Fisherman's quest for judicial review of Windsor aboiteau order will continue

An Annapolis Valley fisherman says he will proceed with his quest for a judicial review of the provincial government's emergency order to keep the gates closed at the aboiteau near Windsor, after a ruling by the Nova Scotia Court of Appeal determined the policy decision by Municipal Affairs and Housing Minister John Lohr can be reviewed.

The ruling also said that Darren Porter's decision to pause his commercial fishing venture on the Avon River does not automatically mean he has no standing in the matter.

"In my opinion, it was extremely just and it was exactly what we were looking for," Porter said in an interview on Wednesday.

The order to shut the gates of the aboiteau, which resulted in the refilling of Lake Pisiquid, was first issued by Lohr last June. Lohr, who is also the minister responsible for emergency management, said it was necessary to refill and maintain the lake as an additional water source while the province was confronted with historic wildfires.

Those fires never approached the Windsor area, however, and later the government said the reason for continuing to extend the emergency order every two weeks was out of concern for the limited infrastructure options to fight a fire in and around Windsor.

• Premier says emergency order to keep Lake Pisiquid filled will continue indefinitely

As long as that order remains in place, it overrides an order by the federal government to open the gates of the aboiteau each day to allowfish to pass through. The federalorder resulted in the loss of the man-made lake and spawned its own concerns among some residents and businesses in the area.

After Porter made his initial filing for a judicial review last year, he also filed for a temporary stay of Lohr's order that would have kept the aboiteau gates open. In rejecting the application, the presiding judge ruled that Lohr's order was not subject to judicial review and that Porter, as a commercial fisherman, lacked sufficient grounds required to seek standing for a judicial review.

Determining standing

In the ruling by the Court of Appeal released on Tuesday, Justice Joel Fichaud, writing on behalf of Justice Carole Beaton and Justice J. Edward Scanlan, disagreed.

"Standing depends on the circumstances of each case. There may well be circumstances when a threat to a source of livelihood will suffice for private interest standing."

Porter has fished in the area for more than 20 years, according to court documents, but paused that activity to help with research work focused on designing a replacement structure for the aboiteau as part of the effort to complete a twinning project on Highway 101 that will cross the Avon River.

It would be up to the judge who presides over the judicial review to determine if Porter has standing, Ficaud wrote.

The decision also disagreed with arguments by counsel for Lohr that "core" policy decisions by a minister are exempt from reasonableness reviews. That suggestion misinterprets a cited case from the Supreme Court of Canada, Fichaud found.

"This case does not involve second guessing the policy leading to the enactment of a statue."

Porter cites 'misuse' of legislation

Porter said it's a matter of public interest to pursue the matter, and not only out of concern for the health of the river system and the fish and other life that rely on it.

"It's also about the misuse of a piece of legislation that could be very dangerous," he said, adding that there was no justification for the province to use the Emergency Management Act in the first place.

Porter has argued that the decision to keep the gates shut is affecting fish health and he said that if Ottawa does not begin enforcing the Fisheries Act in the area soon, he'll also launch legal action in an attempt to use the legislationto protect fish and fish habitat as a private citizen.

"We're sitting here watching elvers stacked up outside the structure today," he said, using another term for baby eels.

"There's so many it's unbelievable and they can't get through. It's a complete blockage."

A date has not been set for the judicial review.