Emergency Windsor aboiteau order renewed, issue goes to court in March

The state of emergency first declared last June to maximize the water supply at Lake Pisiquid near Windsor has again been renewed by the Nova Scotia government.

Cabinet, on the recommendation of Municipal Affairs Minister John Lohr, renewed the state of emergency under the Emergency Act on Dec. 28, to remain in effect until 8 p.m. on Jan. 11.

“Having an available supply of water important for fire suppression is a cause for concern from a public safety perspective,” Heather Fairbairn, spokeswoman for the provincial Emergency Management Office, said in an emailed response.

“As we have said in the past, there are two dry hydrants that feed from Lake Pisiquid that are unusable when the lake is dry; and while area fire departments can use municipal water sources for some fire suppression efforts, these resources may be inadequate for large-scale or multiple fires. As such, the order will be renewed as long as it is needed for public safety.”

The order, first directed on June 1, effectively mandates closing the Avon River aboiteau gate at the Windsor Causeway. The precautionary aboiteau closing fills and maintains the man-made Lake Pisiquid.

Premier Tim Houston said in July that even though the risk of forest fires might have subsided, it didn’t make sense to drain and fill the lake every time the risk changes. 

“The lake will remain full because that’s in the interest of public safety,” he said at the time.

Judicial review

Everyone did not agree. 

Calls for a reversal of that provincial emergency order ensued last summer, including an application for a judicial review of Lohr’s decision by commercial fisherman Darren Porter.

That application, which included a motion to stay Lohr’s order, made its way to the Supreme Court of Nova Scotia.

Jamie Simpson, a lawyer representing Porter, said this week that the judicial review challenged the minister’s decision to issue the order and it was accompanied by a request for a stay of the decision, an interim injunction until the review was heard.

“We were unsuccessful in the request for the stay and in the decision about the stay, Justice Scott Norton ruled that the underlying issue was not something that the court really is able to rule on, which was shocking,” Simpson said.

“We felt that Justice Norton went too far in ruling that the underlying issue was not justiciable.”

Simpson said that ruling would have made it difficult to go ahead with a judicial review.

“We appealed that portion of the stay decision to the Court of Appeal and that hearing is going ahead on March 14,” Simpson said. “The impact of all this has been a significant delay to the underlying judicial review.”

Porter, whose primary fishing zone is the Avon River estuary near Windsor, in the summer paused his fishing activities to carry out monitoring studies as part of the development of and application process for a new gated structure design and completion of the Highway 101 twinning project across the Avon River, the notice for judicial review reads.

Gaspereau spawning

Porter, who intended to resume commercial fishing when he completed his monitoring work, said the flow of water through the aboiteau (gates) at the causeway – down river during outgoing tides and up river for a minimum of 10 minutes of saltwater entry during incoming tides – is essential for the fishery he pursues.
Gaspereau trying to move upstream of the Avon River causeway to spawn in the summer were stopped by the closed gates and witnesses had said dozens, and more likely hundreds, of gaspereau had perished in their aborted attempt to get upstream.

The arguments for fish passage versus maintaining a healthy water level in the causeway-created Lake Pisiquid have been bandied back and forth since the causeway was constructed about 50 years ago.

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

But the federal department conceded authority to Lohr’s directive on June 1 while wildfires were burning out of control in several areas of Nova Scotia.

Request, no request

Lohr told media after making the June 1 emergency declaration that the fires presented a fast-moving situation and that his department had received a request that day from the Windsor fire chief related to supplying a source of water for dry hydrants.

Windsor Fire Chief Jamie Juteau confirmed in an affidavit related to the judicial review application that no such request was made.

“With respect to the State of Emergency declared on June 1, 2023, by Minister John Lohr and the accompanying ministerial directive, I did not make any request to Minister Lohr or his department or anyone else for water resources in Lake Pisiquid or to ‘reinstate’ Lake Pisiquid,” Juteau testified.

The issue generated a back-and-forth between Houston and Abraham Zebian, elected the first mayor of the amalgamated municipality that saw the Municipality of the District of West Hants merge with the town of Windsor on April 1, 2020.

“Certainly their mayor has had a lot to say on this,” Houston said in the summer. “Where was the mayor two years ago? I think the mayor should be aware of that fire that happened in 2016. Certainly, I was made aware of it, and the impact and the necessity for the supply of water that that lake provides. I won’t look away from that. There might be others out there willing to look away from it.”

Zebian said at the time that it was disappointing that the premier had chosen to deflect his responsibility onto others.

“I’m really disappointed that it’s taken Mr. Houston two years to finally pay attention to my community’s struggles in regards to the Avon River and the Highway 101 twinning project,” Zebian said. “It’s been well articulated by both our council and our residents.”

Zebian said he couldn’t speak to the provincial government’s motivations and why they had chosen to take action only this past summer rather than listening to the concerns of the community from two years back.

Reached Thursday, Zebian replied by email that his council respects “the roles and responsibilities that Minister Lohr holds and that if he feels, with the information that he possesses, that the emergency order is needed, then we trust the decision of the minister.”