Court declines to answer Nova Scotia's question on Chignecto Isthmus
Panel of judges says the question had ‘political undertones’
Nova Scotia's highest court says it will not weigh in on who has legislative authority over the Chignecto Isthmus, calling the province's question "too problematic to answer."
Nearly two years ago, the Nova Scotia government asked the Nova Scotia Court of Appeal a question about the narrow and low-lying strip of land that connects Nova Scotia to New Brunswick.
It asked: "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?"
Over several days earlier this year, a panel of three judges heard arguments from lawyers for the governments of Nova Scotia and Canada about the province's question. Prince Edward Island and New Brunswick also made submissions as interveners in the case and supported Nova Scotia's position.
Enlisting the court in a political dispute
In a decision released Friday, the court declined to answer Nova Scotia's question, saying it was "vague," "imprecise" and had "political undertones."
"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?" wrote Chief Justice Michael Wood, Justice David Farrar and Justice Anne Derrick.
Premier Tim Houston says all constitutional questions have political undertones and the court should have answered this one. (Robert Short/CBC)
The judges referred to the protracted dispute between the federal government and the governments of Nova Scotia and New Brunswick over funding for bolstering the dikes that protect the isthmus.
Upgrades to the aging dike system are estimated to cost $650 million over 10 years. Experts say the work is necessary to protect the area against rising sea levels and worsening storms caused by climate change.
Inundation of the isthmus could cut off overland trade and damage communication lines between Nova Scotia and the rest of Canada.
Ottawa has offered to pay half, with Nova Scotia and New Brunswick covering a quarter each. The provinces both agreed to this, but Premier Tim Houston has continued to push for full federal coverage.
Houston has said that the court case would help decide who should pay, in spite of lawyers for his government saying they were not looking to the court to determine financial responsibility.
"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 judges wrote.
Chief
Justice Michael Wood, Justice David Farrar and Justice Anne Derrick of
the Nova Scotia Court of Appeal co-wrote the decision. (Robert Short/CBC)
All constitutional questions are political, Houston says
Houston said he was disappointed the court chose not to answer.
"When the Court is asked a question about interprovincial affairs, it should answer it," the premier said in a statement sent to CBC News by his press secretary.
"Every single constitutional question of the court that crosses federal and provincial jurisdictions has potential political overtones. This is not a legitimate reason to avoid answering an important, reasonable question."
He pointed to the carbon tax as an example of a political topic that the Supreme Court of Canada ruled on.
The judges pointed to another example from the Supreme Court of Canada in which the court "warned about courts being drawn into a political controversy." In discussion around a reference question about Quebec secession, the court argued there must be a "sufficient legal component to warrant the intervention of the judicial branch."
The Chignecto Isthmus connects Nova Scotia with the rest of Canada. (CBC News)
The court said the question was vague insofar as it wasn't tied to any new legislation and would require speculation about future legislation.
The decision noted that both Nova Scotia and New Brunswick have a history of passing legislation about the isthmus.
"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."
The judges said the question was imprecise in describing the infrastructure that needs protecting.
"There is no description of the size, scope and location of the dykes at issue, which would create uncertainty about the limits of any decision we might make regarding jurisdiction over them."
In response to the court's decision, Nova Scotia MP and federal Justice Minister Sean Fraser said Ottawa "remains committed" to protecting the isthmus.
"We stand ready to work together with Nova Scotia and New Brunswick, and we will pay half of the project's cost, $325 million," Fraser said in an emailed statement.
"Protecting this strip of land is vital to our region's connectivity, economy and our prosperity."
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Chignecto Isthmus case waste of Nova Scotia Court of Appeal's time, federal lawyer says
Lawyer Lori Ward told court the issue before it is actually a 'pressure tactic'
Nova Scotia and New Brunswick's attempt to persuade a panel of judges to conclude Ottawa has responsibility for the infrastructure on the Chignecto Isthmus is a "waste and abuse" of the court's time, a federal lawyer argued Wednesday.
Lawyer Lori Ward told a three-member Nova Scotia Court of Appeal panel that "the ultimate issue, despite all protestations to the contrary, is funding."
"It's clear that Nova Scotia writ large designed this reference as a political pressure tactic to be used as ammunition in the political arena and as such we would argue that it's not just a waste of this court's time, it is an abuse of this court's time," said Ward.
The isthmus has had large dikes since 1671, when Acadian settlers arrived, and there are currently about 35 kilometres of dikes that help protect roads, farms and communities.
Nova Scotia has long maintained that the federal government should pay the entire cost of upgrading protections for the isthmus — currently estimated at $650 million — but Ottawa has agreed to pay only half of the project.
'Canada has agreed to pay 50 per cent of the cost'
In July 2023, the province asked the court to settle the constitutional question of whether the transportation, trade and communication links across the Chignecto Isthmus are within the exclusive legislative authority of Parliament. The question of who should fund any upgrades was not part of the court reference.
Nova Scotia was joined in the court case by New Brunswick, while Prince Edward Island was also granted intervener status.
Ward pointed out that even if it's decided that Ottawa has sole jurisdiction over the low-lying, narrow strip of land that connects Nova Scotia and New Brunswick, it would have no obligation to fund projects aimed at preventing catastrophic flooding.
"So what is the point of asking you to find exclusive jurisdiction?" she asked the court.
"Practically speaking, things are unfolding as they should be, just like they did in the 1940s," Ward said. "Canada has agreed to pay 50 per cent of the cost and is working with the provinces."
