Court of Appeal

Nova Scotia Court of Appeal

Citation: Reference re Constitutional Questions Act (NS) Chignecto Isthmus, 2025 NSCA 45

Date: 20250613

Docket: CA 525464

Registry: Halifax

IN THE MATTER OF Sections 3 and 4 of the Constitutional Questions Act, R.S.N.S. 1989, c. 89;

 

AND IN THE MATTER OF a Reference by the Governor in Council concerning the constitutional responsibility for infrastructure which protects the interprovincial transportation, trade and communication links across the Chignecto Isthmus, as set out in Order in Council 2023-202 dated July 19, 2023

- and -

The Attorney General of Canada, the Attorney General of New Brunswick, and the Attorney General of Prince Edward Island

Intervenors

 

Judges:	Wood, C.J.N.S., Farrar and Derrick, JJ.A.
Appeal Heard:	March 11, 2025 (Preliminary issue); May 20, 2025 (Merits), in Halifax, Nova Scotia
Facts:	The case concerns the constitutional responsibility for infrastructure protecting interprovincial transportation, trade, and communication links across the Chignecto Isthmus, which connects Nova Scotia to New Brunswick and the rest of mainland Canada. The infrastructure in question includes dykes and other protective measures against tidal flooding, historically managed by both provincial and federal governments (paras 12-30).
Procedural History:	Canada raised a preliminary issue asking the Court to refuse to answer the reference question . The Court heard the preliminary issue on March,11, 2025 and reserved its decision . The Court heard argument on the merits on May 20, 2025 and, again, reserved its decision on the preliminary issue and the merits .
Parties’ Submissions:	•        Attorney General of Nova Scotia: Argued that the infrastructure falls under the exclusive legislative authority of the Parliament of Canada and sought judicial clarification. (paras 1). •        Attorney General of Canada: Raised a preliminary issue asking the Court to refuse to answer the question, arguing that the question was vague and lacked a legislative scheme to assess jurisdiction (paras 6, 38-39). •        Attorney General of New Brunswick: Supported Nova Scotia's position. •        Attorney General of Prince Edward Island: Supported Nova Scotia’s position.
Legal Issues:	•        Should the Court answer the reference question regarding the constitutional responsibility for the infrastructure on the Chignecto Isthmus?
Disposition:	•        The Court declined to answer the reference question.
Reasons:	Per Wood, C.J.N.S., Farrar, and Derrick JJ.A.: The Court found the reference question to be vague and lacking in sufficient legal content, as it did not present a legislative scheme or specific infrastructure details to assess jurisdiction. The question was seen as potentially being used for political purposes, particularly concerning funding disputes between Nova Scotia and the federal government. The Court emphasized the importance of judicial independence and the advisory nature of reference opinions, noting that the question's imprecision and political undertones made it inappropriate to answer (paras 31-58).

Nova Scotia Court of Appeal

Citation: Reference re Constitutional Questions Act (NS) Chignecto Isthmus, 2025 NSCA 45

Date: 20250613

Docket: CA 525464

Registry: Halifax

 

IN THE MATTER OF Sections 3 and 4 of the Constitutional Questions Act, R.S.N.S. 1989, c. 89;

 

AND IN THE MATTER OF a Reference by the Governor in Council concerning the constitutional responsibility for infrastructure which protects the interprovincial transportation, trade and communication links across the Chignecto Isthmus, as set out in Order in Council 2023-202 dated July 19, 2023

- and -

The Attorney General of Canada, the Attorney General of New Brunswick, and the Attorney General of Prince Edward Island

Intervenors

 

Judges:	Wood, C.J.N.S., Farrar and Derrick, JJ.A.
Appeal Heard:	March 11, 2025 (Preliminary issue); May 20, 2025 (Merits), in Halifax, Nova Scotia
Written Release	June 13, 2025
Held:	Reference Question not answered, per reasons of the Court
Counsel:	Jeremy Smith and Daniel Boyle, for the Attorney General of Nova Scotia Rose Campbell and Michael Hynes, for the Intervenor the Attorney General of New Brunswick Lori Ward, Jan Jensen and Victor Ryan, for the Intervenor the Attorney General of Canada Mitchell O’Shea, for the Intervenor the Attorney General of Prince Edward Island

 

 

 

Reasons for judgment:

Introduction

[1]             On July 19, 2023, the Governor in Council referred the following question (the Question) to the Nova Scotia Court of Appeal, pursuant to the Constitutional Questions Act:[1]

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?

