Emergency injunction extended as Windsor aboiteau case goes to court

The minister responsible for the Emergency Management Office in Nova Scotia has extended a directive that closed the aboiteau on the Avon River on the Windsor Causeway on June 1.

“I am confident that an emergency … continues to exist or may exist in the province and requires the further continuation of the state of emergency in the identified emergency area,” Secretary of State John Lohr said in an order issued Thursday.

The order will now remain in force for 14 days, until June 29, unless it is revoked in the meantime in writing by the minister.

To protect the Windsor community and protect residents in the event of a fire, the government is closing the aboiteau at the Windsor Causeway as a precautionary measure to replenish Lake Pisiquid, the EMO said in its June 1 press release.

“This aboiteau has caused Lake Pisiquid to completely dry up, posing a significant risk during this wildfire season,” Lohr said at the time. “At a time when wildfires across the province continue to spread out of control, we must take every precaution to prevent further fires, protect communities and maximize the available water supply for our continued response.”

The opposition

Calls for that county emergency order to be rescinded have followed, including a request from commercial fisherman Darren Porter for a judicial review of Lohr’s decision.

That filing, which included a motion to suspend Lohr’s warrant, made its way to the Nova Scotia Supreme Court on Thursday, where Judge Scott Norton set July 18 as the date to hear the motion to suspend.

A date for the underlying judicial review has yet to be determined.

Porter, whose primary fishing area is the mouth of the River Avon at Windsor, has paused its fishing activities to conduct monitoring studies as part of the development and application process for a new gated structure design and completion of the Highway 101 twinning project across the River Avon, reads the notice for judicial review.

Gaspereau fish die trying to spawn

Porter says water flow through the aboiteau (gates) on the causeway — downstream during outgoing tides and entering saltwater for a minimum of 10 minutes during incoming tides — is essential to the fishery he will continue to pursue.

Currently, gaspereau tries to move upstream of the Avon River causeway to spawn, but the locked gates prevent it.

Witnesses have said dozens and probably hundreds of gaspereaus perish in their failed attempt to get upstream.

The arguments for fish passage versus maintaining healthy water levels in the causeway-created Pisiquid Lake have swung back and forth since the causeway was built about 50 years ago.

Some residents and local farmers say a viable lake is good for the immediate environment.

The Federal Department of Fisheries and Oceans (DFO) issued a ministerial order in 2021 to regulate gate operations to improve fish habitat and passage.

But the federal department authorized Lohr’s directive on June 1, as wildfires spiraled out of control in several parts of Nova Scotia.

As long as it is necessary

Earlier Thursday, Lohr defended his decision to initially close the aboiteau.

“The order will be extended for as long as it is necessary for public safety,” Lohr said.

“What we have heard from Federal Secretary of Public Safety Bill Blair is that there is concern across the country that the fire situation remains extreme, that we are still in a low rainfall situation and there are still concerns are about public safety. ”

“We know how long it takes to respond when weather conditions change, so what I can say is that we will maintain the reservoir (more) as long as it is necessary for public safety,” Lohr said.

“One of the things I learned after the June 1st emergency order is actually that the Windsor reservoir made a very significant contribution to (fighting) a fire in that city in 2016. Concerns remain about dry hydrants in that area, dry hydrants that would provide water in an emergency. That reservoir has played a very important role in firefighting in the past.”

Lohr told reporters after making the June 1 emergency declaration that the fires represented a rapidly changing situation and that his department received a request on June 1 from the Windsor fire chief in charge regarding the supply of a water source for dry hydrants.

No request has been made

Windsor Fire Chief Jamie Juteau confirmed in an affidavit regarding the request for judicial review that no such request had been made.

Lohr said Thursday he may have made a mistake and that it was a concern from the fire department, not a direct request.

“I felt the pressure to do what I could as minister responsible for EMO to ensure that all possible resources were available to put out fires wherever they occurred,” Lohr said of the June 1 order.

Porter and his lawyer, Jamie Simpson, say the minister’s decision is unreasonable.

“The Minister had no reasonable indication of any current or imminent event requiring the statement to protect property or the health, safety or welfare of the residents of Windsor,” Porter noted in his filing. “In other words, the minister had no basis for concluding that an emergency exists or could exist in Windsor.”

Simpson said Thursday he was surprised the minister extended the emergency order.

“I have not seen one shred of evidence to suggest that the order is necessary or warranted,” he said.