SOMBA K'E/YELLOWKNIFE - Drilling underway at the Giant Mine site is all legal, according to an official with the Department of Indian and Northern Affairs.

Drilling underway at the Giant Mine site by Indian and Northern Affairs contractors has come under fire recently because the department does not have a land-use permit. The department insists, however, that the work does not require a permit at this time. - Andrew Livingstone/NNSL photo

Darnell McCurdy, acting director of the territory's South Mackenzie district, said it's not up to them to determine if the department needs a permit or not, but rather the Mackenzie Valley Land and Water Board, the City of Yellowknife and the territorial government.

"The act indicates we don't need a permit, under Section 98," said McCurdy.

Contractors working for Indian and Northern Affairs began drilling at the mine last June in preparation for its plan to freeze 237,000 tonnes of arsenic trioxide - a byproduct of decades of gold mining - stored underground.

First Nation and environmental groups blasted the federal department last week for proceeding with the drilling without a land-use permit.

"It's the fact, number one, the government isn't following its own rules, and secondly, the same department that is doing the drilling is also responsible for the enforcement and they don't want to do anything with it," said Kevin O'Reilly, a longtime critic of the government's cleanup plan.

"They didn't bother to apply for a permit, and in my view, they should have applied for and got a permit to do the work."

In a letter to sent to the Mackenzie Valley Land and Water Board on May 29, Indian and Northern Affairs said it would not apply for a land-use permit because the mine site falls under municipal boundaries and it would be up to the city, the territorial government and the water board to decide if the department needed one.

"If they decide for us to get a permit, then we will certainly get one," said McCurdy.

"Until that determination is made, the permits don't apply."

The Mackenzie Valley Land and Water Board is the agency responsible for handing out land-use permits, but according to Anne Umpleby, a senior regulatory officer for the board, they have "no recourse" for the current drilling.

Umpleby said the board is currently trying to determine, along with the GNWT and the city, to what extent the city will be able regulate the use of the land under Section 98 of the Resource Management Act.

Mayor Gord Van Tighem was quoted in a radio report last week saying the city has no responsibility over the drilling project.

But O'Reilly said if the city has no agreement in place to handle drilling projects, the land-use permit would still be required.

"(Section 98) says that sort of exemption really only applies when an agreement has been made between the board and the GNWT, in consultation with each local government, (that the city will) determine how they regulate the use of land and whether a permit is necessary or not," O'Reilly said. "There is no agreement like this anywhere in the Mackenzie Valley, and certainly not for Yellowknife."

O'Reilly said he wondered, if the city were to take this on, whether "they have the proper staff in place to go out and do an inspection on what's happening out there to protect their rights and interests? If they take over that responsibility, it comes with some liabilities as well."

Section 5 of the Mackenzie Valley land use regulations, an annex of the Mackenzie Valley Resource Management Act which governs the use of land and water in the region, states no person shall carry out any work without a land-use permit, inside or outside municipal boundaries that involves "the use of power-driven earth drilling machinery ... for a purpose other than the drilling of holes for building piles or utility poles or the setting of explosives."

"It seems pretty clear to me," O'Reilly said of the need for a permit.

McCurdy said the land use regulations set out are just a "guiding principle" and the Resource Management Act trumps the regulations.