1 WEK'EEZHII VALLEY LAND 2 AND WATER BOARD 3 4 PUBLIC HEARING FOR 5 DIAVIK DIAMOND MINES INC. 6 WATER LICENCE RENEWAL 7 8 9 10 11 Panel Members: 12 Facilitator Violet Camsell- 13 Blondin 14 Member Alfonz Nitsiza 15 Member Joyce Rabesca 16 Member Joseph Judas 17 18 19 20 21 HELD AT: 22 23 Behchoko, NT 24 November 10th, 2006 25 Day 4 of 4

1 APPEARANCES 2 John Donihee ) Board Counsel 3 4 Mark Anderson (Np) ) Diavik Diamond Mines 5 Gord Macdonald ) Inc. 6 Jeff Reinson ) 7 Scott Wytrychowski ) 8 Brad Armstrong ) Counsel 9 Melanie Smith ) Counsel 10 11 David Livingstone ) INAC 12 Kathy Racher ) 13 Barry Zajdlik ) 14 Nathan Richea ) 15 Scott Duke ) Counsel 16 Carla Conkin ) Counsel 17 18 Doug Crossley ) Environmental 19 John McCullum ) Monitoring Advisory 20 ) Board 21 Bill McElhanney ) Counsel 22 23 Dave Balint ) Fisheries and Oceans 24 25

1 APPEARANCES (con't) 2 Valerie Meeres ) North Slave Metis 3 Sheryl Grieve ) Association 4 5 Don MacDonald ) Tlicho Lands 6 Tony Pearse ) Protection 7 Peri Mehling ) Department 8 Arthur Pape ) Counsel 9 Bertha Rabesca Zoe ) Counsel 10 11 Chief Addie Jonasson ) Lutsel K'e Dene 12 Monica Krieger ) First Nation 13 Charlie Catholique ) 14 Albert Boucher ) 15 16 Rachel Crapeau ) Yellowknives Dene 17 Lou Azzolini ) First Nation 18 Greg Empson ) 19 20 Anne Wilson ) Environment Canada 21 Steve Harbicht ) 22 Dave Fox ) 23 24 Paul Boucer ) Deninu Kue 25 Edward McKay ) First Nation

1 TABLE OF CONTENTS 2 Page No. 3 List of Exhibits 5 4 List of Undertakings 6 5 6 Comments by Grand Chief George MacKenzie 7 7 8 Question period re Tlicho Government 11 9 10 Presentation by North Slave Metis Alliance 104 11 Question period 124 12 13 Presentation by Lutsel K'e First Nation 128 14 Questions from the Public 165 15 16 Closing comments by EMAB 166 17 Closing comments by INAC 175 18 Closing comments by DFO 183 19 Closing comments by Environment Canada 186 20 Closing comments by Tlicho Government 191 21 Closing comments by Lutsel K'e First Nation 209 22 Closing comments by Yellowknives Dene First Nation 213 23 Closing comments by Diavik 224 24 25 Reporter's Certificate 232

1 LIST OF EXHIBITS 2 Number Description Page No. 3 1 Development of Effluent Quality 4 Criteria Document. 69 5 2 Evaluation of the Application for 6 Amendment of Water Licence N7L21645 69 7 3 Excerpts from the Snap Lake Diamond 8 Project Water Licencing Proceeding. 69 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 LIST OF UNDERTAKINGS 2 Number Description Page No. 3 4 Ms. Grieve to conduct a review 4 of their files and correspond with 5 the Board with a copy to Diavik, just 6 indicating when it was that, in their 7 view, their claim for compensation 8 was advanced. 127 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon resuming at 9:05 a.m. 2 3 THE CHAIRPERSON: We'll call this Hearing 4 to order. We have an Elder, Francis Simpson, that's 5 going to open this morning with a prayer. 6 7 (OPENING PRAYER) 8 9 THE CHAIRPERSON: Yesterday we had the 10 Tlicho Government make a presentation and then we 11 adjourned for the evening. 12 This morning we have -- we begin with 13 questioning of the Tlicho Government. First by Diavik 14 and then we'll go down the list. So, Diavik, you're 15 first to ask questions of the Tlicho Government. 16 MR. GORD MACDONALD: Good morning, Madam 17 Chair. Thanks very much. I would like to start with 18 Brad Armstrong, questions please 19 MR. ARTHUR PAPE: Madam Chairman, excuse 20 me, I apologize to Mr. MacDonald for interrupting. Madam 21 Chairman, if -- if I could -- if I could interrupt for a 22 moment. It's Arthur Pape speaking. 23 Grand Chief George MacKenzie has asked if 24 he could make a couple of sentences to summarize his 25 evidence from last night before the cross-examination so

1 that he can make sure that the Board -- that he has 2 clearly told the Board what the Tlicho Government is 3 asking the Board to do. 4 5 (THROUGH INTERPRETER INTO ENGLISH) 6 7 GRAND CHIEF GEORGE MACKENZIE: Yes, thank 8 you and good morning. Yes, and I know that some of the 9 Chiefs -- that some of the Tlicho Chiefs are going to 10 show their respect for the late Fred Erasmus for the 11 burial today. People -- Fred Erasmus is going to be 12 buried today so -- so we have show the respect as a 13 Tlicho citizen. 14 Not only -- not only the Tlicho but all 15 the Aboriginal people. This is what we usually do to 16 show respect for the awakening as well as you might -- 17 you may think why the -- why the Chiefs aren't here. 18 They're all in Yellowknife at this time to have the -- 19 they're going be at the -- at the burial for the late 20 Fred Erasmus. 21 But I am going to say things in my 22 language. Like yesterday the kind of things that we have 23 talked about. Thank you. I know that you have listened, 24 therefore I'd like to thank you -- two (2) hours and it 25 was well over two (2) hours and I know that we -- we want

1 you to think about the kind of things that we have told. 2 At that time we are pleading to one 3 another and sometime we want to listen -- listen to one 4 another. This is what we think. You know, we're not 5 saying things in the very harsh way. This is not the 6 kind of things -- we did not say. 7 We are pleading to each other. What I'm 8 saying is that the -- that Diavik -- that Diavik are 9 asking for the water licence. The Board -- the 10 Wek'eezhii Land and Water Board, I am speaking to you. 11 You're the Board members as well. 12 Everything is under you. You're the ones that are going 13 to be making the big decision. I know that you are 14 listening and I know that -- I know that you guys were 15 listening for the last few days. 16 Well what we're saying is as a Tlicho 17 Government, what we're talking about the water licence. 18 We are not -- we are not saying no, but there are three 19 (3) things that they have talked about. I want three (3) 20 things to be fixed. If it is not fixed, then we will not 21 talk about the water licence. 22 We want our -- our environment, our water 23 to be fixed -- to be taken care of and things -- so 24 things -- the things that they're supposed to do, if they 25 do it, by all means we will support the water licence.

1 But -- but today the way the things are -- 2 but you know come some of the mines when we -- when we 3 talk about the -- of how some of our environment is going 4 to be -- be protected as an Aboriginal, how will the land 5 -- how will the land -- well, the only thing that can 6 help us at this time is the water licence. 7 Anytime they have a mine if -- if they are 8 asking for a water licence, are they working to the kind 9 of things that they have talked on? Are they keeping up 10 to their words? Then if they -- if they are supposed to 11 do the kind of things that they're supposed to be doing 12 prior to getting the water licence, then we'll -- by all 13 means we'll go. 14 There are three (3) things. I want to say 15 this. There are three (3) things that we are concerned 16 about and worried about. There are three (3) things. If 17 you do fix it and follow that, then we will -- that's 18 what we're basically saying. 19 So -- so at this time we are not saying 20 yes. You guys -- we -- we are not basically saying in 21 other words, yes, go ahead with the water licence but 22 there are three (3) things that you have to follow. 23 I'm talking to the Board Members. Before 24 you issue the water licence to the Diavik Diamond Mine 25 make sure there are three (3) things that we have talked

1 about. Make sure they do it before a water licence is 2 issued. Thank you very much. 3 4 (SPOKEN IN ENGLISH) 5 6 THE CHAIRPERSON: Okay. We've heard from 7 the Grand Chief. Diavik, you're the first party to ask 8 questions of Tlicho Government. Massi. 9 10 QUESTIONS BY DIAVIK: 11 MR. BRAD ARMSTRONG: Brad Armstrong. 12 Thank you, Madam Chair. 13 Mr. Pearse, my first questions are for 14 you. I would like to try and put in perspective some of 15 the issues which you have raised about the status of a 16 number of plans, et cetera, under the licence. 17 And I'd like to begin by asking you to 18 make a distinction between operational performance of 19 this company, that is complying with effluent quality 20 criteria, et cetera, and the development of these plans. 21 And I'm going to ask you to confirm, Mr. 22 Pearse, that from -- from an operational point of view 23 this company built this mine without significant 24 environmental difficulties and in fact is operating the 25 mine in compliance with the operational requirements such

