Judge reserves decision in emergency order judicial review

A longtime fisherman and conservationist says the judicial review of the provincial government's emergency order to maintain Lake Pisiquid in Windsor, N.S., is as much about the precedent it sets, as the issue at hand.

"I see this as a very dangerous case," Darren Porter told reporters outside Nova Scotia Supreme Court in downtown Halifax on Wednesday.

Porter said the premier, minister and provincial government appear to be exercising "unfettered power" to work around federal orders they dislike.

"It threatens democracy, in my opinion, as well as harms fish [and] fish habitat."

The legal action is an attempt to end a state of emergency the provincial government declared in June of 2023, and which John Lohr, the minister responsible for emergency management, has renewed every 14 days since.

The order says that the gates of the aboiteau in the causeway by Windsor are to remain shut to preserve the man-made lake. When the order was first issued, Lohr said it was to maintain the resource in case it was required to help fight wildfires that were burning in other parts of the province. But once those fires were no longer a threat, the minister said he was continuing to renew the order to protect a water source that local fire departments could tap in the event of a major fire in Windsor.

Lohr's order trumped an order from the federal government that said the gates of the aboiteau were to be open for a period each day to allow for better fish passage. That decision caused the level of the lake to drop and sparked division within the community.

Among the people who called for the restoration of the lake was local MLA Melissa Sheehy-Richard, who was re-elected in Tuesday's provincial election. Sheehy-Richard made a video with Premier Tim Houston for social media that called for the lake to be restored, not long before Lohr's order was issued.

Porter is worried that without intervention from the court, the province could use emergency orders to circumvent other directives from Ottawa.

In court Wednesday, Jamie Simpson and Richelle Martin, the lawyers acting for Porter, said Lohr's power as minister is not absolute. Even at the height of wildfires burning in the province in 2023, there was no indication of a pressing emergency in the Windsor area, Simpson argued.

Lohr's decisions were "arbitrary and, thus, unreasonable," he told Justice Darlene Jamieson.

But the lawyer for the province, Jeremy Smith, said Lohr's decision was based on the wildfires burning at the time, dry conditions that could have made things spread further, and the fact that there are two dry hydrants that connect to the lake that can be called upon in the event of a fire.

Smith said that when the lake was refilled following the initial emergency order, it took five days.

"One cannot wait until one needs this resource," he told Jamieson.