[2]             On September 21, 2023, this Court granted the Attorney General of Canada, Attorney General of New Brunswick and Attorney General of Prince Edward Island leave to intervene in the proceeding.[2]

[3]             On July 5, 2024, with the consent of all parties, the Record was filed by Nova Scotia.

[4]             On September 12, 2024, a Supplementary Record was filed by Canada, again with the consent of all parties.

[5]             Nova Scotia, New Brunswick and Prince Edward Island filed facta on February 12, 2024.

[6]             Canada filed its factum on January 17, 2025. In addition to addressing the merits of the constitutional question, Canada raised a preliminary issue asking the Court to refuse to answer the Question.

[7]             New Brunswick filed a reply factum on February 6, 2025, and Nova Scotia filed a reply factum on February 7, 2025. Prince Edward Island did not file a reply factum.

[8]             We determined we would hear the preliminary issue before hearing the matter on its merits. On March 11, 2025, we heard arguments from all parties on the preliminary issue and reserved our decision.

[9]             After further consideration, the Court determined it would hear the parties on the merits, deferring its decision on the preliminary issue until after the merits hearing.

[10]         On May 20 and 21, 2025, the Court heard argument on the merits and reserved its decision on both the preliminary issue and the merits.

[11]         For the reasons that follow, we decline to answer the Question.

Background

[12]         It is against the following backdrop we are asked to answer the Question.

[13]         The Chignecto Isthmus (“the Isthmus”) is the only land connection linking Nova Scotia to New Brunswick and the rest of mainland Canada. Beginning in the late 1600s, the area was dyked for agricultural purposes. Since then, significant infrastructure of various kinds has been built in the area.[3]

[14]         Nova Scotia did not define what protective infrastructure it was referring to in the Question, but their submissions in March, both written and oral, focused on the dykes on the Bay of Fundy side of the Isthmus. In the May hearing, Nova Scotia resiled from that position and spoke about the application of the Question to other protective infrastructure.

[15]         Nova Scotia and New Brunswick, in their 2023 “without prejudice” application to the federal Disaster Mitigation and Adaptation Fund (“DMAF Application”) for project funding to raise the existing dykeland system on the Isthmus, stated: “the Provinces of New Brunswick and Nova Scotia have specific legislation enabling/authorizing the construction, alteration, and maintenance of works (e.g. dykes, aboiteaux, drainage) to protect lands from tidal flooding.”[4] The “without prejudice” nature of the DMAF Application arose from a dispute between Nova Scotia and New Brunswick with Canada over who was responsible to pay the remediation costs for the Isthmus.

[16]         The recitals to An Act for Appointing Commissioners of Sewers identified the need for dykes as it related to the interests of Nova Scotia in 1760:

Whereas great quantities of marsh, meadows, and low grounds, in this Province, and particularly in the Bay of Fundy, and rivers, bays and creeks, branching therefrom, are spoiled by overflowing of the sea, and other waters; which by industry may be greatly improved, as well for the general good, as for the benefit and profit of the owners; and also much meadow and pasture land might be gained out of swamps, and other rough and unprofitable grounds by drowning and draining the same: To the intent therefore, that the new [settlers] and other proprietors of such marches, meadows, and low grounds, may be encouraged and same to raise dykes, and remove such obstructions as prevent these lands from being immediately useful.[5]

[17]         Accordingly, the enactment provided for:

[…] to grant commissions of sewers, to such and so many able and discreet persons, as to them shall seem meet, for the building and repairing such dykes and wares as are necessary to prevent inundations; and also for the damming and flowing of swamps, and other unprofitable grounds, and draining of them: By which the said commissioners shall be impowered to meet and convene together from time to time as occasion may require, to view, consider, consult, and contrive such ways and methods for building and repairing such dykes and wares, as are necessary to prevent inundations, and for the drowning and draining of swamps, and other unprofitable grounds […][6]

[18]         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.