As she did in a hearing in March, Ward asked the court to decline to answer the question, but she added that if it does decide to rule on the merits of the case, it should do so "in the negative."
Court reserved its decision
The court reserved its decision on Wednesday.
The provinces maintain that Ottawa has the responsibility to protect rail, power and communication lines as well as interprovincial trade from climate-change impacts, but federal lawyer Jan Jensen argued that this does not require Canada to protect the dikes.
Jensen argued that there was no evidence that the dikes alone are necessary to protect infrastructure such as the rail line.
Risks at the isthmus
"It's not clear at what level of sea level rise that the rail line's own embankments and bridges are not sufficient," he said.
Daniel Boyle, a lawyer for Nova Scotia's attorney general, had argued during a hearing on Tuesday that an eight-metre storm surge would flow over the dikes and submerge the highway and the rail line. At 12 metres, he said, "Nova Scotia would effectively become an island."
During his reply to the court on Wednesday, Boyle was asked by Justice David Farrar how he could "divorce himself" from previous comments made by Premier Tim Houston, who recently wrote a letter to Prime Minister Mark Carney seeking confirmation that Ottawa would agree "should the court decide that paying for the isthmus is a federal responsibility."
"Counsel for Nova Scotia have consistently throughout this proceeding maintained and made clear that funding is not at stake," Boyle said. "Nova Scotia's position has been that the outcome of this proceeding could advance discussions. This is a reference opinion, it's an advisory opinion."
Chignecto Isthmus court case will not determine who should pay
Chief justice says Houston's comments caused confusion about what the court was being asked
Lawyers for the Nova Scotia government confirmed this week that they're not looking to the province's highest court to weigh in on a funding question that Premier Tim Houston wants answered about the Chignecto Isthmus.
There has been a protracted dispute between Ottawa and the provinces of Nova Scotia and New Brunswick on the question of who should pay for work to bolster the isthmus against rising sea levels and increasingly severe storm surge caused by climate change.
The provinces want the federal government to pay in full for a project that's been estimated to cost $650 million over 10 years, but Ottawa has agreed to pay just half.
Meanwhile, the Nova Scotia government has asked the province's Appeal Court to give an opinion on jurisdictional responsibility for the isthmus — a narrow strip of land that connects Nova Scotia to New Brunswick and the rest of Canada. The case is being heard this week.
'Some confusion'
"There was some confusion in the minds of the panel on that point," Chief Justice Michael Wood told lawyers at the outset of the hearing, referring to the funding dispute.
Wood and two other Appeal Court judges heard some arguments related to the case earlier this year when the government of Canada tried to have the matter dismissed.
Lawyers for the province said at that time they weren't looking for an answer on who should pay. Rather, the question is whether Ottawa has "exclusive legislative authority."
However, just days after that initial hearing, Houston sent an open letter to Prime Minister Mark Carney — who had recently won the Liberal leadership — in which he contradicted his government's lawyers.
"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," Houston wrote to Carney.
Nova
Scotia Premier Tim Houston has previously said the court will decide
who should pay to repair and upgrade the dike system across the
Chignecto Isthmus. Lawyers for his government say that's not what the
court will decide. (CBC)
Wood brought up the correspondence in court Tuesday.
"I appreciate there may be some political aspects to that letter, but that's not the issue that we're being asked to decide in this reference — right?"
"That's correct, justice," responded Jeremy Smith, a lawyer representing the government of Nova Scotia.
'A political football'
The panel of justices pressed Smith and another lawyer for Nova Scotia, Daniel Boyle, about why the province was asking for the court's opinion.
Justice David Farrar questioned how useful it might be to determine that Ottawa has the sole ability to legislate on matters related to the isthmus.
The lawyers wouldn't say what type of legislation Canada should bring forward or even if any new legislation is necessary.
"So are you saying that you're asking this question of us so it can be a political football that you can use against the feds?" asked Farrar.
"I certainly wouldn't call it a political football," responded Smith.
He continued by saying there is "a certain amount of politics" involved in any provincial-federal dispute. Boyle said earlier in the hearing that the question was framed as "a pure question of law."
The lawyers said an answer from the court would help further the dialogue between the two levels of government.
Nova Scotia and New Brunswick agreed this spring to split the cost of the project with Ottawa, but Houston said he only did so to "avoid delays," while still hoping that Ottawa would change its position.
The arguments
Boyle and Smith argued that Ottawa has sole legislative authority over the isthmus because of the importance of protecting the land for the sake of interprovincial trade.
One of their core points harkened back hundreds of years to Nova Scotia's entry into Confederation. Boyle said Nova Scotia was hesitant to join the federation and was convinced to do so with the promise of an intercolonial railway. The lawyers said Canada is still obligated by those promises to take responsibility for protecting the CN rail line that runs over the isthmus.
The
Chignecto Isthmus connects Nova Scotia with the rest of Canada and is
vulnerable to severe flooding from high tides and storm surge. (CBC News)
They also argued that the dams, dikes and aboiteaux that protect the isthmus from tidal inundation are an interconnected system that crosses Nova Scotia and New Brunswick and can't be managed by either province alone.
New Brunswick and Prince Edward Island are interveners in the case.
A lawyer for the government of New Brunswick also made submissions on Tuesday, reiterating many of the same arguments made by Nova Scotia.
The hearing is expected to continue Wednesday with submissions from Prince Edward Island and the federal government.
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