1 as discharge limits in such a manner that there is no 2 reason to believe there is any significant impact on the 3 environment. I'm going to ask you to agree with that 4 proposition. 5 MR. TONY PEARSE: I would largely agree 6 with that. One (1) of the things that's come out with 7 respect to the Aquatic Effects Monitoring Program is the 8 fact that the program really can't tell us whether or not 9 there are significant changes or not happening in the 10 lake. 11 There's a big uncertainty about that but I 12 think to say that the company has operated its -- its 13 mine in an environmentally safe way as far as we know 14 now, I think that's a reasonable suggestion. 15 MR. BRAD ARMSTRONG: Thank you, Mr. 16 Pearse. And I'm going to come back to the AEMP and what 17 it is able to -- to confirm and I will come back to that 18 to confirm that it is able to tell us that there are no 19 significant environmental effects and others have said 20 that. 21 But I just want to confirm now that in 22 your submissions, a very lengthy submission with 23 chronologies and history, et cetera, that you have not 24 brought before the Board any evidence suggesting any 25 significant environmental harm caused by this mine, have

1 you? 2 MR. TONY PEARSE: Tony Pearse. That's 3 correct. 4 MR. BRAD ARMSTRONG: I want -- Brad 5 Armstrong. Thank you, Mr. Pearse. 6 I'm going to turn to the ammonia -- the 7 ammonia management plan. And just to put that into 8 context, because I know you've raised a concern about the 9 plan not yet being approved and the EQC not being set, 10 but I want to ask you to agree with this proposition. 11 That in fact when the company applied in 12 2003 to amend the licence, you will recall that the 13 application was to amend -- to set a -- a limit on un- 14 ionized ammonia. And you'll recall that in that 15 application the company proposed not just that limit but 16 proposed that -- that levels of ammonia be regulated 17 through the review and approval of management plans. 18 Do you recall that part of the application 19 at that time? 20 21 (BRIEF PAUSE) 22 23 MR. TONY PEARSE: Tony Pearse. No, I 24 don't -- I don't have a recollection of that. That may 25 be so, I just don't recall.

1 MR. BRAD ARMSTRONG: All right. I'm not 2 going to just test your memory on that, you might take my 3 word for that. But the -- I'll put this proposition to 4 you. 5 That from that time, in 2003, when the 6 company recognized that it would have to deal with higher 7 levels of ammonia than had been predicted, from that time 8 and since 2003, the company has had in place quite 9 effective measures for managing ammonia levels at the 10 site. 11 Do you agree with that proposition? 12 13 (BRIEF PAUSE) 14 15 MR. TONY PEARSE: Tony Pearse. I'm not 16 aware of any measures, of the company doing anything 17 differently during that time. It may be that they did 18 but I -- I don't know about it. 19 MR. BRAD ARMSTRONG: Brad Armstrong. 20 Thank you, Mr. Pearse. That -- that may be your -- your 21 lack of awareness of that may be part of the difficulties 22 you're -- you're having with the ammonia management plan. 23 One of the things you have heard in this 24 Hearing, though, is that from 2003 up until current date 25 the actual levels of ammonia in the effluent have been

1 managed by the company through various measures so that 2 they average about 2.2 milligrams per litre. 3 Do you remember hearing that evidence? 4 MR. TONY PEARSE: Tony Pearse. Yes. 5 MR. BRAD ARMSTRONG: And by -- that's 6 what I mean -- sorry. Brad Armstrong, Madam Chair. 7 Mr. Pearse, that's what I mean by the 8 context of these plans being that the company has, in 9 fact, and indicated in 2003 when the issue first arose, 10 that it was at that time implementing plans to manage 11 ammonia. And in fact I -- I'm suggesting to you that -- 12 that managing the ammonia to a two point two (2.2) 13 average really does indicate that a number of effective 14 measures have been in place over that period of time, and 15 ask that you agree with that. 16 17 (BRIEF PAUSE) 18 19 MR. TONY PEARSE: Tony Pearse. I'm -- I 20 guess I'm not aware that there is -- that the results, 21 the levels that have -- have been discharged are in fact 22 the result of any particular management techniques other 23 than beyond what the company was doing before. And it 24 might be helpful if you could identify some of those 25 measures and -- that have been implemented to help manage

1 the ammonia. 2 MR. BRAD ARMSTRONG: Brad Armstrong. 3 Madam Chair, I'm -- I'm not going to outline those for 4 Mr. Pearse. They are on the record. 5 And I'm really pointing out to you, Mr. 6 Pearse, that in your chronology of events respecting the 7 ammonia plan there is a contextual background which 8 appears to be missing, and maybe it's because you didn't 9 realize that the company was actually manage ammonia 10 levels to -- to these levels at the time you put the 11 chronology together. 12 Is that -- is that true, you didn't 13 realize what levels the company was managing to? 14 MR. TONY PEARSE: Tony Pearse. No, that 15 -- that's not true. I think that the chronology that was 16 put together in our intervention is -- it's all material 17 that's on the record and it -- it stands on its face. I 18 don't -- I don't know that -- that the -- the context 19 would change it. 20 MR. BRAD ARMSTRONG: Brad Armstrong. No, 21 I was just really not looking at what's on the record in 22 your chronology. I'm looking at what's not in your 23 chronology, Mr. Pearse, and asking you if you -- if you 24 fully understood the context in -- within which these 25 plans were being developed, the context being that

1 ammonia levels have been very well managed at the site. 2 And it sounds like you didn't really fully 3 understand that context when you put your chronology 4 together; is that true? 5 6 (BRIEF PAUSE) 7 8 MR. DON MACDONALD: This is Don MacDonald 9 representing the Tlicho Government. 10 As part of the Record of Agreement there 11 was a requirement for developing an ammonia discussion 12 paper. That discussion paper was intended to identify 13 the specific management approaches that would be used by 14 Diavik in the future that would help them to minimize the 15 loadings of ammonia to the environment. 16 And there was a series of steps that were 17 required. One (1) was explosives management, looking at 18 explosives management and looking at ways to improve 19 that. 20 A second step that was required was 21 looking at the management of water in the pit and looking 22 at ways of potentially improving the way that we're 23 managing water in the pit such that we could achieve 24 lower levels of discharge to the environment. 25 And the third part of that discussion

1 paper was to look at both active and passive treatment 2 technologies that could allow us once again reduce 3 ammonia discharges to the environment. 4 And finally, the goal of that plan or that 5 discussion paper that was to be ultimately implemented 6 into a plan or developed into a plan was to integrate a 7 series of management options such that we could reduce 8 the loadings to the lake. 9 I -- what I'm -- what I'm hearing you say 10 this morning is that over the -- the course of the 11 operation of the mine the levels that have been 12 discharged to the environment have averaged two point two 13 (2.2). They've been increasing over that time and the 14 fact that -- the fact is that the company has recognized 15 that ammonia management is a problem. 16 They recognized that in 2003 and 2004 17 through the application for amendment to the effluent 18 quality criteria. That wouldn't have happened if you 19 were -- if the company was confident that we were going 20 to achieve the existing effluent quality criteria. 21 So I think what the whole discussion has 22 been here over the last couple of days is that we haven't 23 made the progress on the ammonia discussion paper that 24 would allow us to identify what those options or 25 combinations of options would be that would allow us to

1 minimize levels of releases of ammonia to the lake. 2 So that's what I think we're talking 3 about. 4 MR. BRAD ARMSTRONG: Brad Armstrong, 5 Madam, Chair. Thank you, Dr. MacDonald. 6 The -- the point I am making to you is -- 7 I'm sorry, Mr. MacDonald. The point I'm making to you 8 and it appears that -- that you -- you view these ammonia 9 management measures as measures to be implemented in the 10 future and what I'm pointing out to you is that in the 11 2003 amendment application that the company pointed out 12 that it had already underway plans for managing ammonia 13 and in fact the record shows over the period 2003 and 14 2006 a -- a very good effort at managing ammonia. 15 And the chronology which you've presented 16 before the Board here seems to be predicated on the basis 17 that until the Ammonia Management Plan is approved there 18 are no ammonia management measures in place. 19 So I'm -- I'm suggesting to you you're 20 acting under as misunderstanding about the fact that 21 there are ammonia management measures in place now. 22 MR. DON MACDONALD: This is Don Macdonald 23 representing the Tlicho Government and I appreciate the 24 PhD that you've awarded me honourarily, but I actually 25 don't have one.

1 I think that we all know that there is a 2 management system in place for this mine. What we are 3 discussing is if -- if those management procedures that 4 you're describing as being in place were sufficient, I 5 don't think we would be talking about the issues that 6 we're talking about today. 7 Clearly, the fact that there was a need to 8 request an amendment from the Board for the effluent 9 quality criteria for ammonia illustrates that those 10 management actions, whatever it is that you're -- you're 11 referring to were not sufficient and that there was a 12 need for additional measures to manage the discharges of 13 ammonia to Lac de Gras. 14 MR. BRAD ARMSTRONG: Brad Armstrong. 15 Thank you, Mr. MacDonald. I'm going to come back to you 16 on the issue of what is sufficient because I'm going to 17 come back to you with a proposition that the levels are 18 being managed well below any reasonable threshold for 19 environmental protection. I'll come back to you on that 20 point. 21 I want to turn to your -- your slide 22 number 16 and you don't need to put it up. But your 23 slide number 16 and I think it might have been Mr. 24 MacDonald presenting this. 25 It says: results show that the ammonia

1 discussion paper is still unacceptable. Do you see that 2 slide? 3 MR. DON MACDONALD: Don MacDonald, 4 representing the Tlicho Government. Yes, I do. 5 MR. BRAD ARMSTRONG: Okay. And you -- 6 and in your presentation at page -- sorry, in your 7 written submission at page 30 -- I'll let you turn to 8 that. Sorry, Madam Chair, it's Brad Armstrong. 9 In -- in your position paper -- your 10 submission at page 30, first paragraph under Ammonia 11 Management Plan, it says; 12 "On September 1, 2006 and despite a 13 deficient revised discussion paper and 14 addendum the Wek'eezhii Land and Water 15 Board gave direction to Diavik to 16 proceed with the preparation of an 17 ammonia management plan." 18 That sentence seems rather critical of the 19 Board and your slide says that the discussion paper is 20 unacceptable. And I -- I -- I am proposing to you that 21 the question of when that plan is acceptable is a 22 decision of the Board, not a decision of you, Mr. 23 MacDonald, or you, Mr. Pearse, isn't that correct? 24 It's the Board's decision as to when that 25 plan is acceptable.

