Tłı̨chǫ concerned after N.W.T. rejects Wek'eezhii's initial plan for Diavik reclamation

The Tłı̨chǫ Government expressed "concern" over the N.W.T's decision not to approve an application by Diavik Diamond Mine to begin a process of progressive reclamation.

The Tłı̨chǫ raised its issue with the decision in a letter dated July 27, stating the problem is around jurisdiction. 

The letter was addressed to Shane Thompson, the minister of environment and natural resources, claiming he is ignoring the treaty by rejecting a recommendation by the Wek'èezhı̀ı Land and Water Board, the land management authority for the area created after the Tłı̨chǫ agreement. 

"With respect, it is not the role of Public Government — neither GNWT nor Canada — to unilaterally dictate the approach that the Board must take in any particular licensing proceeding. To do so undermines the clear spirit and intent of the Tłı̨chǫ Agreement and undermines the very idea of co-management," wrote Brett Wheler, a director with the Tłı̨chǫ Government department of culture and lands protection.

Wheler spoke with CBC News on Dec. 15.

"The specific questions about Diavik's water license were kind of an example of issues and questions that we have about roles and responsibility," he said.

The decision was in regards to a water licence amendment Diavik applied for as part of its progressive reclamation plan — these are reclamation tasks being completed while the mine is still operating. 

One of those aspects includes changing the state of collection ponds, which collect seepage around the mine. Diavik applied to allow these mines to drain naturally, meaning it would flow into Lac de Gras. 

This was originally scheduled to begin in the summer of 2021. In its latest public consultation document, Diavik said late summer, or early fall, 2023 is now the tentative start date.    

Public consultation

The initial application, that was rejected, included a public consultation period where the mine stated its plan, which draining the collection ponds has always been part of.

Waste entering the lake was a major topic and establishing a numerical limit was where the N.W.T. disagreed with the board and the Tłı̨chǫ.

Part of the plan involved testing the water to prepare for when the pits are flooded and reconnected with the lake. Testing and treatment is expected to take place after the flooding begins. But mixing the ponds into the lake was expected to give the mine early insight.

A transcript of a public hearing in February 2022 quotes Gord Macdonald, a Diavik representative:

"If we can decommission those ponds now, it will give us an opportunity to monitor the chemistries and monitor the — how that water mixes within Lac de Gras." 

However, in these consultations and in its filing, the territorial government expressed concerns with the process Diavik had laid out, particularly around a lack of details on the measurement of how much waste could end up in Lac de Gras. 

"I'm not sure how our minister could support a water licence amendment with unregulated discharge of waste into the environment," said Rick Walbourne, a representative with the department, according to a transcript from another public hearing in February 2022.

The disagreement centred on both sides having differing interpretation of the Waters Act. The board wrote that there were other ways to regulate and monitor the amount of waste that could enter the lake, whereas the territorial government wrote it needed to be measured in a specific manner.

In the end, the Wek'èezhı̀ı Land and Water Board recommended the minister sign the application on June 2. The board wrote it was unclear the N.W.T.'s requirement "offers any additional protection" and included other regulations in its licence.   

But on June 29, the minister did not approve the licence, citing the same issues the territorial government had found in the public consultation phase. 

The application

The Tłı̨chǫ then issued its letter to Thompson, detailing what it felt was flawed interpretation of legislation and a disregard for the Tłı̨chǫ Agreement. 

The application Diavik filed was for an amended water license, for the mine to increase its water usage from Lac de Gras. This would allow the mine to allow the collection ponds to drain, but would also allow the mine to begin flooding the pits, which has also always been its reclamation plan. 

The Wek'èezhı̀ı Land and Water Board also filed a letter to Thompson, disagreeing with the decision. On Oct. 19, the board again recommended Thompson approve the licence, but also offered an alternative: that he approve a licence that allows pit flooding, but not the collection pond drainage, which he approved. 

Now the the collection pond drainage is back to public consultation, which is expected to take around nine months.   

Wheler said the implementation of the Tłı̨chǫ Agreement is paramount, which is why that letter was issued, so the other partners have respect and support for the board so it can achieve its agreement. 

He also said that issues raised in the letter about the minister's earlier decision "are important issues that that we need to continue working on with our treaty partners."

CBC News reached out to Thompson for an interview, but one was not granted.