Ottawa implores court not to answer Chignecto Isthmus question

Weighing in on the authority over the Chignecto Isthmus is a waste of the Nova Scotia Appeal Court's "valuable time," federal lawyers argued Tuesday as they urged the province's highest court to forgo answering the constitutional question posed last summer.

The Houston government asked the court in July to rule on whether Ottawa has the "exclusive" authority to protect infrastructure on the land connection between Nova Scotia and New Brunswick.

That responsibility has been a point of contention between the Maritime provinces and Ottawa, and federal government lawyers asked the Appeal Court this week to exercise its discretion not to answer, arguing the question is vague and unfounded.

"The question is essentially an attempt to enlist the court in aid of what is really a funding dispute between orders of government," Lori Ward, a lawyer representing the federal government, told the panel of three Appeal Court judges in Halifax.

"And respectfully, that is an unnecessary use of this court's valuable time."

The isthmus is the only path for a national railway, highway, and power and communication lines that connect Nova Scotia to New Brunswick and the rest of Canada.

The Maritime and federal governments have been in talks for years about upgrading an aging dike system that protects the isthmus against inundation from the Bay of Fundy.

Many people who live or rely on the isthmus are calling for urgent action as experts warn that climate change is causing sea-level rise and more frequent and powerful storms, increasing the risk of severe flooding.

Appeal Court reserves decision

The latest cost estimate for upgrading the dikes is $650 million. Ottawa has offered to pay half, but Nova Scotia and New Brunswick want the federal government to pay the full cost.

Lawyers for Nova Scotia said they're not asking the court to rule on who should pay. They argued to the court that all jurisdictions involved need clarity on who has legislative authority to protect the CN railway, Trans-Canada highway, electric transmission lines and fibre-optic cables on the isthmus.

"Any action that will be taken in regards to protection of the isthmus after receiving a decision will be political decisions," said Jeremy Smith, a lawyer for Nova Scotia.

Nova Scotia's Court of Appeal reserved its decision on whether it will answer the question. If the answer is yes, another hearing will be scheduled. If the answer is no, the matter is over.

Chief Justice Michael Wood noted several times during the hearing that the court could decide to amend the question to make it more specific. He said it could also add qualifications to its answer to ensure it's not "misused" in the future.

New Brunswick and Prince Edward Island were intervenors in the case and both supported Nova Scotia's position.

Complicated question

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, railways, farms and communities.

Ward said the question of division of powers is complicated by existing provincial legislation governing such things as agriculture and the dike system on the isthmus.

"There are lots of things involved on the isthmus, and lots of them are provincial and some of them are federal," she said, adding that courts deciding any future questions would likely find there is "concurrent jurisdiction."

Smith argued that the dike system is "integral" to protecting the rail and communication lines that run through the isthmus, both of which are the responsibility of the federal government.

"It's not a hypothetical question. It's a question that addresses infrastructure that exists on the ground," Smith said. "The main argument is that it's not a thing standing on its own, that it's integrated into things that are federal undertakings."

Vulnerable area

At that point, Wood asked whether the Trans-Canada Highway that crosses the isthmus is a federal undertaking. "The trade that goes over it is," replied Smith, although he conceded that the highway itself isn't.

Smith also argued the records submitted to the court give clear definitions of what constitutes protective infrastructure. Those records include an engineering study on the dike system across the isthmus, he said.

Wood asked Smith if it would be fair for the court to amend Nova Scotia's question to make it clear that the infrastructure in question is the dike system, and he replied, "that would be completely fair."