A Nova Scotia Supreme Court justice has dismissed a fisher’s bid to reverse a government state of emergency and reopen the Avon River aboiteau.
John Lohr, the minister responsible for the Office of Emergency Management, declared a state of emergency for the area around the Windsor causeway on June 1. That allowed Lohr’s government to override a 2021 order from the federal Department of Fisheries and Oceans requiring the province to keep the aboiteau under the causeway open.
When the aboiteau is open, fresh water mixes with saltwater and flows back and forth with the tides, allowing fish to swim up the Avon River. When it’s closed, fish can’t get through, and water fills up on the freshwater side, creating Lake Pisiquid.
As Joan Baxter reported back in 2020, the causeway and the aboiteau divide both the river and the community:
On one side, literally, are those determined that the aboiteau should restrict water flow in the Avon enough to maintain fresh water levels in the artificial reservoir, Lake Pisiquid, that is upstream from the causeway, and also protect it and more than 3,000 acres of agricultural land from turbulent, salt water gushing up the Avon River from the Minas Basin during high tides.
On the other side of the divide over the tidal dam are those concerned about the health of the fish species that depend on free passage in the Avon River to spawn upstream in fresh water. Among them are First Nations, environmental groups, fishermen, and a significant majority of people in the region.
Lohr’s order came as wildfires raged near Tantallon and outside Barrington. He said the empty lake was “posing a significant risk during this wildfire season.” He has renewed the order every 14 days since June 1.
Firefighters, Lohr argued, could use water from the lake to fight a wildfire in the Windsor area. Lohr claimed he’d received a request from Windsor Fire Chief Jamie Juteau to fill the lake.
Darren Porter, a fisher and researcher in the area, called bullshit.
Porter’s lawyers filed an application for judicial review of Lohr’s decision in Nova Scotia Supreme Court. They included an affidavit from Juteau saying he’d made no such request. And Porter’s lawyers filed for a stay of Lohr’s decision. They hoped to get the aboiteau opened quickly while waiting for the longer judicial review process.
Justice Scott Norton heard the stay application in Nova Scotia Supreme Court on Tuesday.
Witnesses talk about availability of water
Four witnesses took the stand for questioning from lawyers: Juteau; James Rudderham with the Department of Natural Resources; Deputy Fire Marshal Scott Burgess; and Kevin Bekkers with the Nova Scotia Department of Agriculture.
Juteau reiterated his evidence in his affidavit that he never asked the province to “reinstate” Lake Pisiquid.
Department of Justice lawyer Jeremy Smith asked Juteau about his conversations with PC Hants West MLA Melissa Sheehy-Richard. He agreed he told her on June 1 that two dry hydrants connected to Lake Pisiquid were inoperable at the time. That was after she texted and called him about it.
Rudderham is responsible for the Department of Natural Resource’s four firefighting helicopters. He told the court they can fill their buckets in as little as six feet of water, and they don’t necessarily need a lake.
Porter’s lawyer, Richelle Martin, asked Rudderham to look at a news release from last week, when Nova Scotia sent 20 firefighters to Yukon.
“At the moment, the province’s conditions and our resources are at a manageable level, so we’re now able to answer the call to help our colleagues in Yukon,” Tory Rushton, Minister of Natural Resources and Renewables, said in the release.
Rudderham agreed the fire situation in Nova Scotia is under control. He also agreed the fires in late May and early June were nowhere near Windsor.
Burgess spoke to the availability of water in the area, and a report he submitted to the fire marshal on that availability and the operability of the dry hydrants in Lake Pisiquid. He said he did not recommend the filling of the lake, just delivered facts on the availability of water.
Bekkers is an engineer responsible for opening and closing the aboiteau gates to control the flow of water back and forth. Under questioning from Martin, he said the department has not been counting fish killed since June 1.
Porter’s lawyer argues ‘irreparable harm’
Martin argued Lohr’s order was causing irreparable harm to fish stocks, and by extension, Porter. Martin argued affidavits from two biologists qualified as expert witnesses proved her point.
Martin argued firefighters don’t need water from Lake Pisiquid to fight any potential wildfires, and besides, there weren’t and still aren’t any burning in the area.
“It is imperitive that states of emergency are only invoked in real emergencies,” Martin told the court.
“And Mr. Porter is not contesting or diminishing the emergency situation that existed in parts of Nova Scotia in May through the wildfires. However, he is questioning, and we received evidence from Mr. Rudderham, that the wildfires were nowhere near Windsor when the state of emergency was declared. Yet, the state of emergency is focused specifically on the location of Lake Pisiquid in Windsor. There are serious questions here about what prompted this state of emergency specific to Windsor.”
Smith argued Porter isn’t suffering irreparable harm from the closure of the aboiteau, only financial loss, which doesn’t satisfy the legal test for an injunction like this one.
During Tuesday’s hearing, the judge ruled some of the evidence in Porter’s affidavit was inadmissible on the grounds that it was his opinion. In order to give opinion evidence, a witness has to be qualified as an expert. Porter, as a participant in the case, can’t be qualified as an expert. He found that frustrating.
“Even the province calls me an expert when they call me into their panels,” Porter told reporters.
Smith argued Porter failed to make his case.
“The applicant has totally failed to meet the evidentiary burden to show irreparable harm to himself or anyone else,” Smith told the court.
Justice Norton says no, orders Porter to pay
Ultimately, Norton agreed with Smith. The justice dismissed Porter’s application, and ordered him to pay the provincial government $1,500 in costs. Norton didn’t give his reasoning on Tuesday, reserving that for a future date.
“It’s a loss for everybody. Our community is divided. The ecosystem is damaged,” Porter said.
“We’re up against the government here. I’m a fisherman, took the government to the government’s court, and they gave us a bunch of rules to play by that sometimes feel unfair.”
Porter said he’ll gather more evidence for the judicial review. Martin pointed out that Tuesday’s ruling doesn’t presuppose that eventual decision.
“We’re still waiting for the judge’s reasons, but the result of this motion does not speak to the merits of the judicial review,” Martin told reporters.
The two sides are back in court on Aug. 21 for a hearing, potentially to set dates on the judicial review.