Fight to reopen gates at Windsor causeway continues, despite court defeat

A recent decision from a Nova Scotia judge isn't stopping a marine conservationist and fisherman in his efforts to get the gates reopened at the Windsor causeway.

Darren Porter's lawyer filed a notice of application for a judicial review of the June 1, 2023 decision from the minister responsible for emergency management, John Lohr, to issue a declaration of state of emergency. That order ruled the gates in the aboiteau, or dike system, be closed to allow Lake Pisiquid to fill up so it could be used as a water source to fight fires.

Justice Scott C. Norton ruled against the application.

"I find that the applicant has failed to establish that he will experience irreparable harm if the stay is not granted," stated Norton in his decision which was recently posted online.

Porter admits the court process didn't go well for him.

"I've been schooled and I've been put through the system and now I understand it's more about procedure and process than it is about what's actually right and wrong," said Porter.

Porter has always fought for fish passage on the Avon River. In 2019, Canada's Fisheries Act was changed and rivers could no longer be obstructed. That eventually led to a federal ministerial order where the causeway gates were ordered to be opened up during outgoing tides and again during incoming tides to allow a minimum of 10 minutes of salt water from the Bay of Fundy to enter the lake upstream of the gates. The result saw the lake levels drop drastically.

When Lohr tabled the provincial emergency order this spring, it used the safety measure to circumvent the federal law. At the time wildfires were destroying homes and forests in parts of Nova Scotia. But there were no forest fires burning anywhere near Windsor. Over the last three months more than 500 millimetres of rain has fallen in the Windsor area and the emergency order is still in place. The federal government has refused to honour the fisheries act by allowing the provincial emergency order to override it.

"This is just dangerous and it's a misuse of an emergency order," said Porter. "The rules should be used in a just and fair way, they shouldn't be pulling trump cards like they did."

An Emergency Management Office spokesperson said Lohr was unavailable for an interview. Via email, the department repeated the same message the department has been using since the order was issued: "The decision to close the aboiteau was made in the interest of public safety and we stand by that decision. The best time to restore a freshwater reservoir is before it is needed. The order will be renewed as long as it is needed for public safety."

Ever since the Fisheries Act was changed, the lake has been a hot topic in the Windsor area. A large section of people who live in the area like it as a manmade lake, as it is now. But there is also a large group who want to see tidal water flowing under Highway 101 to allow for fish passage in the Avon River. The lake was formed when the highway and causeway were built near the mouth of the Avon River in the late 1960s.