Published Jun 13, 2025 • Last updated 9 hours ago • 5 minute readThe Nova Scotia Court of Appeal declioned to rule on the Chignecto Isthmus, declaring “Any opinion we give would be used as a political tactic.” Photo by Paul Hutchings /Brunswick NewsThe Nova Scotia Court of Appeal will not provide an answer to the reference question about the federal government’s responsibility regarding infrastructure along the Chignecto Isthmus.In July 2023, the Nova Scotia government filed notice with the Court of Appeal concerning the constitutional responsibility for infrastructure that protects the interprovincial transportation, trade and communication links across the isthmus, a 35-kilometre strip of cross-border land that connects Nova Scotia to New Brunswick and the rest of Canada.THIS CONTENT IS RESERVED FOR SUBSCRIBERS ONLY.Subscribe now to access this story and more:Unlimited access to the website and appExclusive access to premium content, newsletters and podcastsFull access to the e-Edition app, an electronic replica of the print edition that you can share, download and comment onEnjoy insights and behind-the-scenes analysis from our award-winning journalistsSupport local journalists and the next generation of journalistsSUBSCRIBE TO UNLOCK MORE ARTICLES.Subscribe or sign in to your account to continue your reading experience.Unlimited access to the website and appExclusive access to premium content, newsletters and podcastsFull access to the e-Edition app, an electronic replica of the print edition that you can share, download and comment onEnjoy insights and behind-the-scenes analysis from our award-winning journalistsSupport local journalists and the next generation of journalistsRegister to unlock more articles.Create an account or sign in to continue your reading experience.Access additional stories every monthShare your thoughts and join the conversation in our commenting communityGet email updates from your favourite authorsSign In or Create an AccountorArticle contentThe specific reference question the court was asked to consider is if the infrastructure, basically the current system of dikes and aboiteaux, that protects the links from the ravages of Bay of Fundy flooding “is within the exclusive legislative authority of the Parliament of Canada.”Lori Ward, a lawyer for the federal government, argued during the three days of hearings that the ultimate issue before the court is funding, and that the province wants to use a decision as a “political pressure tactic . . . as ammunition in the political arena.”As such, Ward argued that the question was a waste and abuse of the court’s time.The three-member panel, composed of Chief Justice Michael Wood, Justice David Farrar and Justice Anne Derrick, seemed to agree in a written decision filed Friday.Article content“Any opinion we give would be used as a political tactic – as was argued by Canada at the hearing,” the panel said in its decision not to answer the initial reference question.“The submissions before us by Nova Scotia were on the basis of legislative authority and not on the issue of who was going to pay for the remediation of the infrastructure. However, it seems clear at the political level our opinion would be relied on as establishing that exact point. “The reference process is not a mechanism for achieving political ends.”Lawyers Jeremy Smith and Daniel Boyle, representing Nova Scotia, and Michael Hynes of New Brunswick said the protective infrastructure can be easily and clearly defined as the dike system.That system was constructed by the Acadians in the 17th century and there have been constant calls in recent years to raise the dikes that have deteriorated over time under inadequate maintenance.Article content Premier Tim Houston has long argued that the federal government should cover the complete cost of infrastructure upgrades along the Isthmus of Chignecto. Photo by Ryan Taplin /The Chronicle Herald“For at least the last 175 years, Nova Scotia has legislated in respect of the building, repair, maintenance, and management of dykes and aboiteaux to defend against encroaching waters,” the judicial panel wrote in its background information.However, Smith said the province’s “main argument is that the protective infrastructure is integral to things that are a federal undertaking,” referring to interprovincial trade, a railway and fibre optic communication links.That fragile infrastructure facilitates an estimated $100 million a day in trade, $35 billion a year, and a supply chain that daily moves a host of essential goods to Nova Scotia.Cost disputeIn September 2024, the Nova Scotia government said it had applied to the Disaster Mitigation and Adaptation Fund of the federal government. Through that fund, the federal government would fund $325 million, half of the $650-million cost for the 10-year infrastructure upgrade project. Nova Scotia and New Brunswick would be expected to pay the remainder.Article contentNova Scotia Premier Tim Houston has often repeated that Ottawa should pay the entire cost and he ran a successful fall election campaign on the premise that his majority government required an even stronger mandate to demand a fair shake from a federal government that had previously treated the province unfairly on issues that included the isthmus infrastructure project.In a March 19 letter to now Prime Minister Mark Carney outlining Nova Scotia’s priorities, Houston said the isthmus is the province’s connection to the rest of Canada and North America.“Nova Scotia recently agreed to cover 25 per cent of the cost of the repairs – a total of $162.5 million,” Houston wrote in the letter. “We agreed to this to avoid delays in the important work needed on the Isthmus. At the same time, we are committed to our ongoing reference to the court to determine responsibility for this national trade corridor.”Article contentThe purpose of the answer sought in court was murky, the judicial panel said.“Counsel for Nova Scotia said it was to ‘inform’ conversations. We infer that to mean conversations with Canada over the funding dispute. . . . Counsel for Nova Scotia also said it would provide ‘context” for any debates in Parliament should an act to declare the Chignecto Isthmus dikeland system and related works to be for the general advantage of Canada be reintroduced in Parliament.”Bill S-273 was passed by the Senate on June 11, 2024 and contains a declaration that the Chignecto Isthmus infrastructure system and related works are for the general advantage of Canada.The bill has not been introduced in the House of Commons. Chignecto Isthmus, as seen from St. Lawrence, Nova Scotia. BRUNSWICK NEWS ARCHIVES“It is difficult to envision how members of Parliament would be guided in their deliberations by an advisory opinion requested by a provincial government from its Court of Appeal,” the three-member panel wrote.Article content“We fail to see how an answer to the question would be useful in that context.“Finally, Nova Scotia’s argument, in part, relied on what it referred to as ‘unwritten constitutional principles.’ As it described them, the principles create a constitutional obligation on Canada to maintain a link between Nova Scotia and the rest of the country. New Brunswick and Prince Edward Island say similar principles apply to them.”The court agreed with federal lawyers who argued the constitutional obligation issue did not fall within the scope of the reference question and the court did not deal with the alleged obligation.“In summary, the vaguely worded question intended to foist jurisdiction on Canada concerning a subject in relation to which the provinces have been legislating for decades would be too problematic to answer,” the panel said.“There are undercurrents suggesting the answer is intended to be used for a political purpose. The alternative explanations for the utility of the reference are thin at best. The ramifications for past and future legislation are unclear. The unasked question about Canada’s obligation to maintain the link between Nova Scotia and the rest of the country should not be addressed under an alternative argument about unwritten constitutional principles.”Article content
Appeal Court won’t answer question about Chignecto Isthmus responsibility