[19]         Canada in its factum provided a chart setting out a number of the Nova Scotia Acts and the sections relating to dykes and/or aboiteaux. The chart is reproduced as Appendix A to this decision. The Acts are not limited to the Isthmus but would apply to it.

[20]         New Brunswick has similarly legislated. Again we reproduce the chart from Canada’s factum as Appendix B.

[21]         In the 1930s and early 1940s, farmers and local marsh organizations reported that the original structures at the head of the Bay of Fundy protecting farmland were failing, and economic circumstances made it difficult for them to maintain these dykes and aboiteaux. In response, Canada, in collaboration with the two provinces, created the Maritime Marshland Rehabilitation Administration.[7]

[22]         In 1948, Canada also legislated in respect of building dykes, aboiteaux and breakwaters in the region with the Maritime Marshland Rehabilitation Act (“MMRA”).[8] Projects to be undertaken pursuant to the MMRA were conditional upon provincial involvement and responsibility for them and their future maintenance.

[23]         By the time it was wound up in 1970, the Maritime Marshland Rehabilitation Administration had shored up existing structures, replacing or repairing 373 kilometres of dykes and over 400 aboiteaux and constructing five tidal dams.[9] By that time, Nova Scotia and New Brunswick had taken over all responsibilities for the dykes and other works undertaken pursuant to the MMRA.[10] Canada repealed the MMRA in full with the enactment of the Government Organization Act, 1983.[11]

[24]         According to Nova Scotia and New Brunswick’s DMAF Application, the Land Protection unit of the Nova Scotia Department of Agriculture is mandated to protect agricultural marshland through the construction and maintenance of its critical agricultural dykeland system comprised of 81 agricultural marshes, 240 km of dykes, 250 aboiteaux, and 17,000 hectares of protected land, which includes highly productive agricultural land.[12] The Land Protection Section operates under the Agricultural Marshland Conservation Act.[13]

[25]         The New Brunswick Department of Transportation and Infrastructure has been providing the marshland maintenance services for its dykeland system for 56 years. The infrastructure in place to protect lands and infrastructure assets includes 80 km of dykes, 76 water control structures or “aboiteaux,” two tidal dams, 112 km of roads, and a bridge.[14] A report called “Fundy Agricultural Marshlands Flood Maps” says that in Nova Scotia and New Brunswick there are currently 364 km of dykes protecting 32,350 hectares of agricultural land.[15]

[26]         The boundaries of the Isthmus are not referred to in any parties’ submissions. It is approximately 21 kilometres wide and separates the waters of the Bay of Fundy from those of the Northumberland Strait.[16] The Record is focused on the Bay of Fundy, with little reference to the remainder of the Isthmus or the northern shore along the Northumberland Strait. Aerial images show a network of local roads and what appear to be a variety of private properties throughout the Isthmus.[17]

[27]         A map in the Chignecto Isthmus Climate Change Adaptation Comprehensive Engineering and Feasibility Study (the “Feasibility Study”) shows the town of Amherst, Nova Scotia very close to dykes and the town of Sackville, New Brunswick within mere metres.[18] In 2021, there were 3,047 private dwellings in Sackville and 4,799 in Amherst.[19] Private properties, local roads, a wind farm, and what appear to be large parcels of land with crop tracts can be seen from aerial images of the vicinity.[20]

[28]         An appendix to the Feasibility Study lists the TransCanada Highway, CN Rail, telecommunication easements, power transmission lines, wind farms, wastewater treatment plants, schools, residential communities, and small businesses as being at risk of adverse impacts from flooding.[21] The DMAF Application also notes private wells as being potentially affected.[22] The value of public and private assets in the dykeland is estimated at over $100 million (more than $70 million in Nova Scotia.)[23]

[29]         Neither Nova Scotia nor New Brunswick indicates any disagreement between them about the need for protective infrastructure or how it should run across their provincial border. They “work closely to develop best practices and standards for constructing and maintaining the dykeland system by engaging stakeholders, university researchers and engineering experts.”[24] In their application for funding, they reported working on a memorandum of understanding for a joint project to raise the dyke system on the Isthmus with a governance structure including representatives from their respective governmental departments.[25]

[30]         Both the provincial and federal governments have been involved in legislating and managing the dykes in a cooperative manner without any issues arising with respect to legislative authority until an “impasse” arose with respect to the responsibility for the infrastructure protecting the Isthmus.[26] This is discussed in more detail in paragraphs 46 – 51 infra.

