Court declines to answer Nova Scotia's question on Chignecto Isthmus

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.

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.

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 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."