1 MR. DON MACDONALD: This is Don 2 MacDonald, representing the Tlicho Government. The 3 reason that we're having these proceedings today is to 4 help the Board understand these issues. 5 One of the things that the Board has done 6 is set up a working group to assist it in understanding 7 and making recommendations to the Board about when an 8 ammonia discussion paper is acceptable. 9 The working group has submitted a number 10 of reviews of various drafts of the ammonia discussion 11 paper. And the results of each of those reviews, which 12 are on the public record and have been submitted, show 13 that the ammonia discussion paper is not acceptable and 14 does not address the terms of reference. 15 MR. BRAD ARMSTRONG: Brad Armstrong. 16 Thank you, Mr. Macdonald. You -- you are aware are you 17 not, that when the Board determined that the discussion 18 paper was acceptable it had in front of it the views of 19 the working group. 20 And I'm -- I'm suggesting to you that it 21 is not you or Mr. Pearse or the working group that 22 decides whether the plan is acceptable, it is the Board. 23 And I'm asking you to -- to accept that it 24 is the Board that has the authority to determine when 25 that plan is acceptable. Do you agree with that?

1 MR. DON MACDONALD: Don MacDonald 2 representing the Tlicho Government. I -- I think we all 3 know that we are here to assist the Board in making 4 decisions and that it is the Board that has the authority 5 to make decisions. 6 MR. BRAD ARMSTRONG: Brad Armstrong. 7 Thank you, Mr. MacDonald. And if you could turn to slide 8 18, your slide 18 and this is a slide in which you say 9 the ammonia management plan is not acceptable. 10 Now again, I -- I presume that's -- that's 11 your opinion, you recognize that in these proceedings 12 other members of the working group, and in particular 13 DIAND and Environment Canada, have come forward and said 14 that they find the ammonia management plan an acceptable 15 document, that they're in general agreement with that 16 plan. 17 And so at this stage when you say it is 18 unacceptable you're not speaking as a memb -- you're not 19 speaking on behalf of the working group anymore, are you, 20 Mr. MacDonald, you're speaking only on behalf of the 21 Tlicho Government? 22 MR. DON MACDONALD: Don MacDonald, 23 representing the Tlicho Government. The ammonia 24 management plan, as you know, was submitted late in the 25 process. Our expectation was that an ammonia management

1 plan would have been submitted in time such that we could 2 implement any changes that were necessary to reduce the 3 discharge of ammonia to the environment in time before 4 the interim effluent quality ran out in August 30th of 5 2006. 6 That didn't happen, as we know. In fact, 7 the ammonia management plan was not submitted until after 8 that date. And so there was no -- the plans and -- and 9 activities identified in the ammonia management plan 10 could not possibly have been implemented in time to 11 achieve any new effluent quality criteria that the Board 12 may have set. 13 Having said that, that late submission 14 time meant that the working group did not have an 15 opportunity to review that document as a group. And so 16 each of the Intervenors have had to review that document 17 by themselves and submit their comments on that document 18 to the Board through these proceedings. 19 MR. BRAD ARMSTRONG: Brad Armstrong. 20 Thank you, Mr. MacDonald. And I take it you disagree 21 with the -- the assessment of -- of INAC and Environment 22 Canada that and I'll -- I'll quote really from 23 Environment Canada's submission, that: 24 "The ammonia management plan is a 25 useful and comprehensive compilation of

1 the relevant information and summarizes 2 plans to move forward." 3 You're not prepared yet to accept that 4 this is an acceptable ammonia management plan, is that -- 5 is that right? 6 The Tlicho Government still stands opposed 7 to the implementation of this plan, is that right? 8 MR. DON MACDONALD: This is Don 9 MacDonald, representing the Tlicho Government. What we 10 have -- what we are on the record as saying is that the 11 ammonia management plan has been developed based on what, 12 in our opinion and in the opinion of the working group, 13 was a deficient ammonia discussion paper. 14 That being said, it is difficult for us to 15 understand how a defensible ammonia management plan could 16 be developed based on a discussion paper that does not 17 fully explore the range of options that are potentially 18 available and does not provide a thorough or unbiased 19 evaluation of those options. 20 MR. BRAD ARMSTRONG: Brad Armstrong. 21 Thank you, Mr. MacDonald. I take it from that answer 22 that you still are not prepared to accept the Board's 23 finding that the discussion paper is acceptable. 24 Can I ask you this: Will you respect the 25 decision of the Board if it determines that the ammonia

1 management plan, as proposed, is acceptable? 2 Will you -- will you respect the decision 3 of the Board if they do that? 4 MR. DON MACDONALD: This is Don 5 MacDonald, representing the Tlicho Government. Once 6 again, and I've said this a number of times, our job here 7 is to assist the Board in understanding these issues and 8 to provide our recommendations. It is the Board's 9 prerogative to make the decisions, and we support the 10 Board when they -- they make those decisions. 11 MR. BRAD ARMSTRONG: Brad Armstrong. 12 Thank you, Mr. MacDonald. At your submission, at page 31 13 and 32, you're critical of the explosives management 14 measures in place and in fact you -- you suggest that any 15 actions taken on explosives will be ineffective. 16 You see that on page 32 of your 17 submission? Mr. MacDonald? D you see that? 18 19 (BRIEF PAUSE) 20 21 MR. DON MACDONALD: Don MacDonald, 22 representing the Tlicho Government. Yes, I do. 23 MR. BRAD ARMSTRONG: All right. Brad 24 Armstrong, Madam Chair. So your -- your opinion in here 25 is that -- that the approach taken by the Company will

1 virtually ensure that any actions taken on explosives 2 management will be ineffective. 3 Can you tell me, are you an expert in 4 explosives management, Mr. MacDonald? 5 MR. DON MACDONALD: This is Don 6 MacDonald, representing the Tlicho Government. If we 7 read this paragraph in total, and I will read it in 8 total, what it says: 9 "In addition, Diavik appears to be 10 seeking only [and this is a quote from 11 the Ammonia Management Plan] low-cost 12 and positive operation impact options 13 for explosives management. This will 14 virtually ensure that any actions taken 15 on explosives management will be 16 ineffect -- ineffective." 17 So what we are saying in that paragraph is 18 that if we are seeking only low-cost explosive management 19 options and only those options that have minimal impact 20 on the operation of the Company, it is unlikely that we 21 are going to fully evaluate the range of explosives 22 management options, and as a result of that we are 23 unlikely to have the most effective solutions. 24 I don't think you need to be an expert on 25 explosives management to come to that conclusion, you

1 just simply need to be able to utilize the tenants of 2 logic. 3 MR. BRAD ARMSTRONG: Brad Armstrong, 4 Madam Chair. 5 Mr. MacDonald, could you confirm, please, 6 that you are not an expert in explosives management and 7 that you do not have expertise on your panel with respect 8 to explosives management? Can you please confirm that 9 for the Board? 10 MR. DON MACDONALD: This is Don 11 MacDonald, representing the Tlicho Government. 12 Yes, that is in fact true. We have relied 13 upon the experts that have been provided by other 14 Intervenors on explosives management and we have listened 15 to what they have told us also. 16 17 (BRIEF PAUSE) 18 19 MR. BRAD ARMSTRONG: Brad Armstrong, 20 Madam Chair. Mr. MacDonald, the only Intervenor witness 21 who we can recall speaking to the Ammonia Management Plan 22 was Mr. Knapp who said that he was, in general, agreement 23 with the plan, do you recall that? 24 MR. DON MACDONALD: This is Don 25 MacDonald. Yes, we have spoken with -- with Mr. Knapp

1 about this issue. 2 MR. BRAD ARMSTRONG: On pages -- on page 3 31 and 32 -- sorry, it's Brad Armstrong -- on page 31 and 4 32 of your submission you now -- you then go into talking 5 about treatment systems. And you say that in fact there 6 are a number of options for treatment and you list them 7 including biological treatment; ion exchange is -- is the 8 third one listed there. And you say all of these are 9 well-proven commercial technologies that have been 10 demonstrated to reliably reduce ammonia concentrations to 11 low levels in waste water. 12 I just want to confirm again, Mr. 13 MacDonald, that neither you nor any other member of your 14 panel is an expert in treatment systems. 15 You don't -- you're not engineers are you? 16 MR. DON MACDONALD: Don MacDonald. 17 That's correct. We are not engineers. 18 MR. BRAD ARMSTRONG: Brad Armstrong. Mr. 19 MacDonald, yesterday you said that the decisions with 20 respect to treatment systems... 21 MR. DON MACDONALD: Don MacDonald again. 22 I misspoke. In fact we do have an engineer here on our 23 panel and I apologize, Peri. 24 MR. BRAD ARMSTRONG: Brad Armstrong, 25 Madam Chair. Well, perhaps we could just confirm that

