Mine advocates reject that meeting with N.W.T. gov't is 'regulatory capture'

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Tom Hoefer, executive director of the N.W.T. and Nunavut Chamber of Mines, said the meetings with two territorial ministers were to advise them of the pending judicial review to seek clarity on how land and water boards should interpret land use regulations. (Hilary Bird/CBC  - image credit)
Tom Hoefer, executive director of the N.W.T. and Nunavut Chamber of Mines, said the meetings with two territorial ministers were to advise them of the pending judicial review to seek clarity on how land and water boards should interpret land use regulations. (Hilary Bird/CBC - image credit)

Ahead of a court case that will decide whether land use permits can be extended more than once, the N.W.T. and Nunavut Chamber of Mines executive director said it is conspiratorial to suggest that bi-weekly meetings with the N.W.T.'s Industry Department demonstrate regulatory capture.

During the pandemic, the chamber met with Industry Department officials about economic recovery, but MLA Kevin O'Reilly said access to information documents show the chamber lobbied N.W.T. government officials before filing a judicial review over permit extension limits.

A court case, which will be heard on Tuesday, challenges an April 2020 decision by the Mackenzie Valley Land and Water Board (MVLWB) that states land use permits cannot be extended more than once.

O'Reilly described Industry Minister Caroline Wawzonek as "evasive" when he questioned her about the nature of meetings between two territorial ministers the week before the chamber made its court filing, a piece of information he gleaned from a renewed access to information request.

Mario De Ciccio/Radio-Canada
Mario De Ciccio/Radio-Canada

Land use permits were discussed for months internally between the Industry Department and the chamber, which "demonstrates that at least the staff within the department have been captured, from a regulatory perspective."

Tom Hoefer, the executive director of the N.W.T. and Nunavut Chamber of Mines, said their meeting with the minister was to alert them of their plans to challenge the MVLWB decision that land use permits may not be extended more than once.

Hoefer said the chamber is not "advocating a rubber stamping exercise" and that because the board disagreed, they need the courts to clarify.

Permit extensions are currently limited to five years, with the option to apply for a two year extension.

The chamber wrote in a May 26 news release that "despite the efforts of land and water boards, small exploration companies continue both to struggle with the application process and to meet its requirements" — a problem the chamber said could slow exploration in the territory.

The chamber views extending land use permits more than once would be appropriate if a project has not "materially changed and community engagement is maintained."

"We respect that this is a process not to be taken lightly, and is the first time we have taken such action. Thus, we updated the [Industry Minister] with her responsibility for mineral resource development, as we felt she should be aware of what we were doing, and why," Hoefer wrote in an email.

Three companies wrote to the board supporting extending permit limits, including NorZinc, which runs the Prairie Creek Mine near Nahanni Butte, Fortune Minerals, which has a mineral interest on Tłı̨chǫ lands near Whatì, and De Beers.

In correspondence to the board in January 2020, NorZinc President Don MacDonald wrote that it is "illogical" that water licenses can be issued for up to 25 years, and land use permits should be given a similar limit — not the seven years that is currently possible.

Industry Department will 'remain neutral'

Industry Minister Caroline Wawzonek said in the Legislative Assembly on Dec. 7 that the Northwest Territories government will "remain neutral" and that improved access to leases is a longstanding subject of the chamber's advocacy.

However, access to information documents tabled this month show Industry Department officials stating "we fought hard and we got nowhere" when they came forward with a N.W.T. government position on increasing the maximum term of land use permits from five years to 25 years under the land use regulations.

Redacted meeting minutes dated June 2020 state two chamber members would approach the land and water board on licensing from the Industry perspective. John Ketchum, assistant deputy minister of Industry, Tourism and Investment and Menzie McEachern, director of Mineral and Petroleum Resources agreed to approach the board from the N.W.T. government's perspective.

In September 2020, the chamber sought guidance from Crown Indigenous Relations and Northern Affairs Canada (CIRNAC). CIRNAC replied that it would be reasonable for land and water boards to consider multiple extensions.

Two First Nations oppose limit expansions

John Van Dusen/CBC News
John Van Dusen/CBC News

In November 2020, the MVLWB invited comments on interpreting Mackenzie Valley Land Use Regulations.

Both Acho Dene Koe First Nation and the Tłıchǫ Government wrote individual submissions to the land and water board stating that allowing for multiple permit extensions could impact treaty rights and result in less regulatory oversight and engagement.

In January 2021 the Tłıchǫ Government said when Canada "unilaterally" gave its interpretation of the Mackenzie Valley Resource Management Act, treaty legislation co-developed with the Tłıchǫ, it sidestepped modern treaty obligations to consult the Tłı̨chǫ, wrote Tammy Steinwand-Deschambeault, director of Culture and Lands Protection for the Tłı̨chǫ Government.

Introducing multiple extensions would create greater delays for permit extensions, which are currently a "regulatory non-event," she wrote.

The Tłı̨chǫ Government, now an intervenor in the court case, only learned of the discussion between the chamber, the board and Canada about permits after CIRNAC responded to the chamber.

Acho Dene Koe also wrote to the board that while COVID-19 has affected industry, those impacts are "temporary" and should not be used to reduce regulatory oversight of mining.

The First Nation wrote permit holders could selectively extend permits rather than go through a full renewal, delaying regulatory oversight and rights holders' ability to participate in the process. It also states that its Section 35 rights, to be consulted and accommodated, have not been met.

The next hearing on whether permits can be extended more than once will enter a prehearing meeting on Tuesday, with the possibility of a full hearing in May 2022.

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