Court arguments over who pays for Isthmus looming
N.S. government has asked province's Court of Appeal to determine if feds have exclusive jurisdiction to maintain dykes, other structures protecting Chignecto Isthmus
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OTTAWA • Nova Scotia says it expects to lay out its full argument in court by February as to why Ottawa is solely responsible for safeguarding the vital strip of land connecting its province to New Brunswick.
The Higgs government’s argument is also likely to be revealed then as well.
The Nova Scotia government asked the province’s Court of Appeal in July to determine if the feds have exclusive jurisdiction to maintain the dykes and other structures in place protecting the land connection between Nova Scotia and New Brunswick known as the Chignecto Isthmus.
A teleconference hearing on Wednesday aimed to set filing deadlines to see the case proceed.
“It’s hoped that, assuming all goes well, at a further teleconference in January or February we will be able to offer substantive positions on behalf of Nova Scotia, and hopefully on behalf of the intervening parties as well,” said Nova Scotia government lawyer Daniel Boyle.
Justice David Farrar set a next teleconference for Feb. 14.
New Brunswick’s Office of the Attorney General was represented by three lawyers – Rose Campbell, Michael Hynes and Véronique Guitard – at the hearing on Wednesday.
The federal government, New Brunswick and Prince Edward Island were all granted intervener status in late September.
Meanwhile, Nova Scotia MLA Elizabeth Smith-McCrossin, whose Cumberland North riding includes part of the Isthmus, sought to intervene but was denied.
At a September hearing, Nova Scotia government lawyer Jeremy Smith argued against Smith-McCrossin’s inclusion, suggesting her opinion was similar to that of the provinces and likely wouldn’t add to answering the question in front of the court.
New Brunswick agreed.
Farrar did as well.
“It’s not necessary to make the determination that this court needs to make on the constitutional question,” Farrar said of Smith-McCrossin’s participation.
From a critical infrastructure perspective, the Chignecto Isthmus is a trade corridor of national significance as it’s responsible for carrying approximately $35 billion in trade per year on the CN Rail line and the Trans Canada Highway.
Rob Taylor
The steps toward the substance of the constitutional reference come as the Senate of Canada has heard first hand from the two provinces on the status of the project.
The feds have committed to pay half of the now $650-million price tag to protect the Chignecto Isthmus.
The two provinces believe it’s Ottawa’s responsibility to pay the entire bill.
But earlier this month, top officials from New Brunswick and Nova Scotia told a Senate committee studying the impacts of climate change on critical infrastructure that there have been talks over how the two provinces would split a remaining $325 million in the event Ottawa won’t pay it.
“This is a very unique situation,” said Rob Taylor, New Brunswick’s deputy minister of transportation and infrastructure.
“Nova Scotia would be cut off from the rest of the country.
“That being said, it is a unique project in that 70 or 75 per cent of the Isthmus falls within the New Brunswick boundaries.”
Taylor added: “It’s finding the happy medium of where the percentage of payment is, and the difficulty of potentially paying for assets that a province doesn’t own is creating some complexities that we’re still trying to work through.
“At this point we’re looking to become as amicable a 50-50 share as possible. Where the chips fall, I’m not 100 per cent sure.”
That would mean each province would need to budget roughly $162.5 million.
Meanwhile, the cost of doing nothing could be catastrophic.
“From a critical infrastructure perspective, the Chignecto Isthmus is a trade corridor of national significance as it’s responsible for carrying approximately $35 billion in trade per year on the CN Rail line and the Trans Canada Highway,” Taylor said “Climate change impact, specifically storm surges and increasing sea levels, pose a risk to the infrastructure within the Isthmus.”
Specifically, that risk is to 38 kilometres of dykes and everything behind it, Taylor said, including 19 kms of Trans-Canada Highway and 19 kms of CN railway.
“We have been relatively lucky so far, but as the effects of climate change worsen the chances of this perfect storm increase every year,” he said. “We need to address this risk now, especially since an engineered solution will require up to 10 years to complete.”
The two provinces contend that work toward a fix is ongoing, despite the federal-provincial standoff.
Project planning and preliminary work is ongoing.
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