1 the engineer on your panel is not an expert in waste 2 water treatment systems. 3 MS. PERI MEHLING: Peri Mehling. That's 4 a pretty general statement there. I do have some 5 familiarity with a number of waste water treatment 6 systems but have not applied it to this question. 7 MR. BRAD ARMSTRONG: Brad Armstrong. 8 Thank you. Thank you, Ms. Mehling. 9 Mr. Macdonald, yesterday you suggested 10 that the decisions with respect to ammonia management 11 measures were driven by the 20 milligram per litre limit. 12 And you seemed to be suggesting that in the discussion 13 paper and the Ammonia Management Plan, treatment systems 14 would be rejected simply because at twenty (20) the 15 environment was protected and therefore there was very 16 little benefit in going to treatment systems below twenty 17 (20). 18 Was that the -- was that the suggestion 19 you were making yesterday about them being driven by the 20 20 milligrams per litre? 21 MR. DON MACDONALD: Don MacDonald. Could 22 you rephrase that question for me, please. 23 MR. BRAD ARMSTRONG: Brad Armstrong, 24 Madam Chair. Mr. MacDonald, yesterday you said decisions 25 in the discussion paper and the ammonia management plan

1 were driven by the 20 milligram per litre limit. 2 Do you recall saying that? 3 MR. ARTHUR PAPE: Arthur Pape, Madam 4 Chair, and excuse me. I think it's an improper question. 5 It was actually Mr. Knapp's evidence that said that. He 6 said that in answer to questions on cross-examination. 7 MR. BRAD ARMSTRONG: Brad Armstrong, 8 Madam Chair. Could you turn to slide 17, please, from 9 yesterday, Mr. MacDonald. 10 MR. DON MACDONALD: Don MacDonald. Yeah. 11 Could you tell me which -- is there a heading 12 specifically that you're looking at? 13 MR. BRAD ARMSTRONG: Brad Armstrong. 14 Pardon me -- 15 MR. DON MACDONALD: Mine are not 16 numbered. 17 MR. BRAD ARMSTRONG: -- I numbered them 18 on my page. The heading is "Ammonia Management 19 Outstanding Issues" and then there's a heading, it says 20 "Ammonia Discussion Paper Continued" and it says "Key 21 Issues". 22 Do you see that one? 23 MR. DON MACDONALD: Don MacDonald. Yes, 24 I do see that slide. 25 MR. BRAD ARMSTRONG: Brad Armstrong.

1 And, Mr. MacDonald, the -- the second issue says "Based 2 on 20 milligrams per litre as target EQC". And I 3 understood you to be suggesting yesterday that -- that in 4 fact treatment systems or other options were being 5 rejected on the basis that 20 milligrams per litre was 6 protective of the environment and, therefore, moving 7 ammonia levels below that was -- was not seen as 8 beneficial. 9 Did you -- did you suggest that yesterday 10 to the Board? 11 MR. DON MACDONALD: Don MacDonald. Yes. 12 I indicated that the ammonia discussion paper appeared to 13 have been primarily focussed on achieving 20 milligrams 14 per litre as a level that was, in the interpretation of 15 the company, protective of the environment. 16 And as a result of that, evaluations of 17 the costs and potential benefits of various management 18 and other treatment options then would not necessarily 19 consider and didn't consider, in our opinion, the 20 potential benefit of minimizing loadings to the lake in 21 addition to establishing levels that would be protective 22 of fish in the lake. 23 MR. BRAD ARMSTRONG: Brad Armstrong, 24 Madam Chair. Mr. MacDonald, do you have a copy of the 25 addendum to the discussion paper with you by any chance?

1 MR. DON MACDONALD: Don MacDonald. No, I 2 -- I don't have that with me. 3 4 (BRIEF PAUSE) 5 6 MR. BRAD ARMSTRONG: Madam Chair, we have 7 a copy that Mr. MacDonald could have a look at. 8 Mr. MacDonald, I'm going to ask you to 9 look at page 17 of that discussion paper. 10 11 (BRIEF PAUSE) 12 13 MR. BRAD ARMSTRONG: Brad Armstrong, 14 Madam Chair. I'm -- I'm showing you this, Mr. MacDonald, 15 as an example. And you'll see that there is -- this is a 16 -- an assessment of the ion exchange treatment system for 17 flows between 5,000 to 45,000 cubic metres per day. It 18 notes that it's a proven commercial treatment process. 19 It notes some environmental benefits of reducing ammonia. 20 And then it goes down to the net 21 environmental effect, down near the bottom of the page. 22 And it says -- it says this in the first paragraph: 23 "The environmental benefits are 24 marginal. With a final effluent 25 ammonia concentration of 20 milligrams

1 per litre it is unlikely that there 2 would be impacts on Lac de Gras." 3 And then it goes on to say: 4 "A thirty (30) day average effluent 5 concentration of 2.0 milligrams per 6 litre [which is what this treatment 7 system could achieve] would only 8 provide a marginal environmental 9 benefit over the base case of 2.7 10 milligrams per litre." 11 So here, Mr. MacDonald, the company is 12 comparing the base case, that is what they can achieve 13 without treatment, to a treatment system. 14 And I'm going to suggest to you that their 15 conclusion is correct, that if they can achieve 2.7 16 without a treatment system and they can just get it down 17 to 2 with a treatment system, I'm going to ask you to 18 agree that -- that that's a reasonable conclusion, that 19 the environmental benefit is marginal for -- for putting 20 that treatment system in. 21 Do you agree? 22 23 (BRIEF PAUSE) 24 25 DON MACDONALD: Yeah, that seems

1 reasonable to us. 2 MR. BRAD ARMSTRONG: Brad Armstrong. 3 Thank you, Mr. MacDonald. And I -- 4 MR. DON MACDONALD: But just -- just as a 5 corollary to that -- Don MacDonald again -- if -- if the 6 base case is in fact two point seven (2.7) why are we not 7 requesting an effluent quality criterion that would in 8 fact minimize loadings to the lake? 9 If we can achieve two point seven (2.7), 10 it would seem to me that it would be very reasonable to 11 be requesting an effluent quality criterion that is very 12 much lower than 20 milligrams per litre. 13 MR. BRAD ARMSTRONG: Brad Armstrong. Mr. 14 MacDonald, I'm going to come back to that. As you know, 15 environmental quality criteria are set in the licence 16 typically on water-based objectives and in fact it's 17 quite normal as Mr. Macdonald -- Gordon Macdonald -- 18 pointed out for the company, for this company and others 19 to operate well below those environmental quality 20 thresholds and they do that by good business practices. 21 I'm just going to move on to an -- 22 MR. DON MACDONALD: This is -- this Don 23 MacDonald. I think -- that sounded like a question to me 24 and so I would like to answer it if that's -- if that's 25 possible because I think it misrepresents, at least for

1 me, the intent of how effluent quality criteria are 2 developed. 3 What I thought I heard you say is that 4 effluent quality criteria are developed typically using a 5 water quality-based approach and what I interpret that to 6 mean is the levels that would be protective of for 7 example the fish or invertebrates in the lake. 8 I want to be clear that the way that 9 effluent quality criteria have been developed in the past 10 and specifically for the -- Diavik's original water 11 licence was to consider, (a) the levels of ammonia and 12 other constituents that would be protective of fish in 13 the lake and (b) what can be achieved through best 14 management practices and best available treatment 15 technologies, and that those two (2) pieces of 16 information are integrated together to establish the 17 final effluent quality criteria that are established 18 within a water licence. 19 So it's -- and I think that distinguished 20 -- distinction is very, very important because that is 21 the approach that allows us to -- to be assured that we 22 will minimize loadings of ammonia and other constituents 23 to the lake. 24 MR. BRAD ARMSTRONG: Brad Armstrong. 25 Thank you, Mr. MacDonald. I'm going to get to those

1 issues. 2 I just want to ask one (1) final question 3 on the Tlicho Government's position on treatment and I'm 4 going to refer you to the ammonia discussion paper and 5 some of the considerations which go into the treatment 6 systems which have been proposed. 7 And you may be aware that the -- the 8 treatment systems were -- are -- are not being 9 recommended by -- by Diavik and are not being recommended 10 by Environment Canada because in the north these 11 treatment systems require considerable heating of water 12 and air and that requires -- I'm looking at some figures 13 in the ammonia discussion paper -- that would require 14 annual estimates for treatment in the range of 4 to 39 15 million litres of fuel per year, the emission of 16 greenhouse gases in the range of 700 CO2 equivalent tons 17 per year, chemical requirements of many tons per year, 18 and the generation of sludges. 19 And for all of those reasons, Diavik has 20 rejected treatment systems on the site. And I take it 21 for these reasons that was why Environment Canada 22 yesterday said that they do not accept treatment systems 23 on the site but I'm reading your -- your submission on 24 page 32 in which you seem to be advocating treatment 25 systems.

