Re: Bill S-273:

An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada Submission of Andrew Leach, Professor of Economics and Law, University of Alberta, appearing as an individual. Thank you, Senators, for inviting me to testify again before this Committee. [en français] C’est un plaisir d’être avec vous par téléconférence d’Edmonton, sur le territoire visé par le Traité No 6. Bill S -273 declares the Chignecto Isthmus Dykeland System and rela ted works [“the Dyke System”] to be for the general advantage of Canada.

A plain language reading of these words may seem innocuous but when included in federal legislation, they invoke one of the most sweeping powers of Parliament: the declaratory power in ss. 92(10)(

c) and 91(29) of the Constitution Act, 1867. I have three points to raise today. First, the Dyke System is interconnected and spans t he border between New Brunswick and Nova Scotia. As such, it is my opinion that it already falls within federal jurisdiction and thus that the declaration in Bill S-273 would be of no legal effect. Second, even if jurisdictional uncertainty is resolved through the declaration, jurisdiction carries no positive obligation to maintain the system . F inally, the threat to the Chignecto Isthmus from climate change, like that facing many of our coastal regions, is real and severe.

Nothing in what follows seeks to minimize the crisis.

The declaratory power is, as former Chief Justice Lyman Duff wrote in 1 929, an authority of a “most unusual nature” as it allows the federal government to assume jurisdiction over that which would othe rwise fa ll within the exclusive control of a province. 1 There is limited modern -era jurisprudence on the declaratory power, but Canadian courts “have never shown any disposition to limit its operation.” 2 Rather, declarations are “a policy decision of Parliament which will not normally be reviewed by the courts.” 3 Parliament’s use of the declaratory power is l imited only 1 Reference re Waters and Water-Powers, [1929] SCR 200 at 220 [Re: Waters and Water-Powers].

See also the reasons of Justice Duff in The King v Eastern Terminal Elevator Co, [1925] SCR 434 at 447 [Eastern Terminal Elevator]. 2 Ontario Hydro v Ontario (Labour Relations Board), [1993] 3 SCR 327 at 370 [Ontario Hydro]. 3 Ibid at 398. See also similar discussion at 370, citing Luscar Collieries Ltd v McDonald, [1925] SCR 460 at 480 [Luscar Collieries].

insofar as the identified works and undertakings must be “wholly situate in one province.”4 And, the Dyke System does not meet that test. Bill S -273 looks to circumvent this hurdle (s.2) by defining the Dyke S ystem as two distinct systems, one in each of the two provinces: (

a) a dyke system intended for water management wholly situated in the Nova Scotia portion of the Chignecto Isthmus trade corridor; and (

b) a dyke system intended for water management wholly situated in the New Brunswick portion of the Chignecto Isthmus trade corridor. But, even a cursory examination of a map of the integrated system gives away the game. Dykes, Aboiteux and Related Infrastructure in the Chignecto Area5 4 This is stipulated clearly in s. 92(10)(

c) of the Constitution Act, 1867. For emphasis on this requirement, see discussion of the use of the declaratory power in the context of the grain trade in Jorgenson v Attorney General of Canada, [1971] SCR 725 at 729 [Jorgenson]. See also Phineas Schwartz, “Fiat by Declaration-S.92(10)(

c) of the British North America Act” (1960) 2:1 Osgoode Hall LJ 17 at 3. 5 Wood Environment and Infrastructure Solutions, “Chignecto Isthmus Climate Change Adaptation Comprehensive Engineering and Feasibility Study – Final Report” (16 March 2022), online: <https://www2.gnb.ca/content/dam/gnb/Departments/trans/Chignecto/chignecto-isthmus-project- report-e.pdf> [perma.cc/B6PL-QTAP], fig 1.2.

Works – “physical things” – and undertakings – “an arrangement under which physical things are used” – can fall within provincial jurisdiction only if they lie wholly within that province. 6 The system of dykes, aboiteaux, and culverts lies on both sides of the border but also, in the case of the Missaguash River water control structure, spans the border. The Dyke System is the very definition of a work or undertaking “ extending be yond the l imits of a p rovince,” as stipulated in the s. 92(10)(

a) exception to provincial jurisdiction. The Dyke System is “functionally integrated.”7 There is no sense that the systems in New Brunswick and Nova Scotia could operate effectively or be updated independently of the other. It’s a federal work, without question, in my opinion.

There is precedent for the use of the declaratory power as a tool to resolve uncertainty regarding jurisdiction over works and undertakings, for example in legislation in relation to Bell Canada and international bridges and tunnels. 8 As Chief Justice Lamer wrote of an earli er Bell Canada declaration “if it is not completely redundant, [it] must have been seen as necessary to complete Parliament's control over the enterprise.” That may well be the case with the legislation you are considering here today.

And, as Lord M acNaghten wrote in a 1905 decision also regarding the works of Bell Canada, “ if they had been ‘wholly situate within the province,’ the effect would have been to give exclusive jurisdiction over them to the Parliament of Canada; but inasmuch as the works and undertaking (…) were not confined within the limits of the province, this part of the declaration seems to be unmeaning.”9 In my opinion, the words in the declaration in

section 4 of Bill S-273 take on their plain language meaning and are of no legal force and effect. Even if we allow that Bill S-273 clarifies that the Dyke System falls under federal jurisdiction, this brings with it no positive obligation for the federal government to maintain, fund, or act in any other way to support the system . It would, however, clarify that the provinces are incapable of legislative action in relation to the D yke System. Both Senator s Quinn and MacDonald have spoken about the coincidence of the federal declaration of jurisdiction over the Champlain Bridge and the federal funding of its c onstruction. It was just that: a coincid ence. One need not have 6 Quoted

definitions respectively from City of Montreal v Montreal Street Railway Company, [1912] 333 AC (PC) at 342 [Montreal Street Railway], and Reference re Regulation and Control of Radio Communication in Canada, [1932] 2 DLR 81 (PC) at 86 [ re Radio Communication].

See also Westcoast Energy Inc v Canada (National Energy Board), [1998] 1 SCR 322 at para 47 [Westcoast Energy]. 7 This definition was used to assess the extend of federal jurisdiction over gas proces sing facilities connected to a pipeline system in Westcoast Energy, supra note 6 at para 49. 8 Bell Canada Act, SC 1987, c 19, s. 5; International Bridges and Tunnels Act, SC 2007, c 1, s. 5. 9 City of Toronto v Bell Telephone Co of Canada, [1905] AC 52 (PC) at 60 [Toronto v Bell].

accompanied the other. The federal spending power is separate and distinct from federal legislative jurisdiction under

section 91(29). And finally, let me close by reminding you that there is a real and pressing problem facing Canada from climate change. Across the country, thousands of pieces of critical infrastructure and treasured natural areas face threats from climate change, and in particular from rising sea levels and increased storm in tensity. The Bay of Fundy is a region I treasure and I’ve travelled many times across the Chignecto Isthmus. We should be able to do more than rely on an aging, sometimes centuries-old system of shoreline reinforcement to guard it against the effects of climate change.

And that responsibility falls on both the federal government and the provinces, and exists regardless of which legislature has jurisdiction over the Chignecto Isthmus Dykeland System.