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In The Field

The Regulator who Refuses to Regulate

by Deirdre Green

May 15, 2024

Windsor, NS – May 15, 2024 – Early last week, two inner Bay of Fundy Atlantic salmon smolt were caught above the Avon River causeway near Windsor, Nova Scotia. The juvenile fish were discovered during a fish monitoring survey, proving this region can still produce Atlantic salmon. This is significant as the inner Bay of Fundy population of Atlantic salmon is listed as endangered under the Species at Risk Act. These juveniles are on an important journey, seeking immediate downstream passage from the freshwater system to feed at sea, which they are currently unable to complete.  


Constructed in 1970, the 700-metre causeway required 1.65 million tonnes of rock fill and provided a means to ease traffic congestion in the Windsor area and reduce the costs of maintaining the network of dykes upstream.  The aboiteau – the tidal gates at the causeway – restricted tidal flow in the Avon River resulting in shifting sediments that established a saltmarsh of internationally recognized importance downstream; while sediment continues to build up and reduce the capacity to store water upstream.  


While the two automated gates were initially operated to provide natural river conditions until the 1980s, the causeway has been a subject of concern to environmentalists since its completion. The aboiteau is operated by the Nova Scotia Department of Agriculture, and controls water levels upstream of the causeway. From the 1980s to 2020, the gates were operated to maintain a freshwater reservoir known as Lake Pisiquid, which was drawn down each spring to facilitate annual gate maintenance and to provide fish passage specifically for gaspereau based on advice from the Department of Fisheries and Oceans Canada (DFO).   


Local fishers, Indigenous groups and environmental NGO’s have long been advocating for permanently returning the Avon River to its natural state. On May 14, 2020, the first Ministerial Order – a legislative tool that prescribed the minimum acceptable gate operations to bring the current structure into compliance with the Fisheries Act – was issued by federal Fisheries Minister Bernadette Jordan. The Order required the Department of Agriculture to operate the tidal gates at the Avon in a way that would establish natural river conditions and improve fish passage. Unfortunately, this was short-lived, as the Order was not renewed by Fisheries and Oceans (DFO) and a reservoir was again maintained just a month later in June 2020.  


The temporary return to natural river conditions was a small victory for environmental advocates. However, not all were supportive and some argued that the man-made freshwater reservoir should be preserved for recreational, agricultural, and fire suppression purposes.  


Following continued pressure, Minister Jordan issued a second Ministerial Order almost a year later, in March 2021, which stated that the gates must be fully opened during outgoing tides so as not to impound water upstream of the causeway and remain open during incoming tides to allow a minimum of 10 minutes of salt water from the Bay of Fundy to enter upstream of the gates. As a result, the natural tidal ecosystem of the Avon River began to recover.  


Fast forward to June 1, 2023, when John Lohr, the minister responsible for the Office of Emergency Management, declared a State of Emergency for the area in response to wildfires burning in Halifax Regional Municipality and Shelburne County. Lohr justified the order by falsely stating that a local fire chief had urged him to order the Avon River aboiteau be closed to allow the refilling of the artificial Lake Pisiquid.  


A provincial Ministerial Directive immediately followed the state of emergency, which instructed that the causeway gates be closed to maximize water for wildfire suppression. In response, DFO let the March 2021 ministerial order expire. An order that was essential to ensure the free passage of fish and to uphold Indigenous rights on the Avon River was once again abandoned by the regulator.  


When wildfire season passed, the province amended the purpose of their emergency order from wildfires to fires in general. Since June 1, 2023, the provincial government has continued to renew the State of Emergency on a bi-weekly basis, most recently on May 2, 2024 – a flagrant misuse of the Emergency Management Act, which has prompted an active court case surrounding how the Emergency Measures Act has been used. 


The province is not authorized to obstruct fish from carrying out their life processes nor are they authorized to cause the harmful alteration, disruption, or destruction of fish habitat, yet this is exactly what is occurring, with zero enforcement action from DFO, the regulator.  


The Confederacy of Mainland Mi’kmaq, in partnership with Acadia University and local fishers, have championed ongoing surveys to monitor fish passage and the lack thereof on the Avon.  In April 2024, nine surveys were completed downstream of the causeway which resulted in the capture of 2434 gaspereau, 106 elver and 10 smelt. Nine surveys also occurred upstream of the causeway resulting in the capture of just 96 gaspereau, one elver and zero smelt, showing that fish passage remains poor to non-existent. 


As the regulator, DFO has the mandate to protect and manage Canada’s fisheries resources, ensure compliance with the Fisheries Act and the Species at Risk Act, and to prosecute offenders. However, the gates of the Avon River remain a barrier to fish passage.

Featured image
Fish monitoring surveys have been carried out at the Windsor causeway since 2017 using a two-eyed seeing approach between the Confederacy of Mainland Mi’kmaq, Acadia University, and local fisher Darren Porter. (April 2024 | Credit: Lachlan Riehl)

In response to DFO’s inaction, various organizations have joined forces and written letters in 2020, 2021 and most recently in April, 2024 in support of the reinstatement of the federal Ministerial Order. The Atlantic Salmon Federation and our partners have long understood the importance of wild rivers, free flowing water, and unimpeded fish passage. Through our Headwaters Program, we have successfully removed over 50 dams and other barriers to fish passage, reconnecting hundreds of miles of river and stream habitat to the sea.   


Project complexities including interactions with fire protection water supply, historical resources and public access needs have demanded unconventional and innovative design solutions. Communities that were once divided have come together to meet these challenges head on. The results have been impressive as native sea-run fish populations experience remarkable recovery. These projects have even improved fire protection water supply and enhanced surrounding public property, incorporating recreational amenities for all to enjoy.   


Though there are relatively few Atlantic salmon returning to the Avon River, when a population is critically low, every fish matters. Despite its many weaknesses, the Species at Risk Act affords DFO extensive enforcement powers to recover the inner Bay of Fundy salmon population. Yet, DFO’s lack of political will to enforce fish habitat protections has rendered the Species at Risk Act and Fisheries Act impotent.  


DFO has a legal duty to enforce these federal Acts, a mandate to protect and conserve fish, and a fiduciary obligation to Indigenous Peoples to uphold their constitutionally protected rights. These legal duties are not being met.  


The modernized Fisheries Act, the Wild Atlantic Salmon Conservation Policy, the upcoming Wild Atlantic Salmon Conservation Strategy, and myriad strong partners give DFO all the power and direction it needs to effectively conserve and restore wild Atlantic salmon and other important species. The fact remains that we have a regulator who refuses to regulate, and once again the fish pay the price.