Issue - Should the Court answer the Question?

Analysis

[31]         In Reference re Same-Sex Marriage, 2004 SCC 79, the Supreme Court of Canada outlined the approach as to whether a court should decline to answer a reference question:

61       The first issue is whether this Court should answer the fourth question, in the unique circumstances of this reference. This issue must be approached on the basis that the answer to Question 4 may be positive or negative; the preliminary analysis of the discretion not to answer a reference question cannot be predicated on a presumed outcome. The reference jurisdiction vested in this Court by s. 53 of the Supreme Court Act is broad and has been interpreted liberally: see, e.g., Secession Reference, supra. The Court has rarely exercised its discretion not to answer a reference question reflecting its perception of the seriousness of its advisory role.

62       Despite this, the Court may decline to answer reference questions where to do so would be inappropriate, either because the question lacks sufficient legal content (which is not the case here) or because attempting to answer it would for other reasons be problematic.

63       In the Secession Reference, supra, at para. 30, we noted that instances where the Court has refused to answer reference questions on grounds other than lack of legal content tend to fall into two broad categories: (1) where the question is too ambiguous or imprecise to allow an accurate answer: see, e.g., Reference re Goods and Services Tax, [1992] 2 S.C.R. 445, at p. 485; and Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at para. 256; and (2) where the parties have not provided the Court with sufficient information to provide a complete answer: see, e.g., Reference re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, at pp. 75-77; and Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, at para. 257. These categories highlight two important considerations, but are not exhaustive.

[32]         The unique nature of a reference has been described by this Court in Reference re Bill 148, 2022 NSCA 39:

[17]        The unique nature of a reference was described by this Court in the decision on the Unions’ motions:

[12]         Peter Hogg in Constitutional Law of Canada, 5^th ed. Supplemented, loose-leaf (Toronto: Thomson Reuters Canada, 2007), notes at p. 8-20:

In the Reference Appeal [1912] A.C. 571, as quoted above, the Privy Council held that the Court’s answer to a question posed on a reference was ‘advisory’ only and of ‘no more effect than the opinions of the law officers’. It follows that the Court’s answer is not binding even on the parties to the reference, and is not of the same precedential weight as an opinion in an actual case. This is certainly the black-letter law. But there do not seem to be any recorded instances where a reference opinion was disregarded by the parties, or where it was not followed by a subsequent court on the ground of its advisory character. In practice, reference opinions are treated in the same way as other judicial opinions. [emphasis added]

[13]         Although in practice a reference opinion may be treated the same way as other judicial opinions, this does not change its distinguishing characteristics from actions. References arise in a totally different manner, are advisory in nature and are heard in the first instance at the appellate level.

[14]         In contrast to an action, this Court has discretion to not answer any question posed on a reference. As Hogg notes:

However, the Court has often asserted and occasionally exercised a discretion not to answer a question posed on a reference. It may exercise that discretion where the question is not yet ripe, or has become moot, or is not a legal question, or is too vague to admit of a satisfactory answer, or is not accompanied by enough information to provide a complete answer. (p. 8-20)

[15]         Finally, contrary to an action, there is no formal procedure for adducing evidence. Hogg also refers to the difficulty of proving facts on a reference:

Proof of facts in a reference is peculiarly difficult, because a reference originates in a court that is normally an appellate court: there is no trial, and no other procedure enabling evidence to be adduced. (8-23)

[33]         Professor Carissima Mathen (now Justice Mathen) in Courts Without Cases; The Law and Politics of Advisory Opinions[27] emphasised the discretion to refuse to answer is crucial to judicial independence:

           Canadian courts […] largely accept that they may perform functions other than deciding disputes that present as ‘cases’. That has had numerous implications for the role of the courts.

