HALIFAX — Nova Scotia's Court of Appeal has reserved its decision on whether the federal government is solely responsible for the dike system that protects the low-lying land corridor linking Nova Scotia with New Brunswick.
Nova Scotia, New Brunswick and Prince Edward Island want the court to settle the constitutional question of whether the transportation, trade and communication links across the Chignecto Isthmus are within the exclusive legislative authority of Parliament.
The provinces maintain that the federal government should pay the entire cost of upgrading protections of the isthmus — currently estimated at $650 million — but Ottawa has agreed to pay only half of it.
Lori Ward, a federal government lawyer, argued before a three-judge panel Tuesday that the constitutional question posed by the provinces is vague and the evidence submitted does not address the key question.
“It’s not at all clear that the interprovincial rail line, the transmission lines and the fibre optic lines they say are federal undertakings … depend on the protective infrastructure,” Ward said.
She said rail lines can be raised and transmission lines can be buried, suggesting the dikes are not essential for their protection. Ward also questioned whether enough was known about “which dike protects what” on the isthmus.
The isthmus has had large dikes since 1671, when Acadian settlers arrived, and there are currently about 35 kilometres of dikes that help protect roads, railways, farms and communities.
Ward said the question of division of powers is complicated by existing provincial legislation governing such things as agriculture and the dike system on the isthmus.
“There are lots of things involved on the isthmus, and lots of them are provincial and some of them are federal,” she said, adding that courts deciding any future questions would likely find there is “concurrent jurisdiction.”
She characterized the legal case as an attempt to “enlist the court” to aid in what is really a funding dispute, saying the panel should decline to answer the provinces' question.
Jeremy Smith, a lawyer for Nova Scotia, argued that the dike system is “integral” to protecting the rail and communication lines that run through the isthmus, both of which are the responsibility of the federal government.
“It’s not a hypothetical question. It’s a question that addresses infrastructure that exists on the ground,” Smith said. “The main argument is that it’s not a thing standing on its own, that it’s integrated into things that are federal undertakings.”
At that point, Chief Justice Michael Wood asked whether the Trans-Canada Highway that crosses the isthmus is a federal undertaking. “The trade that goes over it is,” replied Smith, although he conceded that the highway itself isn’t.
Smith also argued the records submitted to the court give clear definitions of what constitutes protective infrastructure. Those records include an engineering study on the dike system across the isthmus, he said.
Wood asked Smith if it would be fair for the court to amend Nova Scotia’s question to make it clear that the infrastructure in question is the dike system, and he replied, “that would be completely fair.”
Climate researchers have warned that as sea levels rise, one severe tidal storm in the Bay of Fundy could overcome the area’s dikes, flooding communities and halting the transportation of goods and services between the provinces.
Daniel Boyle, another lawyer for Nova Scotia, said a 2012 report for the provincial and federal governments on the flood risk to the isthmus concluded that it would be prudent to plan for the long-term sustainability of the area.
“It also states … that Nova Scotia could become an island,” Boyle said, adding that the report’s reference “establishes the risk that this (legal) question seeks to address.”
The court said it would rule on the matter at a later date.
This report by The Canadian Press was first published March 11, 2025.
Keith Doucette, The Canadian Press
