SOMBA K'E/YELLOWKNIFE - Mining company BHP Billiton argued in Supreme Court on Tuesday that it has no responsibility to make fish-friendly lakes in its six open pits at its mine site, even if ordered to by the Wek'eezhii Land and Water Board.

BHP Billiton's Beartooth mining pit at Ekati Diamond Mine will be filled with water upon the mine's closure. BHP has taken the Wek'eezhii Land and Water Board to court in an attempt to get an official, legal declaration that the company will not have to restock the water with fish. - NNSL file photo

BHP's lawyer Kevin O'Callaghan maintained that an agreement made between BHP and the Department of Fisheries and Oceans (DFO) in 1996 permitted the company to destroy 12 fish-inhabited lakes in the area of its Ekati diamond mine, 300 km northeast of Yellowknife, without responsibility to restore the habitat. BHP paid Fisheries and Oceans $1.5 million in lieu of that responsibility.

"We want a declaration that BHP doesn't have to reclaim fish habitat ... with that comes the responsibility that fish will survive in the long term," said O'Callaghan. "They can make any reclamation order with the pit lakes that has nothing to do with fish habitats."

Three lawyers sat on the defence - John Donihee for Wek'eezhii, Arthur Pape for the Tlicho government, and Gavin Fitch for the Independent Environmental Monitoring Agency, which was created specifically as a watchdog for BHP's diamond mine.

Pape said the court case was "premature" as the Wek'eezhii board hadn't ordered BHP to do anything yet.

"Based on prematurity, you could stay this, or you could dismiss it," Pape told Justice John Vertes.

Pape then recommend a dismissal.

Ruling in favour of BHP would open the floodgates to diamond mines pre-emptively challenging the authority of NWT land and water boards in the future, according to Pape.

"It's hard enough for these boards to get strong, know their role, do their job," he said.

Pape argued the Wek'eezhii board did, in fact, have more authority than Fisheries and Oceans.

He quoted section five of the Tlicho Land Claims and Self Government Act, which states that in an event something in the act conflicts with other Canadian legislation - such as the DFO's jurisdiction on fisheries - the act would trump the other legislation.

The act, passed in February 2005, established the Wek'eezhii Land and Water Board, and gave it authority to regulate the development and use of land and waters.

Much of Tuesday's day-long court proceeding tried to clarify the grey area of whether the board had specific jurisdiction that overruled DFO on fish habitat in the lakes. Close to 25 people observed the proceedings in court.

Fitch asserted there was no jurisdictional issue - the Wek'eezhii board and the DFO serve different purposes, he said.

"The DFO prevents disturbance of fish habitat," said Fitch. "Wek'eezhii's jurisdiction is engaged once the land is disturbed (and has to do with reclamation)."

Therefore, Fitch said, BHP's $1.5 million payment to DFO for the destruction of fish habitat has nothing to do with Wek'eezhii's possible orders to restore the area to a natural state, which may include having lakes that are inhabited by fish.

O'Callaghan argued that the agreement between BHP and the DFO, and the payment, settled all matters to do specifically with fish habitat, and the responsibility did not lay on BHP to turn the pits into fish-filled lakes.

Vertes said he would make a decision as soon as possible.