1 And is this really the position of the 2 Tlicho Government that they would like to see treatment 3 systems on this site to reduce ammonia levels from 4 current of about 2.2 average down to 2 in the face of 5 these environmental side effects? Is that a reasonable 6 approach to be taking? 7 MR. DON MACDONALD: This is Don Macdonald 8 again and I -- I want to thank you for asking that 9 question because if our position about treatment systems 10 is not clear on the record now, it -- it does need to be. 11 And what we have been saying -- and if 12 it's unclear to Mr. Armstrong then it may be unclear to 13 others also -- is we are looking for a full evaluation of 14 the options. We want to know what all the options are. 15 We want them on the table so that the Board has a basis 16 for evaluating those options on their own merits. We 17 don't want them excluded at the front end of a process, 18 at the front end of an evaluation process. 19 We want to have all the options on the 20 table, we want to have the combinations of options on the 21 table so that the Board can -- can understand this issue 22 fully and not have to -- not have to rely upon an 23 incomplete evaluation of what is -- may be possible at 24 the site. 25 And I -- I'm hearing you saying that --

1 that Diavik has made -- has made this conclusion. But I 2 think you'd also agree with me that it is the Board that 3 needs this information so that they can make a good 4 decision about what the path forward is from here. 5 MR. BRAD ARMSTRONG: Brad Armstrong, 6 Madam Chair. And, Mr. MacDonald, I'll remind you that in 7 September, when the Board gave directions for the ammonia 8 management plan to be developed, they did not include in 9 that a requirement to put in a treatment system. That 10 was part of their September direction. 11 If I could turn you to some other issues. 12 We talked about water quality based objectives. And 13 you'll recall in 2000, Mr. MacDonald, you were -- you sat 14 on a committee to develop environment quality criteria 15 for the Diavik Diamond Mine. 16 Do you recall that? 17 MR. DON MACDONALD: This is Don 18 MacDonald. That's not precisely correct, but go on. 19 MR. BRAD ARMSTRONG: Brad Armstrong, 20 Madam Chair. As -- as a matter of fact, Mr. MacDonald, 21 you were the Chair of the -- of a committee established - 22 - a sub-committee called the Effluent Quality Criteria 23 Sub-Committee of the Technical Advisory Committee. You 24 were Co-Chair with Lisa Dyer (phonetic). 25 Do you recall that?

1 MR. DON MACDONALD: Don MacDonald again. 2 Just to be clear, my role with the Northwest Territories 3 Water Board was one of technical advisor and one of -- a 4 role of facilitator on that sub-committee. So, yes, I -- 5 I am -- was part of all of those proceedings at that time 6 and I assisted the sub-committee in preparing their 7 report and explaining that report to the Board. 8 Yes. I just wanted to make it clear that 9 I was not a member of that sub-committee but that I was a 10 facilitator on that group. 11 MR. BRAD ARMSTRONG: Brad Armstrong. 12 Thank you, Mr. MacDonald. The acknowledgements in the 13 report say Don MacDonald and Lisa Dyer, Co-Chairs. But 14 if you're -- I take your explanation of your -- of your 15 role. 16 You'll recall in that committee, Mr. 17 MacDonald, you used the ordinary approach to developing 18 water quality discharge criteria and that is looking at a 19 water quality based discharge criteria, and then also 20 looking at a -- a best available treatment technology 21 basis, and then came to some conclusions on what the -- 22 what the -- the EQC's should be in this licence. 23 Do you recall that? 24 MR. DON MACDONALD: Don MacDonald again. 25 Yes. The -- the approach that was used in 2000 is -- is

1 the same approach that I'm advocating be used today, 2 integrating what can be achieved using a best management 3 practice and best available technology, with what is 4 required to protect -- protect the lake and minimize 5 loadings to the lake. 6 And it's also clear, I believe, in that 7 document that minimizations of loadings to the lake is a 8 consideration for protecting the lake. Yes. 9 MR. BRAD ARMSTRONG: Brad Armstrong. 10 Thank you, Mr. MacDonald. I -- I actually want to focus 11 with you on the levels necessary to protect the lake, the 12 first part of this derivation here, and ask you to recall 13 -- I can provide -- I could give you a copy of this 14 document if you want, but -- the committee at that time 15 in determining the water quality objective based EQC for 16 total ammonia, the committee's recommendation was 49.8 17 parts per million. 18 Do you recall that? 19 MR. DON MACDONALD: Don MacDonald again. 20 Yes. Could you supply that -- 21 MR. BRAD ARMSTRONG: Yes. 22 MR. DON MACDONALD: -- document to me? 23 MR. BRAD ARMSTRONG: Brad Armstrong, 24 Madam Chair. We have some extra copies of these 25 documents for the -- for the Board as well if -- if you

1 wish to follow. 2 3 (BRIEF PAUSE) 4 5 MR. BRAD ARMSTRONG: Brad Armstrong, 6 Madam Chair. I -- Mr. MacDonald, if you could just turn 7 to page 56, just to cut straight to the chase here with 8 this committee's recommendations. You'll see -- you'll 9 see Table 2 and you see -- you see there under "Total 10 Ammonia" the water quality objective for Lac de Gras is - 11 - is 2.2 and that would be the -- the objective to be 12 achieved at the edge of the mixing zone I understand; is 13 that right? 14 MR. DON MACDONALD: This is Don 15 MacDonald. Yes, that's correct. That was the water 16 quality objective that was set based on the Canadian 17 water quality guidelines for ammonia at the time. 18 MR. BRAD ARMSTRONG: Brad Armstrong, 19 Madam Chair. 20 And at that time you were using a dilution 21 factor of twenty-three (23) and that's how you get from 22 two point two (2.2) -- you actually take two point two 23 (2.2), subtract the background concentration then 24 multiply by twenty-three (23) and get forty-nine point 25 eight (49.8).

1 Was -- that was the recommendation of the 2 committee of the total ammonia level which would be 3 protective of uses of Lac de Gras by aquatic life, et 4 cetera; isn't that -- that's correct, isn't it? 5 MR. DON MACDONALD: Yeah. This is Don 6 MacDonald and it's not -- it's -- it was for aquatic 7 life. It was aquatic life, not "et cetera". 8 MR. BRAD ARMSTRONG: Yes, for -- for 9 aquatic life but that being the most sensitive life form 10 that you were seeking to protect. That's correct; isn't 11 it? 12 MR. DONALD MACDONALD: Once again this 13 number relates specifically to aquatic life. What the 14 subcommittee identified was the need not only to protect 15 aquatic life but minimize loadings to the lake. 16 MR. BRAD ARMSTRONG: Yes. So we have 17 here a 49.8 part per million recommendation by the 18 committee. The ultimate -- the ultimate EQC developed, 19 Mr. MacDonald, you'll find that at Table -- Table 5 at 20 page 60 -- sorry, I think it's Table 5 which is -- 21 MR. DON MACDONALD: Yeah. This is Don 22 MacDonald. It is Table 5. 23 MR. BRAD ARMSTRONG: Page 59 -- 59. And 24 that's where we find the two (2) and four (4) which were 25 in the original licence. Those limits were based on, as

1 we've discussed here, expected levels of ammonia in the - 2 - in the effluent at the time. 3 So you said -- you -- you took the lower 4 of what was protective of the environment and what was 5 thought to be achievable; is that right? 6 DON MACDONALD: Don MacDonald. Yes, 7 that's correct. 8 THE CHAIRPERSON: Mr. Armstrong, do you 9 have additional questions to ask? I'm looking at the 10 time and we have two (2) and three (3) more presentations 11 to make. 12 MR. BRAD ARMSTRONG: Madam Chair, I'm 13 sorry, I do have a few more questions and I wonder if I 14 could have ten (10) or fifteen (15) minutes just to -- to 15 complete? Thank you, Madam Chair. 16 Mr. MacDonald, there's a -- a second 17 document which we provided to you and this document is 18 the evaluation that you did when -- in response to the 19 first ammonia amendment application made by Diavik in 20 2003. Do you recognize that document; it's dated 21 November 2003? 22 MR. DON MACDONALD: Don MacDonald. Yes, 23 I do. 24 25 (BRIEF PAUSE)

1 MR. BRAD ARMSTRONG: I'll just -- just 2 find the page that I want to refer you to. It's page -- 3 if you go to page 11 you'll see there at the top, we're 4 talking here about un-ionized ammonia now. 5 And first of all in -- when Diavik first 6 applied for an amendment it was to regulate un-ionized 7 ammonia, you recall that, Mr. MacDonald, and you 8 recommended -- you, amongst others, recommended that in 9 fact the -- the -- it -- the licence should regulate 10 total ammonia. That's one (1) of the recommendations 11 you're making in this -- in this document; isn't it? 12 MR. DON MACDONALD: Don MacDonald here. 13 We understand that both un-ionized ammonia and total 14 ammonia can adversely affect aquatic organisms. 15 MR. BRAD ARMSTRONG: Yes, I understand 16 that but in this document you were recommending that 17 rather than the licence limit being un-ionized that it 18 should -- the licence should regulate total ammonia and 19 in fact I'll come back to this, Mr. Macdonald, but the 20 licence actually regulates total ammonia but also has a 21 standard operating procedure to keep un-ionized ammonia 22 down below .1; you're familiar with that I think. 23 MR. DON MACDONALD: Don MacDonald. Yes, 24 I am familiar with that. 25 MR. BRAD ARMSTRONG: So -- Brad

