Court declines to answer Nova Scotia’s question on Chignecto Isthmus

The Nova Scotia Court of Appeal recently made a decision not to weigh in on the legislative authority over the Chignecto Isthmus, citing the question posed by the province as “too problematic to answer.” The court was asked nearly two years ago by the Nova Scotia government whether the infrastructure protecting the interprovincial transportation, trade, and communication links across the Chignecto Isthmus falls under the exclusive legislative authority of the Parliament of Canada.

A panel of three judges heard arguments earlier this year from lawyers representing the governments of Nova Scotia and Canada, as well as interveners Prince Edward Island and New Brunswick, who supported Nova Scotia’s position. However, in their decision released on Friday, Chief Justice Michael Wood, Justice David Farrar, and Justice Anne Derrick declined to answer the province’s question, stating that it was vague, imprecise, and had political undertones.

The judges expressed concerns that the question was an attempt to drag the court into a political dispute over who is responsible for funding the remediation of the isthmus. The ongoing dispute between the federal government and the provinces of Nova Scotia and New Brunswick over the funding of dike upgrades, estimated at $650 million over 10 years, was highlighted as the underlying issue.

Premier Tim Houston expressed disappointment with the court’s decision, arguing that all constitutional questions have political undertones and should be answered. He believed that the court case would help determine who should be responsible for covering the costs, despite his government’s lawyers stating they were not seeking a determination of financial responsibility from the court.

The court emphasized that the reference process should not be used for political purposes and must have a sufficient legal component to warrant judicial intervention. They pointed to the need for clarity in the question posed, particularly in describing the infrastructure needing protection.

In response to the court’s decision, Nova Scotia MP and federal Justice Minister Sean Fraser reiterated the federal government’s commitment to protecting the isthmus and willingness to contribute $325 million towards the project’s cost. He emphasized the importance of safeguarding the land strip for regional connectivity, economy, and prosperity.

Overall, the court’s decision reflects the importance of clarity and specificity in legal questions posed for consideration and underscores the need to avoid using the judicial system for political ends. The ongoing dispute over the Chignecto Isthmus highlights the complexities of interprovincial relations and the challenges of addressing infrastructure issues that span multiple jurisdictions.