Chéticamp, the Acadian community on the western edge of the Cabot Trail, is a lovely place. The village’s website nails it in describing “a traditional Acadian fishing village situated along the picturesque Cabot Trail, nestled between the majestic highlands of Cape Breton Island and the waters of the Gulf of St. Lawrence.”

But picturesque and majestic natural beauty can only go so far, it seems. Chéticamp, with a population of about 5,000 in the village and its environs wants its own representative in the Nova Scotia legislature and is going to court in pursuit of that objective.

Word last month that the Fédération Acadienne de la Nouvelle-Écosse (FANE) will go to the provincial Supreme Court to argue that the Electoral Boundaries Commission (and by extension the Nova Scotia legislature) did the people of Chéticamp wrong re-opened a political can of worms that’s been squirming around for the last decade or so.

The court challenge stems from the most recent report of the EBC. It was completed in 2018 and adopted by the legislature in 2019, establishing the make-up of the 55 (up from 51) districts to be contested in the upcoming provincial election. The new seats were added primarily to accommodate reestablishing Acadian districts in Clare, Argyle and Richmond. Chéticamp wants to be added to that list.

In coming up with that enlarged, soon-to-be-elected legislature the EBC took another step away from the concept of “voter parity” – the idea that every vote carries the same weight and is achieved by creating electoral districts with roughly the same number of voters. If the Chéticamp case succeeds, voter parity will be even more strained than it is now. Residents of the village and its environs would have about three times the voting power of the average Nova Scotia voter. This raises the question of how far to go in pursuit of “effective representation” for all Nova Scotia voters.

Ancient history

The story of Nova Scotia’s efforts to square voter parity with representation for minority communities goes back 30 years. In 1991, in a reference case brought by Saskatchewan, the Supreme Court of Canada ruled that under Section 3 of the Charter of Rights and Freedoms voter parity was not absolute, and that in order to provide “effective representation” for minority communities or large, sparsely settled districts some deviation from voter parity is justified.

The court’s ruling influenced debate around creation of Nova Scotia’s first independent Electoral Boundaries Commission (EBC). Prior to its establishment under the Donald Cameron Conservative government, MLAs themselves had determined electoral boundaries, leading to some gross deviations from voter parity. In 1988, the last pre-EBC election, the number of electors per riding had ranged from a high of 20,086 in Sackville to a low of 5,034 in Cumberland Centre. The same pattern of gerrymandering existed on the upside in a half-dozen other seats in metro Halifax and on the downside in a dozen mainly rural seats.

With the new EBC, the general guideline adopted was that the population in each district should vary by no more than 15 per cent above or below the average population per district. But the commission allowed that this measure of relative voter parity could be exceeded in exceptional districts. Based on the Supreme Court ruling, and at a time when Canada was going through turmoil around Quebec separatism and minority language rights, exceptional districts, better known as protected ridings, came to Nova Scotia.

The boundaries commission, with the backing of politicians of the day, decided that three of those ridings with significant Acadian populations – Argyle, Clare and Richmond – should be protected from strict application of the 15 per cent guideline. They also carved out what they hoped would be an African Nova Scotian riding centered on the Prestons and Cherry Brook.

As the most recent report of the EBC put it, the purpose was to “promote representation by improving the chances of African Nova Scotians seeing someone who looks like them in the legislature, and of Acadians having an MLA they can talk to in their mother tongue.”

The variance from relative voter parity in the protected ridings was unremarkable at the time, considering some of the deviance existing before the boundaries commission did its work. For example, the Cumberland Centre district had been 70 per cent below the average in 1988. Under the new regime, Richmond came in at just 35 percent below, Clare and Argyle 44 and 45 per cent below respectively, and the new riding of Preston was 50 per cent below the provincial population-per-district average.

Mixed success

The first provincial election with new boundaries took place in 1993. Over the next six elections the protected riding approach was very successful in ensuring Acadian representation, less so in getting African Nova Scotians into the legislature. Only once did a non-Acadian win one of the protected Acadian districts (Richmond in 1993). In Preston, African Nova Scotians were elected in 1993 and 1998 but were shut out thereafter, with the political parties opting not to break the streak by nominating only Black candidates in the predominantly white district,

Unfortunately, like much of rural Nova Scotia, the Acadian districts lost population, resulting in further deviation from the 25 per cent standard. As the table shows, by 2011 relative voter parity was further stretched to the benefit of the three districts, giving electors there twice the weight of the average voter.

District 1991 deviation 2011 deviation
Richmond 35% 50%
Clare 44% 53%
Argyle 45% 53%

Source: Calculations from boundary commission reports

Significantly, the French-speaking population in all three districts had fallen even faster than electoral district populations as a whole, basically transferring some of the excess voting power to non-Acadian voters in those ridings.