1 Armstrong. In -- in this document, Mr. MacDonald, you 2 talk about freshwater fish concentrations and in the 3 paragraph -- top paragraph on page 11 you conclude that 4 at a pH level of 8.4 and you're picking that because that 5 was the highest allowed -- allowable level under the 6 licence, at 8.4, you would say the maximum discharge for 7 total ammonia should be 5.0 milligrams per litre. Do you 8 see that near the bottom of the paragraph? 9 You say four point six five (4.65) or 10 rounded to five (5) could be adopted as the maximum grab 11 sample for total ammonia. 12 MR. DON MACDONALD: This is Don 13 MacDonald. If you could give me just a few moments to -- 14 to re-read these couple of paragraphs. It has been quite 15 some time since I've looked at this and I don't want to 16 misinform the Board about what this means, by virtue of 17 the fact that we're moving through this very hastily. 18 19 (BRIEF PAUSE) 20 21 MR. DON MACDONALD: Don MacDonald. Go 22 ahead. 23 MR. BRAD ARMSTRONG: Thanks. Brad 24 Armstrong, Madam Chair. Mr. MacDonald, I just wanted to 25 get you to confirm, in your -- your calculation then was

1 that at a pH level of 8.4 maximum for total ammonia would 2 be -- five point zero (5.0) would be protective of the 3 environment. 4 That's your conclusion in this paragraph, 5 isn't it? 6 MR. DON MACDONALD: This is Don 7 MacDonald. And this calculation was based on the data 8 that we had available at that time and was explicitly 9 intended to identify a concentration that would be 10 protective of fish. But, with those provisos, yes, go 11 on. 12 MR. BRAD ARMSTRONG: Yes. Brad 13 Armstrong. And what I'm going to suggest to you, Mr. 14 MacDonald, is as -- as was later determined in the 15 licence with pH control, it was agreed at the -- in the 16 mediation, you and I both attended, that if Diavik could 17 control pH down at the seven (7) level, then the level of 18 total ammonia could go up and still be protective of the 19 environment. 20 And that's how we get -- using the same -- 21 the same calculation, in fact the curve on the very back 22 page of this document that you and I are looking at, is 23 the curve which would suggest that if you take pH down to 24 seven (7) then the total ammonia could go up to 20 parts 25 per million or thereabouts.

1 Do you agree with that? 2 MR. DON MACDONALD: This is Don 3 MacDonald. You can't come to that conclusion in 4 isolation. As part of the negotiated record of agreement 5 you'll -- you'll, I'm sure, remember that there was some 6 substantial uncertainty in the available data and 7 concerns about limitations, specifically limitations on 8 the availability of information on the toxicity of 9 ammonia to resident fish species and to certain ecosystem 10 components like benthic invertebrates, which we've been 11 talking about over the last few days. 12 And as a result of that, in addition to 13 the procedures that you're describing, which was, (a) a 14 temporary increase in the effluent quality criteria of 15 ammonia to 20 milligrams per litre, (b) the standard 16 operating procedure for controlling pH, such that the 17 level of un-ionized ammonia would not exceed a level of 18 0.1 milligram per litre, there is also a requirement for 19 conducting additional -- for developing, first of all, a 20 toxicity test -- a water only toxicity test for Hyalella 21 azteca so that we could expand our understanding of the 22 toxicity of ammonia to those ecosystem components and, 2, 23 to complete the -- the side-by-side toxicity test with 24 rainbow trout and round whitefish so that we could 25 understand better the toxicity of ammonia to resident

1 species. 2 So it's -- to take one (1) conclusion out 3 of context without looking at the entire provisions 4 within the record of agreement I think would be 5 misleading these proceedings. 6 It's important to understand that the 7 decisions that were made at that time were explicitly 8 designed to help Diavik get through that very difficult 9 situation that they were in at the time and, 2, to 10 provide us then -- us, specifically the Board, with the 11 information that they needed to adjust those effluent 12 quality criteria in the future, such that they would be 13 protective of fish and aquatic life, such that they could 14 minimize loadings to the lake and such that they could be 15 consistently achievable through the application of a 16 well-informed ammonia management plan. 17 It's important that all of these 18 components of the record of agreement be taken together, 19 not one in isolation from another. 20 MR. BRAD ARMSTRONG: Brad Armstrong. 21 Thank you, Mr. MacDonald. Let's -- let me take you to 22 Snap Lake. Now, in Snap Lake you sat on a panel for 23 DIAND and you made some recommendations to the Water 24 Board for total ammonia discharge limits for the Snap 25 Lake project.

1 And you used -- the document I have in -- 2 that I've given to you is, first of all, your slide 3 presentation which was presented to the Water Board. And 4 then attached to it is your -- your evaluation. 5 And if you turn to page 9 you'll see there 6 a table, on page 9. And at that Water Board hearing, Mr. 7 MacDonald, you, after careful analysis of a water quality 8 based objective, recommended a total ammonia EQC of 21 9 milligrams per litre. 10 That's correct, isn't it? 11 MR. DON MACDONALD: This is -- this is 12 Don MacDonald. It's been quite some time since I've 13 reviewed this document. If you could give me a few 14 moments to look through it again. 15 MR. BRAD ARMSTRONG: Mr. MacDonald, I'm 16 just looking at Table 9 and just suggesting that was the 17 recommendation you made. It's a pretty straightforward 18 question. You recommended 21 milligrams per litre total 19 ammonia at the Snap Lake Water Board hearing. 20 MR. DON MACDONALD: If you could give me 21 a few moments, please, to review this document. 22 23 (BRIEF PAUSE) 24 25 THE CHAIRPERSON: Mr. Armstrong, I

1 understand that these three (3) documents that you've 2 given to the Board is not part of the information that we 3 have received for the Hearing. And we have our legal 4 counsel to ask you a question about that. 5 MR. JOHN DONIHEE: Thank you, Madam 6 Chair. It's just that the Snap Lake documents aren't on 7 the record for this proceeding. So assuming that there 8 isn't any objection, when you're finished with your 9 questioning I'd just like you to tender them as exhibits. 10 MR. BRAD ARMSTRONG: Brad Armstrong. 11 Yes. Yes. I had intended to do that. Thank you. 12 13 (BRIEF PAUSE) 14 15 MR. DON MACDONALD: Don MacDonald here. 16 So I have had a chance to have a very cursory look at 17 this document and based on that review I agree that in 18 the -- in the context of this application and these 19 conditions those effluent quality criteria were 20 recommended. 21 MR. BRAD ARMSTRONG: Brad Armstrong. 22 Thank you. Thank you, Mr. Macdonald. 23 The -- the table is also showing under the 24 heading, "TAMDL" which is the technology-based discharge 25 limit. That's showing not -- "NR" I think means not

1 relevant; is that correct? 2 THE CHAIRPERSON: Mr. Armstrong, after 3 that response we're going to go on with the rest of the 4 Intervenors to ask questions. 5 MR. BRAD ARMSTRONG: Madam -- 6 MR. DON MACDONALD: I'm sorry, Mr. 7 Armstrong, I can't find that. 8 MR. BRAD ARMSTRONG: It's on the same 9 table, the second column. 10 MR. DON MACDONALD: Sorry, what page was 11 that on, sir? 12 MR. BRAD ARMSTRONG: Page 9. 13 MR. DON MACDONALD: I don't actually see 14 a footnote on that table that says what "NR" means. Do 15 you have specific information to say that that's "not 16 relevant"; is that...? 17 MR. BRAD ARMSTRONG: No. Perhaps -- 18 perhaps I could ask you over the break just to have a 19 look at that and confirm that -- that what you found was 20 that there was no -- no relevant technology-based limit 21 there. If you could -- I'll leave -- I'll leave that 22 with you to -- to consider the document and let us know. 23 MR. DON MACDONALD: Yes, that's -- that's 24 acceptable. 25 MR. BRAD ARMSTRONG: Brad Armstrong.

1 Madam Chair, I -- I really just have a -- a few more 2 questions and I wonder if I could just complete them 3 quickly? 4 THE CHAIRPERSON: Sure, if you can wrap 5 it up, Mr. Armstrong? 6 MR. BRAD ARMSTRONG: Thank you, Madam 7 Chair. 8 Mr. Macdonald, I'm just going to end this 9 -- this line of questioning respecting these -- these 10 limits and remind you that we -- as -- as you -- you 11 mentioned as well and I mentioned there's a standard 12 operating procedure in the water licence now and it arose 13 as part of the Record of Agreement. 14 And under that operating procedure the 15 company is required to adjust pH to maintain the un- 16 ionized ammonia at less than point one (.1) in the 17 effluent. Do you -- do you remember that provision in 18 the licence? 19 MR. DON MACDONALD: Don MacDonald. Yes, 20 I am aware of that provision in the licence. 21 MR. BRAD ARMSTRONG: Yes. Brad 22 Armstrong and I'll -- I'll suggest that that's an 23 additional level of protection for the environment. Do 24 you -- do you know whether the company has ever had to 25 control pH to reach that level?

