Chignecto Isthmus case waste of Nova Scotia Court of Appeal's time, federal lawyer says

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."