. Imagine that we create a model where the federal government could exert exclusive jurisdiction over any work or undertaking regardless of what the plain text of the Constitution actually says? I think we’d open a Pandora’s box where some future government could potentially seize this example to extend jurisdiction where it might not be so welcome.
In the midst of our own clause-by-clause debate at committee, I argued that Bill S-273 was the wrong tool and that you should not use a rake to hammer a nail. Senator Cardozo had a witty rejoinder. He pointed out, “In an emergency, you could indeed use a rake to hammer a nail.”
Well, you could. You could also hurt yourself quite badly in the process.
Let us try to stick with hammers to drive in our nails lest we run the risk of getting a prong in the eye. Thank you. Hiy hiy.
Would Senator Simons take a question?
Absolutely.
Thank you, senator, and thank you for all the work you have done on this bill and all the excellent questions that you asked during our deliberations.
I would be remiss if I didn’t outline for colleagues who weren’t at the committee that there were three constitutional experts there that evening. I don’t dispute one word that you have said with respect to Dr. Leach, but I would add that the other two witnesses were of quite a different view. Their view was that this was a valid tool to use.
The other thing that I want to raise and ask for your feedback on is I recognize you said that Professor Leach talked about a continuous, single system. Yet, the provinces of New Brunswick and Nova Scotia applied together in their application because of their singular responsibility for each section within their province.
Finally, could you comment on the declaratory power that was used in the Gordie Howe International Bridge example? That bridge is not within the Province of Ontario. It goes to Michigan and is being paid for 100% by the federal government.
I will take those in reverse order and hope that I remember them.
Regarding the Gordie Howe International Bridge, in terms of what is in Canada, as I understand it, the bridge is entirely in one province. The fact that the federal government paid for it, as you well know, Senator Quinn, doesn’t create a legal precedent that would require them to pay for the Chignecto Isthmus. I agree with you that the federal government needs to offer more than it already offered, but the declaratory power in no way compels them to do that. Indeed, if it did compel them to do that, we would need a Royal Recommendation to pass this bill through this chamber because we don’t have the power to make the federal government spend millions and millions of dollars. The House can write their own legislation, but we don’t have that power.
To go back to your question before that, which was about whether it’s all in one province, it’s clearly not all in one province. It’s true that the two different provinces have responsibility for fixing their halves of it, but the system, the undertaking is thoroughly integrated. If one province fixed one half or decided that it was going to raise its dykes and the other province didn’t, the system would fail. You need only look at a map to see how absolutely inextricably linked all of these systems are. To pretend that this is two systems each in their own province is creative, shall we say.
Honourable senators, I rise today to speak to Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.
I want to recognize Senator Quinn for bringing forward this bill, which seeks to preserve an important trade and travel route by using tools available to the federal government.
We all heard Senator Quinn discuss why he feels strongly about the need to use the declaratory powers to bring this project under federal jurisdiction. I agree with him. It is not to absolve the provinces completely of their fiduciary responsibilities regarding the isthmus but to take on the brunt of a causeway project that is truly in the nation’s interest.
I was amazed to learn during the Transport Committee study about regional examples of how climate change is endangering critical infrastructure and that an estimated $100 million cross the isthmus daily.
The implications of what might happen to Canada and its economy should the isthmus become unpassable are staggering. It should be noted that the declaratory power and the notwithstanding clause are exceptional powers that should be used sparingly. However, I would argue that in this instance, it is warranted. This would not, in my opinion, create a precedent that would open the doors to other regions trying to take advantage of this same power for their areas that are susceptible to flooding.
As a lawyer, I would say that the use of this power makes sense in this instance due to the confluence of specific factors such as the economic importance of the region and its importance to specific people such as the Acadian people and the Mi’kmaq who have lived on that land since time immemorial.
As Senator Cormier said — and I’m paraphrasing in English — given the unique historical and cultural place that the Chignecto Isthmus occupies in the collective hearts and minds of the Mi’kmaq and Acadian peoples of this region, Bill S-273 reaffirms the idea that the Chignecto Isthmus dyke and aboiteau system, whose economic and cultural importance remains immeasurable for the inhabitants of this region, is in the general interest of Canada.
While the committee’s meetings do occur at the same time as one of the other committees I sit on, I made time to attend committee hearings that are current to my region of Nova Scotia. I was able to attend one of the meetings on this bill where a young lawyer named Jessica Ginsburg was testifying on behalf of Kwilmu’kw Maw-Klusuaqn, or KMK, the organization working on rights implementation and undertaking negotiations on behalf of the Assembly of Nova Scotia Mi’kmaw Chiefs.
Ms. Ginsburg appeared alongside Chief Rebecca Knockwood, who represents Fort Folly First Nation — also known as Amlamgog — on the New Brunswick side of the isthmus; and Derek Simon of Mi’gmawe’l Tplu’taqnn Incorporated, or MTI, which is the New Brunswick equivalent of KMKNO.
Chief Knockwood spoke about the isthmus being a “ . . . significant cultural area for the Mi’kmaq . . . .” and how “ . . . Chignecto . . .” is derived from the Mi’kmaq word “Siknikt,” meaning “the drainage place.”
Chief Knockwood went on to say:
Studies show that it was one of the most densely populated areas of Mi’kma’ki and was a centre for travel and trade. Mi’kmaw, including members of my community, continue to harvest in the area.
She continued, saying:
Today, the isthmus is known to host 44 federal and provincial species at risk as well as over 250 species of conservation concern in Nova Scotia and over 170 in New Brunswick. Many of these species are of particular significance to the Mi’kmaq.
All three witnesses representing the Mi’kmaq in this study were clear that deep and meaningful consultation is important moving forward.
It is the duty and honour of the federal Crown to take this on and ensure there is fulsome consultation.
I want to thank Senator Quinn and Mr. Lyle Skinner, his director of parliamentary affairs, for working so hard to incorporate meaningful amendments that address the concerns raised by the Mi’kmaq.
One amendment that KMKNO asked for, which was perhaps missed, may not have much impact in the operative part of the bill, but it is important nonetheless. It is always important to acknowledge the history of a place in order to recognize its importance to current and future generations.
In that same vein, I agree with KMKNO’s suggestion to amend the preamble to state the historical and cultural importance of the region to Mi’kmaq and, as we heard today from Senator Cormier, Acadian people.
The inclusion of such a statement would ensure that it is understood by anyone reading the bill that there is more to the Chignecto Isthmus than trade. There is hunting, a history and a life that we must protect and preserve.