            An entity that is expected to perform at the command of another could be perceived as being subordinate to it. To be sure, it is common in any system of governance for branches of the state to have to respond to each other as a matter of practical or constitutional reality. In a presidential system, the executive must respond to a Bill passed by the legislature, indicating his or her consent (or veto). Such relationships do not necessarily imply subordination. The particular concern here is whether the fact that the court is expected to modify its actions, priorities and tasks because of an executive demand may indicate, in a non-trivial sense, diminished independence. When references are initiated, the courts are expected to respond. The Supreme Court of Canada, for example, must modify its schedule to accommodate the necessary hearings. It must devote both administrative and judicial resources to dealing with the myriad requests that accompany them. And it must allocate time to sifting through the arguments, both written and oral; discussing the issue in conference; and, finally, delivering a written opinion.

            Canadian courts do retain a significant degree of control over the process. Under the Supreme Court Act, for example, the Court retains full say over such things as: appointing amicus curiae, directing process, deciding on additional participants, assigning the judges who will review and hear the argument, deciding on the content of the opinion and determining the timing of its release.

            Such control may help mitigate the perception that Canadian courts, and the Supreme Court in particular, are captive to another branch. Yet, the fundamental character of the reference seems largely unaffected. It is important, then, to consider other responses, by the judiciary itself, that seem intended to resist the limiting effect of a reference on its institutional autonomy. The most important of those is resisting or refusing to provide an answer.

            On numerous occasions, the Supreme Court simply has refused to engage with the question posed to it by the executive. At times, the Court has seen fit to modify the question in some way; at others, it has declined to respond altogether.

[34]         Professor Mathen further noted a court’s refusal to answer a Question may enhance judicial power by entrenching its interpretative role and highlighting its independence:

            For at least two reasons, this second point is significant. First, it finds a counterpart in the Court’s approach in ordinary cases. Especially since 1982, the Court has entertained cases that strictly speaking, were moot, because it determined that the hearing would serve some additional interest. In so doing, the Court acknowledges limits to its jurisdiction while retaining the authority to determine what those limits are. To be sure, this is common to many types of judicial craft. In the context of references, though, which strain the ordinary understanding of what a court does, it is noteworthy that the Supreme Court does not consider itself bound to observe what another branch wants it to do. In other words, while the refusal seems on the surface an acknowledgment of the limits of judicial power, in practice it may serve to enhance it, by both entrenching a certain type of interpretative role and highlighting the court’s independence.[28]

[Emphasis added]

[35]         We now turn to why we decline to answer the Question.

[36]         As the case law indicates, a court has a broad discretion not to answer a Reference Question for a wide variety of reasons, including where the Question is vague, inappropriate or where answering it would be problematic.

[37]         This Reference is unique in that it was not initiated by Canada, whose jurisdiction is directly implicated by the Question. Typically, a reference on division of powers would have draft (or actual) legislation or at least a proposed legislative scheme, or some governmental action which would bring the legislative authority into question. None of that was before us.

[38]         The question we have been asked is vague. We would have to engage in speculation as to the pith and substance of the legislation Nova Scotia says would fall under the exclusive jurisdiction of Canada. In Reference re Goods and Services Tax,[29] the Supreme Court of Canada recognized a court is placed in an impossible position when it is asked to answer a reference question in circumstances where a legislative scheme is not before the court:

In my view, the Attorney General of Canada is quite correct to argue that in the absence of a legislative scheme the pith and substance of which can be ascertained, this Court is placed in the impossible position where it cannot distinguish between valid schemes of provincial legislation, and colourable attempts to circumvent a valid federal scheme of taxation enacted under s. 91(3).