1 Do you know the actual operating record, 2 Mr. MacDonald? 3 MR. DON MACDONALD: This is Don MacDonald 4 again. I just want to -- for the clarity for the Board 5 here, you suggested that that level would be protective 6 of fish, point one (.1). Once again it was the round 7 whitefish, side-by-side round whitefish toxicity testing 8 that was intended to provide the information so that the 9 Board would understand if in fact that .1 level would be 10 protective of fish. 11 So I think that's important that we be 12 clear that -- that we're -- we have not yet come to the 13 conclusion that that point one (.1) level is protective. 14 Having said that, I am not aware of a time 15 when pH adjustment has actually been used at the mine 16 today. 17 MR. BRAD ARMSTRONG: Brad Armstrong. Mr. 18 Macdonald, I -- my understanding is that in fact the un- 19 ionized ammonia in the effluent is generally presented at 20 around point zero one (.01) and I'm going to suggest to 21 you that given what we know about the record of the 22 ammonia levels in the effluent, that we know that they're 23 averaging two point two (2.2), they've gone to a max of 24 eight (8), that the -- the un-ionized fraction is -- is 25 typically in the point zero one (.01) range.

1 I'm going to ask you to agree that it is - 2 - that -- that you would -- would accept that the levels 3 at which the mine is operating right now are well within 4 levels which would be protective of the environment with 5 respect to ammonia. 6 MR. DON MACDONALD: Could you answer -- 7 could you ask that question once again? 8 MR. BRAD ARMSTRONG: Brad Armstrong, 9 Madam Chair. 10 MR. DON MACDONALD: It was -- it was many 11 parts and it -- 12 MR. BRAD ARMSTRONG: All right. These 13 are the things we know about the ammonia levels at the -- 14 at the mine site. We know that the ammonia levels have 15 averaged 2.2 milligrams per litre since 2003. We know 16 that the maximum they've ever achieved is somewhere 17 around eight (8). 18 We know that the un-ionized fraction has 19 always been below point one (.1) and in fact I'll ask you 20 to accept my figure today that it in fact is typically in 21 the range of point zero one (.01). 22 And if those figures are correct, Mr. 23 MacDonald, I'd ask you to agree that those -- at those 24 levels you would be confident that the -- the operations 25 of the mine with respect to ammonia are -- are protective

1 of the environment today. 2 MR. DON MACDONALD: Don MacDonald. Once 3 again, I think we are having a challenge with defining 4 what we mean about protecting the environment. 5 There is a number of issues that we've 6 identified and I've tried to make this as clear as I can 7 so that everyone can understand this, is that protection 8 of the environment has a number of components to it. One 9 is protecting fish and aquatic life. Another is 10 protecting other uses of water in the lake. Yet another 11 is minimizing loadings to the lake. 12 So if your question, and I think it is, 13 focussed on would the levels that have been discharged 14 from the facility to date be expected to either, (a) 15 cause acute toxicity within the initial dilution zone or 16 -- to fish or chronic toxicity outside the initial 17 dilution zone, I would say that unlike -- it is unlikely 18 that to date we would have seen that kind of toxicity. 19 I can't say categorically that we haven't 20 seen it because we haven't done some of the important 21 work that needs to be completed to be able to answer that 22 question. But from -- just from a perspective of saying 23 how likely is it that we're being protective, that we 24 have been protective to date of fish and aquatic life, I 25 would say is unlikely that we would have been expected to

1 see acute or chronic toxicity. 2 MR. BRAD ARMSTRONG: Brad Armstrong. 3 Thank you, Mr. MacDonald. 4 Madam Chair, I just have a couple of 5 questions for Mr. Pearse. 6 Mr. Pearse, you have a long chronology 7 that you developed with respect to the ammonia -- or, 8 sorry, I'm still on ammonia, I -- I meant the aquatic 9 effects monitoring plan, now the AEMP, if we could go to 10 that. 11 And, Mr. Pearse, you seem quite critical 12 in that chronology of the fact that the Diavik Technical 13 Committee recommended approval of the original approach 14 to the aquatic effects monitoring plan. 15 And the submission I'm putting to you, Mr. 16 Pearse, is the -- the Dogrib Treaty 11 Council, as it 17 then was, and now the Tlicho Government, was a member of 18 the Diavik Technical Committee, wasn't it? 19 You always were a member of the Diavik 20 Technical Committee, weren't you? 21 MR. TONY PEARSE: Tony Pearse. I believe 22 that is true. 23 MR. BRAD ARMSTRONG: Mr. Pearse, you -- 24 you chose not to participate in the -- in the Diavik -- 25 in the Diavik Technical Committee deliberations during

1 that period, didn't you? 2 MR. TONY PEARSE: Tony Pearse. No. I 3 was -- I had received no instructions to -- to 4 participate or not. It was not something that was in 5 front of me for two (2) years or so. 6 MR. BRAD ARMSTRONG: Mr. Pearse, you -- 7 you certainly would agree that the Dogrib Treaty 11 8 Council certainly would have been entitled to a seat at 9 the Diavik Technical Committee if -- if you had -- if you 10 or some other representative had presented themselves. 11 You agree with that. You don't -- you 12 don't suggest that you would have been excluded from that 13 committee, do you? 14 MR. TONY PEARSE: Tony Pearse. No. I 15 don't believe that we would have been excluded from that. 16 MR. BRAD ARMSTRONG: Brad Armstrong. Mr. 17 Pearse, the proposition I'm putting to you is this, that 18 your chronology is a long chronology of review of the 19 AEMP and decisions made by various people, including the 20 Diavik Technical Committee, and the Dogrib, for one 21 reason or another, simply didn't participate in those -- 22 in those discussions throughout the years 2001, 2002, 23 2003, 2004, maybe around 2005 when the -- when the 24 licence renewal application was made you -- you became 25 involved.

1 But in all those early years, 2001 to 2 2005, you took no part in the discussions that the 3 various parties were having with respect to the -- the 4 aquatic effects monitoring plan. You did not step in to 5 assist. 6 I heard many of your Elders and your Chief 7 saying that it was -- that it was imperative that people 8 step forward and work together and assist. But in all 9 those years, and you're very critical of what people were 10 doing in those years, but you chose not to participate; 11 didn't you? 12 MR. TONY PEARSE: Tony Pearse. No, 13 that's not true. I just had never received instruction 14 to -- to attend the meetings. I believe that there was a 15 seat for the Dogrib Treaty 11 Council on that. I do not 16 know to what extent they participated. 17 And my first involvement I guess with the 18 Diavik Technical Committee as I remember is when pretty 19 close to the time when the application for the ammonia 20 amendment came up and at that point I did get instruction 21 to go to and attend the first meeting. That must have 22 been I think around 2003. 23 24 (BRIEF PAUSE) 25

1 MR. BRAD ARMSTRONG: And just a -- just a 2 couple of final points, Mr. Pearse. 3 Yesterday you suggested that Gord 4 Macdonald had said something that was untrue. You 5 suggested that he said that -- that the company had 6 started on the revised new AEMP in the fall of 2005 and 7 in fact I'm going to suggest to you that this is what he 8 said. 9 He said that in the fall of 2005 he 10 started looking at the -- at the -- the 2001 AEMP trigger 11 values to see whether they should be moved and that in 12 January of 2006 he commissioned Golder Associates to 13 begin looking at a new 2006 AEMP. 14 And I'm going to suggest to you that when 15 you said that Mr. Macdonald had said something untrue you 16 were misunderstanding or mishearing what he had said. Do 17 you agree with me? 18 19 (BRIEF PAUSE) 20 21 MR. TONY PEARSE: It's Tony Pearse. I 22 remember in the December technical sessions when the AEMP 23 was being discussed and it was at those sessions that 24 Barry Zajdlik presented to the larger group the results 25 of his work on the baseline data and the discussion got

1 very serious and I think there was an increasing 2 awareness at that time that the Aquatic Effects 3 Monitoring Program and the -- the word came up for the 4 first time needed to be redesigned. 5 And in fact there was an offer made to 6 Gord Macdonald at that meeting to -- for a number of -- 7 by a number of people to help Diavik sit down and 8 redesign the program. And my recollection is that Diavik 9 refused to do that. 10 I know my understanding is that there was 11 some discussion that had probably started prior to that 12 about redefining the trigger values but I'm not aware of 13 any -- any other initiative by Diavik to really take on 14 the AEMP in any kind of comprehensive way. If, in fact, 15 and I -- I may have missed Gord's statement about 16 commissioning Golder in January 17 MR. BRAD ARMSTRONG: And if you missed 18 that statement then your -- your suggestion that he said 19 something untrue, you would withdraw that; wouldn't you? 20 MR. TONY PEARSE: Tony Pearse. What I 21 said yesterday was that his -- as I understood his 22 statements on -- on the record that the August workshop 23 on the AEMP, when he was -- he'd been talking about a 24 comprehensive program, at that point it wasn't a 25 comprehensive program, it was in fact an effluent --

