Chignecto Isthmus court case will not determine who should pay

Lawyers for the Nova Scotia government confirmed this week that they're not looking to the province's highest court to weigh in on a funding question that Premier Tim Houston wants answered about the Chignecto Isthmus.

There has been a protracted dispute between Ottawa and the provinces of Nova Scotia and New Brunswick on the question of who should pay for work to bolster the isthmus against rising sea levels and increasingly severe storm surge caused by climate change.

The provinces want the federal government to pay in full for a project that's been estimated to cost $650 million over 10 years, but Ottawa has agreed to pay just half.

Meanwhile, the Nova Scotia government has asked the province's Appeal Court to give an opinion on jurisdictional responsibility for the isthmus — a narrow strip of land that connects Nova Scotia to New Brunswick and the rest of Canada. The case is being heard this week.

'Some confusion'

"There was some confusion in the minds of the panel on that point," Chief Justice Michael Wood told lawyers at the outset of the hearing, referring to the funding dispute.

Wood and two other Appeal Court judges heard some arguments related to the case earlier this year when the government of Canada tried to have the matter dismissed. 

Lawyers for the province said at that time they weren't looking for an answer on who should pay. Rather, the question is whether Ottawa has "exclusive legislative authority."

However, just days after that initial hearing, Houston sent an open letter to Prime Minister Mark Carney — who had recently won the Liberal leadership — in which he contradicted his government's lawyers.

"I am seeking confirmation that a government led by you will accept the decision of the court, should the court decide that paying for the isthmus is a federal responsibility," Houston wrote to Carney.

Wood brought up the correspondence in court Tuesday.

"I appreciate there may be some political aspects to that letter, but that's not the issue that we're being asked to decide in this reference — right?"

"That's correct, justice," responded Jeremy Smith, a lawyer representing the government of Nova Scotia.

'A political football'

The panel of justices pressed Smith and another lawyer for Nova Scotia, Michael Boyle, about why the province was asking for the court's opinion.

Justice David Farrar questioned how useful it might be to determine that Ottawa has the sole ability to legislate on matters related to the isthmus. 

The lawyers wouldn't say what type of legislation Canada should bring forward or even if any new legislation is necessary.

"So are you saying that you're asking this question of us so it can be a political football that you can use against the feds?" asked Farrar.

"I certainly wouldn't call it a political football," responded Smith.

He continued by saying there is "a certain amount of politics" involved in any provincial-federal dispute. Boyle said earlier in the hearing that the question was framed as "a pure question of law."

The lawyers said an answer from the court would help further the dialogue between the two levels of government.

Nova Scotia and New Brunswick agreed this spring to split the cost of the project with Ottawa, but Houston said he only did so to "avoid delays," while still hoping that Ottawa would change its position.

The arguments

Boyle and Smith argued that Ottawa has sole legislative authority over the isthmus because of the importance of protecting the land for the sake of interprovincial trade. 

One of their core points harkened back hundreds of years to Nova Scotia's entry into Confederation. Boyle said Nova Scotia was hesitant to join the federation and was convinced to do so with the promise of an intercolonial railway. The lawyers said Canada is still obligated by those promises to take responsibility for protecting the CN rail line that runs over the isthmus.

They also argued that the dams, dikes and aboiteaux that protect the isthmus from tidal inundation are an interconnected system that crosses Nova Scotia and New Brunswick and can't be managed by either province alone.

New Brunswick and Prince Edward Island are interveners in the case.

A lawyer for the government of New Brunswick also made submissions on Tuesday, reiterating many of the same arguments made by Nova Scotia. 

The hearing is expected to continue Wednesday with submissions from Prince Edward Island and the federal government.