Where this Court is faced with a hypothetical question which cannot be answered with any assurance of correctness, the appropriate course of action is for us to decline to answer the question. In McEvoy v. Attorney General for New Brunswick, 1983 CanLII 149 (SCC), [1983] 1 S.C.R. 704, we said (at p. 708):

This Court is entitled to exercise its judgment on whether it should answer referred questions if it concludes that they do not exhibit sufficient precision to permit cogent answers. This is irrespective of the fact that the reference power is couched in broad terms . . . .

It is clear that we are entitled to decline to answer a question referred to us on a reference if the question is such that the answer given would not be precise or useful: see also, Reference re Education System in Montreal, 1926 CanLII 67 (SCC), [1926] S.C.R. 246, Reference re Waters and Water-Powers, 1929 CanLII 72 (SCC), [1929] S.C.R. 200, Reference re Angliers Railway Crossing, 1937 CanLII 51 (SCC), [1937] S.C.R. 451, Reference re Authority of Parliamen in Relation to the Upper House, 1979 CanLII 169 (SCC), [1980] 1 S.C.R. 54. The sixth constitutional question in this Reference cannot usefully be answered in its present form, and we therefore respectfully decline to answer it.

[Emphasis added]

[39]         The inability to distinguish between valid schemes of provincial legislation and federal legislation is especially significant in this case. Appendix A and B set out in detail the legislation that has been enacted by both Nova Scotia and New Brunswick. It is extensive. We are being asked to opine on whether Canada has exclusive legislative jurisdiction with respect to the infrastructure of the Isthmus. We do not have any federal legislation to determine whether it is a valid exercise of the federal jurisdiction under s. 91 of the Constitution Act, 1867. This is fatal to our ability to answer the Question. Any answer would be neither precise nor useful.

[40]         The lack of legislation is not the only impediment to answering the Question.

[41]         Both New Brunswick and Nova Scotia have legislated with respect to the dykes and marshlands in in their provinces. The Acts are not specific to the Isthmus. We were not presented with any federal legislation to assess for validity as an exercise of federal jurisdiction under s. 91 of the Constitution Act, 1867. A subject falling under s. 91 of the Constitution Act, 1867 is accordingly outside the scope of provincial legislative authority. As was discussed with counsel at the hearing, this raises the issue of the constitutionality of the provincial statutes outlined in the Appendices and others that are not before us. Counsel for Nova Scotia and the Intervenors could not say what impact the answer to the Question would have on existing legislation.

[42]         The Question also suffers from an imprecise description of the infrastructure that allegedly protects the inter-provincial transportation, trade and communication links across the Isthmus. It is only in response to a question by the Panel to Nova Scotia at the March hearing that Nova Scotia defined the infrastructure as the dykes shown on figures 1 and 2 in the Feasibility Study.

[43]         As noted earlier, in the May hearing, Nova Scotia resiled from that definition and said the Question could apply to other protective infrastructure. There is no description of the size, scope and location of the dykes at issue, which would create uncertainty about the limits of any decision we might make regarding jurisdiction over them. Again, this would render any answer to the Question imprecise.

[44]         Furthermore, the Question has political undertones. In Reference re Secession of Quebec,[30] the Supreme Court of Canada warned about courts being drawn into a political controversy:

26      Though a reference differs from the Court's usual adjudicative function, the Court should not, even in the context of a reference, entertain questions that would be inappropriate to answer. However, given the very different nature of a reference, the question of the appropriateness of answering a question should not focus on whether the dispute is formally adversarial or whether it disposes of cognizable rights. Rather, it should consider whether the dispute is appropriately addressed by a court of law. As we stated in Reference re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, at p. 545:

While there may be many reasons why a question is non‑justiciable, in this appeal the Attorney General of Canada submitted that to answer the questions would draw the Court into a political controversy and involve it in the legislative process. In exercising its discretion whether to determine a matter that is alleged to be non‑justiciable, the Court's primary concern is to retain its proper role within the constitutional framework of our democratic form of government. . . . In considering its appropriate role the Court must determine whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch. [Emphasis added.]

Thus the circumstances in which the Court may decline to answer a reference question on the basis of "non‑justiciability" include:

(i)  if to do so would take the Court beyond its own assessment of its proper role in the constitutional framework of our democratic form of government or

(ii)  if the Court could not give an answer that lies within its area of expertise: the interpretation of law.

