Feds can’t be forced to pay full cost of Chignecto Isthmus: officials

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OTTAWA • The feds won’t be on the hook to pay the entire cost of safeguarding the Chignecto Isthmus, even if the project is declared in the general interest of Canada by the courts or through legislation, says the federal government’s legal counsel.

The comments push back against attempted efforts by New Brunswick and Nova Scotia to compel Ottawa to pay the multimillion-dollar cost of safeguarding the vulnerable strip of land connecting their two provinces.

It means it may ultimately come down to whether there’s political will from the Trudeau government to pay more.

That’s as the feds are currently willing to pay just half.

The provinces have asked the Nova Scotia Court of Appeal to rule on whether Ottawa has the “exclusive” responsibility to maintain the dyke and other structures in place to protect the land connection.

Specifically, they 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?”

Meanwhile, a bill recently introduced in the Senate by New Brunswick Sen. Jim Quinn aims to bring the vital Chignecto Isthmus corridor under federal jurisdiction, declaring the dyke network to be “for the general advantage of Canada.”

But in front of a committee of senators studying that bill on Wednesday night, federal officials said neither outcome could force Ottawa to pay more.

“The declaratory power is really a determination of what laws apply,” Rachel Heft, legal counsel for Infrastructure Canada, said during testimony.

It would mean that the Isthmus would be subject to federal environmental assessment and duty to consult legislation.

“But it doesn’t determine funding,” Heft said. “The funding is not associated with the declaration to the general advantage of Canada.”

It was a distinction revisited again and again by senators.

“Just to be really clear, just because something is declared to be to the general advantage of Canada, that wouldn’t necessarily mean that the federal government was on the hook for 100 per cent of the maintenance costs of said thing, would it?” Sen. Paula Simons asked.

Heft replied: “When a work is declared to be for the general advantage of Canada, the effect of that declaration is that the work falls within the jurisdiction of Parliament for the purposes of laws and regulations.”

Simons asked again later: “It wouldn’t require the federal government to pay for anything more than they’ve already agreed to pay?”

Heft answered: “That’s correct.”

Several senators cited how the feds fully funded the building of the Champlain Bridge in Montreal, declaring it for the general advantage of Canada in the process of doing so.

But Shawn Hibbard, director general of major bridges and projects with Infrastructure Canada, told the committee that it was to provide certainty over what laws would apply to the project.

Officials also pointed out that while all of the country’s international bridges and tunnels carry that “general advantage” declaration, the feds don’t pay for 100 per cent of their cost.

In Windsor, Ont., the Ambassador Bridge is privately owned with Canada having no financial responsibility. Meanwhile, along that same river, there’s the Gordie Howe International Bridge project where the feds have taken full financial responsibility for the federally owned infrastructure.

“But that’s a political decision, not a legal one,” Simons said.

“That’s correct,” Heft replied.

Premier Blaine Higgs testified in front of the same committee last week, calling on the country’s senators to help push the federal government into paying the entire price of the Isthmus fix.

The premier said a declaration that the federal government is exclusively responsible for maintaining vital economic links between provinces would give both New Brunswick and Nova Scotia needed leverage in talks.

“We believe the government of Canada should assume the full cost of this project in keeping with their constitutional responsibilities,” Higgs said.

Several senators said Wednesday night appeared to suggest a declaration would still put pressure on Ottawa to do more.

“There’s a difference between the declaratory power and the funding, except, to me, they seem really connected,” said Sen. Bernadette Clement, suggesting smaller jurisdictions may increasingly be forced to turn to the federal government for massive projects they simply can’t afford amid climate change.

Prince Edward Island Sen. Mary Robinson stated the Isthmus is “definitely in the interest of Canadians.”

Quinn said he sees his proposed bill as providing the feds “flexibility” to spend more.

Currently, the feds want to use its Disaster Mitigation and Adaptation Fund to pay to fix the Chignecto Isthmus, but that caps its contribution at 50 per cent of the project’s cost.

Quinnalso argued that his proposed legislation presents the “ability to make a more immediate decision,” suggesting this debate could be bogged down in the courts for the foreseeable future.

Federal officials were also asked repeatedly on Wednesday night whether the Isthmus is already considered federal jurisdiction as its dykes arguably represent a work that spans interprovincial borders.

They repeatedly dodged that question, contending the government has yet to put forward a formal position.

“We don’t currently have a position to put forward for you on that today,” Heft said.