District % French 1991 % 2011
Richmond 28.2% 21.5%
Clare 65.9% 63.5%
Argyle 52.8% 44.9%
Combined 47.8% 41.9%

Source: Census data

The 2011 Census reported 10,845 residents of the three districts declaring French as their mother tongue, down from 14,410 in 1991. In 1991, Argyle, Clare and Richmond accounted for 42 per cent of Nova Scotians naming French as their mother tongue. In 2011, the percentage dropped to 34.9 per cent, just slightly higher than Halifax where the Francophone population increased nearly 20 per cent from 1991 to 2011. The logic of focusing efforts to promote French-speaking legislators on the three protected ridings became strained.

Political controversy

In December 2011, with a mandatory 10-year boundary review looming, NDP MLAs moved to restore a semblance of voter parity, a step that would further dilute the francophone presence in the previously protected districts. Over the objections of the Liberals and Conservatives – each party holding two of those districts – the NDP majority on a select committee of the legislature imposed terms of reference stating that no district should deviate by more than 25 per cent.

The 25 per cent deviation – up from the original 15 percent – came out of the 2002 boundary review. The commission established for that review kept the shrinking protected ridings intact, but recommended that “during the next electoral redistribution…the method of encouraging minority representation be re-evaluated.” The controversial 2011 terms of reference from the NDP-dominated select committee mentioned “Nova Scotia’s linguistic and cultural diversity, in particular, the province’s Acadian and African Nova Scotia population” but made no explicit reference to a different method of encouraging minority representation.

In a surprising development, the majority of the members of the boundaries commission – including some selected by the NDP – refused to go along with the terms of reference. The majority filed an interim report preserving the exceptional districts because they interpreted the terms of reference as merely “guides.” The attorney general disabused the committee on that point, declaring the interim report void and asking for a do-over, compliant with the terms of reference. The commission reluctantly obliged, producing a final report recommending boundaries – in effect for both the 2013 and 2017 general elections – adhering to the 25 per cent deviation standard. The Fédération Acadienne de la Nouvelle-Écosse promptly went to court.

The new boundaries reduced Acadian voting power – and Liberal held seats – but in only one instance was the composition of the legislature altered. Preston’s representation remained white (and Liberal), and in both Argyle-Barrington and Cape Breton-Richmond incumbent Acadian MLAs won by comfortable margins.

Ironically, the lone exception was in Clare-Digby. According to the 2011 census, the electoral district created in 2012 had 5,845 residents of French mother tongue, 32 per cent of the riding population. Liberal Wayne Gaudet represented Clare, while neighbouring Digby-Annapolis was held by another Liberal, Harold “Junior” Theriault. Both retired before the 2013 election and the Liberals nominated Gordon Wilson, a non-Acadian who won in 2013 with 54 per cent of the vote. He handily defeated the sole Acadian candidate, running for the Conservatives. Wilson won all but five polls, including several in the heavily francophone parts of the district and was re-elected in 2017.

Clare had been a Liberal district represented by a person of Acadian heritage for the previous 20 years, Digby for the previous 10. The ease of Wilson’s win suggests that party affiliation was more important than language. The Liberals, who expressed so much outrage at the elimination of protected ridings, would have looked less self-serving had they worked harder to nominate an Acadian candidate in what was clearly a safe Liberal riding.

Court reference

If the NDP’s goal in imposing the 25 percent maximum deviation was part of a pre-election strategy to reduce the number of protected seats held by the Liberals and Tories, it failed. The Liberals, with a 15 seat majority in the 2013 election hardly needed the single seat the merger of Clare and Digby cost them. And that loss was likely more than offset elsewhere by the general perception that the Dexter government was hostile to Acadians.

Following the NDP’s defeat in the 2013 election, the McNeil government and the Acadian federation agreed to a reference to the Nova Scotia Court of Appeal for an opinion on whether the “abolishment” of the Acadian districts was a violation of the Charter of Rights and Freedoms. It took more than two years, but early in 2017 the court delivered its opinion, finding that the attorney general’s intervention had thwarted the 2012 electoral boundaries commission in the performance of its constitutional mandate under Section 3 of the Charter.

The Court of Appeal opinion set the stage for the next act in the long-running drama that continues with a new twist – Chéticamp’s appeal to the Supreme Court. That’s an action taking place despite the efforts of two separate commissions to find the elusive balance between voter parity and effective representation. After the intermission Act Two of this report takes a closer look at the court decision and the work of those commissions, leading to the Chéticamp appeal. Stick around, it gets better.