The independent board overseeing federal efforts to clean up Giant Mine says Ottawa is setting a bad example by ignoring a regulatory step any other operator in the NWT would have to take.
The Giant Mine remediation project has been operating without a water licence at the site, which is ordinarily required for any activities in the Northwest Territories that involve taking or modifying water.
In this instance, the mine clean-up team regularly takes mine water from below ground, treats it, and then discharges it into the nearby Baker Creek.
The federal government is already applying for a longer-term water licence to begin large-scale remediation work at Giant Mine. The project team claims it doesn't need an interim water licence in the meantime because another legal document gives it the right to take almost any action in the case of an environmental emergency.
Section 89 of the Mackenzie Valley Resource Management Act says a federal minister "may take any reasonable measures [to] remedy any adverse effect, in a federal area, on persons, property or the environment" if the minister feels a site has been abandoned.
The Giant Mine Oversight Board (GMOB) feels reliance on that legal clause is unconvincing, inappropriate, and undermines the regulatory process. The board has written to the Mackenzie Valley Land and Water Board, which it sees as the regulatory referee, asking for a verdict.
"The federal government is not exempt from the law," Dr Kathy Racher, chair of the oversight board, told Cabin Radio. "It should have a water licence if a water licence is required. The water licensing process is about public transparency and accountability.
"We have the federal government policing itself – and we’re not even saying that they are doing a bad job of that, but it’s the principle. It could be seen as an optics problem for them.
"Other proponents have to go through a big process to get all their permits and authorizations. From their perspective, why do they have to do all this and this other agency doesn’t? We’re trying to encourage people to use the regulatory system as a useful tool for them, the public, and the environment."
The federal government was first approached for comment on May 28, but no representative has been available for interview since.
Instead, the federal government directed us to a webpage on which it asserts its right to rely upon section 89, saying the project intends to acquire a full water licence but must satisfy various other environmental measures placed on it by the regulator first.
Dr Racher says any other operator would be forced to acquire an interim water licence in that situation, and so should the federal government.
While the oversight board has no environmental concerns regarding the federal project's work, acquiring a water licence allows for increased public accountability and transparency, she said.
"It is intended to be a regulated activity in the Northwest Territories and there is no reason why the federal government should be exempt," said Dr Racher.
"That section of the Act basically says the federal minister can take actions like this on an abandoned site to ensure there is no further harm to the environment. In our mind it is about an emergency situation.
"Maybe that was true at the beginning, when they first took over the site, but the site has been under their care since 2005 and it is hard to see it as an emergency any longer."
The oversight board expects the regulator to issue a response shortly.
Shelagh Montgomery, executive director of the Mackenzie Valley Land and Water Board, told us her board "does not have the authority to compel a proponent or individual to apply for any authorization; that is a compliance and enforcement issue that lies with federal and/or territorial inspectors.
"If an activity is occurring on the land that would trigger the need for a land use permit or water licence, an inspector has the authority to issue an order."
Meanwhile, Giant Mine's federal remediation team is holding a public session on its application for a permanent water licence to begin the full clean-up operation, which is due to commence in 2020.
The public session takes place at Yellowknife's Explorer Hotel from 7pm on Tuesday, June 5.
The regulator expects to receive the Giant Mine project team's water licence application in January 2019 and a public hearing will follow. A decision must be issued within nine months of the application being received.