[Emphasis in original]

[45]         The background leading up to the Question suggests it is an attempt to enlist the Court in a political dispute – that is – who is responsible to pay for the remediation of the Isthmus?

[46]         In its factum, Nova Scotia says:

26. Dialogue between Nova Scotia and the Government of Canada have led to an impasse respecting the constitutional responsibility for infrastructure which protects the interprovincial transportation, trade and communication links across the Chignecto Isthmus. Together with New Brunswick, Nova Scotia submitted an application for the federal Disaster Mitigation and Adaptation Fund (“DMAF”) in July 2023, to permit some work to commence to protect the Isthmus. However, Nova Scotia made the DMAF application under protest and maintains that legislative responsibility lies exclusively with the Parliament of Canada. The purpose of this Reference is to seek judicial clarification on this issue.

[47]         The DMAF Application is dated July 18, 2023, the day before the Governor in Council referred the Question to us. It sets out its without prejudice position as follows:

All statements as to the provinces’ mandate are without prejudice as to a legal determination of the constitutional authorities of the provincial and federal governments with respect to relevant infrastructure.[31]

[48]         Nova Scotia and New Brunswick’s without prejudice position is with respect to the “legal determination” of the “constitutional authority” of the province and federal governments. This language is obviously referring to the Question which was referred to us the next day. Both New Brunswick and Nova Scotia, in the DMAF Application, assert constitutional responsibility for payment of the cost of the work is 100% federal.[32] In their funding application, New Brunswick and Nova Scotia say the issue of who will pay is either expressly or by implication going to be determined by the Question, despite counsel for Nova Scotia emphatically stating in argument before us the Question has nothing to do with funding.

[49]         The position taken in the DMAF Application is consistent with what the Nova Scotia Premier Tim Houston said in a letter, dated March 19, 2024, to Prime Minister Mark Carney as follows:

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.

[50]         The letter also requests the federal government reinstate Nova Scotia’s DMAF funding if it is found the Isthmus is their responsibility:

Unfortunately, Nova Scotia was forced to use its Disaster Mitigation and Adaption Fund allocation exclusively toward the Isthmus because the previous Federal Government would not take responsibility for this national corridor…

Provided the Court will determine that the Isthmus is, in fact, a responsibility of the Federal Government, I ask for your confirmation that a Government led by you will reinstate our lost DMAF funding with the understanding that we will allocate the vast majority toward important commercial wharf infrastructure.

[51]         All of this suggests any opinion we give would be used as a political tactic – as was argued by Canada at the hearing. 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. We recognize our obligation to provide advice when a reference is made to this Court, however, the Governor in Council should not be using the reference process for a political purpose. The reference process is not a mechanism for achieving political ends.

[52]         The purpose of the answer being sought is unclear. Counsel for Nova Scotia said it was to “inform” conversations. We infer that to mean conversations with Canada over the funding dispute discussed above. Counsel for Nova Scotia also said it would provide “context” for any debates in Parliament should an Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada[33] (Bill S-273), be reintroduced in Parliament. Bill S-273 was passed by the Senate on June 11, 2024 and contains the following Declaration:

4 The Chignecto Isthmus Dykeland System and related works are declared to be works for the general advantage of Canada.

[53]         Bill S-273 has not been introduced in the House of Commons.

[54]         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. We fail to see how an answer to the Question would be useful in that context.

[55]         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.

[56]         Canada says this does not fall within the scope of the Question and it did not deal with this alleged obligation in its submissions. Canada also says if this issue was in play, it would have included additional materials in the Record. We agree with Canada that this was not included in the scope of the reference as drafted, and we should not be addressing it. Legislative jurisdiction and constitutional obligations are not the same. Although Nova Scotia presents this as an alternative argument, we cannot answer a question that has not been asked.

[57]         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. 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.

[58]         For all of these reasons we would decline to answer the Question.

Wood, C.J.N.S.

 

Farrar, J.A.

 

Derrick, J.A.

 

Appendix A

Appendix B