The governments of Canada, New Brunswick and Prince Edward Island will be allowed to speak at the Nova Scotia Court of Appeal case on who must pay to repair the Chignecto Isthmus. But independent MLA Elizabeth Smith-McCrossin has to sit the matter out.
This summer, the Nova Scotia government asked the court to rule on a constitutional question: who must pay to shore up infrastructure on the isthmus, which is vulnerable to catastrophic flooding?
The work is estimated to cost hundreds of millions of dollars. A 2022 report commissioned by Nova Scotia, New Brunswick and Ottawa offered three blueprints ranging in price from $189 million to $300 million. More recently, New Brunswick received an estimate that suggests the costs could reach $650 million.
The governments of Nova Scotia and New Brunswick want Ottawa to foot the entire bill, while Ottawa wants a cost-sharing deal.
The other Maritime provinces, Ottawa and Smith-McCrossin — whose riding, Cumberland, includes the Isthmus — all applied for intervenor status in the case. Justice David Farrar considered their bids at a hearing Thursday morning.
Before making a ruling, Farrar asked the legal team for Nova Scotia's attorney general for its opinion on each of the possible intervenors.
Other parties rejected MLA's application
Lawyer Jeremy Smith said the province consented to the intervention of each of the other governments, but didn't think Smith-McCrossin's position on the matter was distinct from that of the provincial governments.
Lawyers for Ottawa, New Brunswick and P.E.I. each echoed Smith, saying they doubted Smith-McCrossin's presence as an intervenor would add to the proceedings.
Independent Nova Scotia MLA for Cumberland, Elizabeth Smith-McCrossin, standing outside chambers for the Nova Scotia Court of Appeal on Thursday, Sept. 21, 2023. (Galen McRae/CBC)
At the end of the brief hearing, Farrar decided to let the three governments join the case as intervenors, but he rejected Smith-McCrossin's application.
"It's not necessary to make the determination that this court needs to make on the constitutional question," he said of Smith-McCrossin's participation in the case.
Worried about delays
Smith-McCrossin said she was disappointed but respected the decision.
"The people that live on or near the Chignecto Isthmus have very real concerns: flooding, the risk to their lives and property. And I wanted to ensure that the people there are truly represented in this case," she said in an interview following the hearing.
The Chignecto Isthmus connects Nova Scotia with the rest of Canada. (CBC News)
She said her constituents are worried the court proceedings could drag on, delaying the start of work to repair the centuries-old dikes that hold back the ocean tides.
"We can't afford any delays in getting the dikes raised and getting the work done. This work should have started years ago, to be honest."
The critical transportation corridor is becoming increasingly vulnerable to flooding as the condition of the aging dikes continues to decline, and extreme weather events increase in frequency due to climate change.
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