Judge reserves decision in emergency order judicial review

A long-time fisherman and conservation advocate believes the judicial review of the provincial government's emergency order regarding Lake Pisiquid in Windsor, N.S., is about more than just the specific issue—it’s about the precedent it sets.

Darren Porter expressed concern outside the Nova Scotia Supreme Court in Halifax, stating, “I see this as a very dangerous case.” He believes the provincial government, including the premier and the minister, is exercising “unfettered power” to bypass federal directives they oppose. “It threatens democracy, in my opinion, as well as harms fish [and] fish habitat,” he added.

The legal action seeks to end a state of emergency declared by the provincial government in June 2023. John Lohr, the minister responsible for emergency management, has since renewed the order every 14 days. The emergency order mandates that the gates of the aboiteau in the Windsor causeway remain shut in order to preserve the man-made lake.

When the order was first issued, Lohr explained it was necessary to maintain the lake as a water resource to assist in fighting wildfires elsewhere in the province. However, after the fires were no longer a threat, Lohr continued renewing the order, citing the need to maintain a water source for local fire departments in case of a major fire in Windsor.

This order directly conflicted with a federal government directive requiring the aboiteau gates to open periodically to improve fish passage. As a result, the water level in the lake dropped, causing community division.

Local MLA Melissa Sheehy-Richard, who was re-elected in the recent provincial election, joined calls to restore the lake. She created a video with Premier Tim Houston for social media, urging for the lake's restoration, just before Lohr issued the emergency order.

Porter fears that if the court does not intervene, the province could use emergency orders to bypass other federal directives in the future.

During court proceedings, Jamie Simpson and Richelle Martin, the lawyers representing Porter, argued that Lohr's powers as minister are not unlimited. Simpson pointed out that even during the height of the 2023 wildfires, there was no immediate emergency in the Windsor area, making Lohr’s decisions “arbitrary and, thus, unreasonable.”

However, Jeremy Smith, the lawyer representing the province, countered that Lohr's decision was based on the ongoing wildfires and dry conditions, which could have worsened the situation. He also noted that there were two dry hydrants connected to the lake that could be used in the event of a fire.

Smith explained that refilling the lake after the initial emergency order took five days, emphasizing that such resources cannot be mobilized at the last minute. “One cannot wait until one needs this resource,” he told Justice Darlene Jamieson. “This is not a turn-on-a-dime situation.”

Smith dismissed claims that Lohr’s actions were politically motivated, calling such allegations “baseless.”

The province had previously questioned whether Porter had the standing to seek judicial review. However, after being questioned by Justice Jamieson, Smith briefly consulted with the attorney general’s office and informed the court that the province would consent to Porter having public interest standing.

Justice Jamieson has reserved her decision on the matter.