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As Petitcodiac Riverkeeper chairman Michel Desjardins stood with attorney Michel Doucet on the banks of the river Thursday, he showed the calm confidence of a David staring down Goliath.
The organization, he said, is ready to proceed with legal action launched months ago against the federal and provincial governments.
“We are raising the money on our own, and pardon me the military reference, but the war chest is very healthy,” said Desjardins.
The provincial government’s announcement of its preferred option for the river’s restoration – a 280-metre bridge that will achieve 82 per cent restoration of the river 10 to 20 years after the causeway is removed – left the legal action in limbo.
But with federal Fisheries Minister Loyola Hearn reportedly stalling the file, the Riverkeeper confirmed Thursday that it will move forward with two main purposes.
Firstly, it seeks declaration from the Federal Court that the federal and provincial governments are currently in violation of the Fisheries Act as the causeway continues to block the river and fish passage.
And secondly, Petitcodiac Riverkeeper is asking the Federal Court to force the Department of Fisheries to undertake the necessary measures to correct the situation and restore fish passage.
Desjardins says despite the seeming lack of political will, he is confident the court will force Ottawa to act.
“We are still optimistic. The evidence is convincing, according to environmental impact assessments that have been made and declarations that have been made by previous governments, that the causeway contravenes article 20 of the Fisheries Act,” he says.
Article 20 regards fish passage, which is blocked on the Petitcodiac River by the causeway.
Desjardins chalks up Hearn’s silence to stalling.
“I think there is a little bit of stalling going on and we think the federal government has followed this file from day one. Nothing is new to them; they know this file inside out,” he says.
“I can’t think of anything that prevents them from declaring publicly that the causeway is contravening the Fisheries Act, except for political will.”
The Riverkeeper has already submitted its evidence to the court, and the provincial and federal governments will have 30 days to do the same. Desjardins expects a hearing to be set by early winter.
Despite the fact that the provincial government has chosen its preferred option, Desjardins said it will remain a focus of the legal action because it is still the owner of the causeway.
Asked why the Riverkeeper didn’t pursue legal action earlier, Desjardins pointed out that in this type of process, there are only certain moments when a legal action can produce real results.
For instance, it would have been inefficient to launch such an action while an EIA was being performed, he said.
Doucet says the time is right to ensure both levels of government do what they need to do to respect the law.
“What we are hearing from the federal Department of Fisheries is that they are not doing what they are obligated to do under the act, and the decision of the federal court will add weight to what the Riverkeeper has been asking for a longtime,” he says.
“Once a court declares that a minister has an obligation to do something, I don’t think a government would want to keep working in illegality once that has been declared.”
While Desjardins indicated that Petitcodiac Riverkeeper would take legal action if the federal Department of Transportation attempted to block the removal of the causeway under the Navigable Waters Act, he said Thursday that the focus is on DFO right now.
“This whole navigable waters situation is hypothetical for the moment. We aren’t going to pay too much attention to it. Our focus is on the Fisheries Act and the minister of Fisheries and Oceans.”
The Conservation Council of New Brunswick’s policy director David Coon believes the action should bring cut and dry results.
“At this point it is just a question of the law,” he said.
“It is a question of governments complying with the law, that is why the Petitcodiac Riverkeeper’s action is so important, because they are trying to enforce the rule of law.”