1 effluent monitoring program and I just was trying to 2 point out that the record was pretty clear that's what it 3 was and they really didn't have a concept at that point 4 about anything beyond that and how to link all the pieces 5 together. 6 MR. BRAD ARMSTRONG: Brad Armstrong. 7 Madam Chair, I just have one (1) final question. 8 Mr. Pearse, this goes to the -- your 9 chronology and I'm going to suggest to you that anyone 10 reading your chronology really is not going to get the 11 full picture by reading it but they're going to have to 12 go back and look at other documents and talk to other 13 people. 14 And I'll give you one (1) suggestion, it's 15 on page 71, and in -- on page 71 you cite the Gartner Lee 16 evaluation of the 2004 AEMP report. And in that citation 17 you indicate that Gartner Lee noted some deficiencies in 18 the -- in the program. 19 And what you neglect to say in the 20 chronology is that Gartner Lee said that the -- a review 21 of that report confirmed that the project was not causing 22 significant environmental effects. 23 You neglected to put that part in your 24 chronology, didn't you? 25 MR. TONY PEARSE: Tony Pearse. That

1 statement is not in here. There are -- when you're 2 preparing a review of this kind and you're looking at the 3 documents, some of the reports are quite large and 4 obviously you have to summarize things. And what we're - 5 - well, that's it. 6 So, yes, that's true, it's not here. 7 MR. BRAD ARMSTRONG: Brad Armstrong. 8 Thank you, Madam Chair, and thank you for letting me have 9 a bit more time to ask questions. I have no further 10 questions. 11 And we should -- we should mark the 12 materials as -- as exhibits. There were -- just for the 13 record, there were three (3) documents I referred to. 14 The first one is April 2000 and it's 15 called, Development of Effluent Quality Criteria for the 16 DDMI Class A Water Licence/Recommendations to the NWT 17 Water Board. 18 The second document is dated November 2003 19 and it's called, An Evaluation of the Application for 20 Amendment of Water Licence N7L2-1645. The title goes on 21 but I -- I'll leave it at that. 22 And the third document is -- it begins 23 with a slide presentation of the Department of Indian 24 Affairs and Northern Development Intervention in the 25 Mackenzie Valley Land and Water Board Public Hearing for

1 the Snap Lake Project. 2 Those three (3) documents, if we could 3 mark those as -- as exhibits, Mr. Donihee. 4 THE CHAIRPERSON: Okay. We will take a 5 fifteen (15) minute break. 6 7 --- Upon recessing at 10:35 a.m. 8 --- Upon resuming at 10:50 a.m. 9 10 THE CHAIRPERSON: Call this meeting to 11 order. 12 13 (BRIEF PAUSE) 14 15 THE CHAIRPERSON: We'll go down the list 16 of Intervenors that want to ask questions of Tlicho. The 17 next one is EMAB -- oh, just something. I'll turn it 18 over to our legal counsel. 19 MR. JOHN DONIHEE: Thank you, Madam 20 Chair. John Donihee for the Board. 21 I just want to -- Mr. Armstrong tendered 22 three(3) documents as -- as exhibits and I just wanted to 23 ensure or to find out whether there was any objections 24 from any of the parties with respect to these documents 25 going in as exhibits in this proceeding.

1 MR. BILL MCELHANNEY: Bill McElhanney on 2 behalf of EMAB. We -- we don't have any formal 3 objection, although I do want to put it on the record 4 that it is -- it is somewhat of concern that a line of 5 questioning would have been advanced for the period of 6 time that it was without having the witness acknowledge 7 that they were aware of the documents that were being 8 submitted, number 1. 9 And number 2, that it would have been 10 tendered as an exhibit. 11 And number 3, that the -- then the 12 Intervenors could have had an opportunity to have been 13 provided with copies of that exhibit as well. 14 So, I just wanted to put on record our 15 concerns with respect to the procedural aspect of that. 16 And we would respectfully request copies of those 17 exhibits at the earliest convenience and would like to 18 reserve our right to make submissions in the event that 19 those particular documents are being significantly relied 20 upon in the decisions of this Board. 21 MR. BRAD ARMSTRONG: Brad Armstrong, 22 Madam Chair. We -- we do have extra copies of the 23 documents here. We'll provide a copy to Mr. McElhanney 24 and to anyone else who needs one (1). 25 MR. ARTHUR PAPE: Arthur Pape for the

1 Tlicho Government, Madam Chair. And we don't object to 2 the documents being introduced as exhibits, but I -- I 3 would submit that the proper approach in this case is 4 that the documents have been -- that very small parts of 5 those documents have been discussed and that the 6 documents should not be considered to have been 7 introduced generally for all purposes and that -- that 8 the documents haven't been introduced or -- or even 9 accepted as authoritative opinions generally and they 10 haven't been part of the record generally. 11 And we have no objection to them being 12 exhibits for purposes of those portions of the cross- -- 13 you know, those very small parts of the record that were 14 -- that was created here this morning in the cross- 15 examination but I would -- I would suggest that the Board 16 should consider them exhibits only for those purposes and 17 not part of the record generally such that either the 18 parties need to start reviewing them and making 19 submissions on them. 20 I don't think we want to do that and I 21 would suggest that the Board shouldn't take them as 22 documents that they will themselves consider in a general 23 fashion that -- that would start drawing us into very 24 complex ways of prolonging the proceeding. That's my 25 submission.

67
  1                 THE CHAIRPERSON:   Is there any other
  2  comments from other Intervenors?  
  3  
  4                       (BRIEF PAUSE)
  5  
  6                 THE CHAIRPERSON:   INAC...?
  7                 MR. SCOTT DUKE:   Thank you, Madam Chair. 
  8  Scott Duke for INAC.
  9                 We certainly share Mr. McElhanney and Mr.
 10  Pape's concerns.  I think Mr. Pape captures the issue
 11  accurately in -- in his drawing a distinction between a
 12  document that's admitted as an exhibit for the purposes
 13  of cross-examination as opposed to I -- I guess a
 14  document that's tendered as a piece of evidence to be put
 15  on the public record or the public registry as part of
 16  this proceeding.
 17                 By way of illustration the -- the National
 18  Energy Board makes that distinction in its hearings. 
 19  Sometimes a party will simply use a document in the
 20  proceeding as an exhibit in aid of cross-examination but
 21  it doesn't otherwise file that document on its public
 22  registry as a piece of evidence and I -- I agree with Mr.
 23  Pape's characterization of that and I think that if the
 24  document is admitted it should be admitted for that
 25  purpose only.  Thank you.

1 THE CHAIRPERSON: Any other comments from 2 other Intervenors? 3 MR. BRAD ARMSTRONG: Madam Chair, Brad 4 Armstrong. 5 I certainly accept the documents being 6 tendered for the limited purposes as suggested by Mr. 7 Pape and seconded by Mr. Duke; that's quite satisfactory 8 to us. 9 THE CHAIRPERSON: Mr. Dohinee...? 10 MR. JOHN DONIHEE: Thank you, Madam 11 Chair. 12 John Donihee. Then I suggest, subject to 13 the agreement by the Applicant that the exhibits be 14 accepted for the limited purposes for which they were 15 tendered and that was to provide a basis for the cross- 16 examination of Tlicho witnesses and we would list them 17 as: 18 The development of effluent quality 19 criteria document would be Exhibit 1. 20 The evaluation of the application for 21 amendment of water licence N7L21645 Exhibit 2. 22 And the excerpts from the PowerPoint 23 presentations from the Snap Lake Diamond Project Water 24 Licencing Proceeding as Exhibit 3. 25

1 --- EXHIBIT NO. 1: Development of Effluent 2 Quality Criteria Document. 3 4 --- EXHIBIT NO. 2: Evaluation of the Application 5 for Amendment of Water 6 Licence N7L21645. 7 8 --- EXHIBIT NO. 3: Excerpts from the Snap Lake 9 Diamond Project Water 10 Licencing Proceeding. 11 12 THE CHAIRPERSON: Okay. Having said all 13 that, we will proceed to the questioning from the 14 Intervenors of the Tlicho Government and the first one on 15 our list is EMAB. 16 MR. BILL MCELHANNEY: Thank you, Madam 17 Chair, Bill McElhanney. We have no questions of the 18 Tlicho Panel. 19 THE CHAIRPERSON: Any questions from 20 INAC? 21 22 QUESTIONS BY INAC: 23 DR. KATHY RACHER: Yes, Kathy Racher 24 here from INAC. I have a couple of questions. 25 First, for Don MacDonald, is it your

1 opinion that both ionized and un-ionized ammonia are 2 toxic to aquatic life? 3 MR. DON MACDONALD: Don MacDonald. Yes, 4 it is. 5 DR. KATHY RACHER: Do you -- do you agree 6 that there is sufficient evidence of organisms -- aquatic 7 organisms being specifically very toxic -- very 8 sensitive, I'm sorry, to ionized ammonia, that it is 9 worth considering the impact of ionized ammonia in the 10 effluent to aquatic life in Lac de Gras? 11 MR. DON MACDONALD: Don MacDonald. Yes, 12 I agree that there is sufficient evidence to make sure 13 that we look at both un-ionized and ionized ammonia as 14 we're evaluating the toxicity of ammonia to aquatic 15 organisms. 16 DR. KATHY RACHER: Okay. And lastly, in 17 your opinion, is the control of pH in the -- sorry, it's 18 Kathy Racher. I always have to be reminded. 19 Is it your opinion that the control of pH 20 of the effluent as practised by DDMI will have any effect 21 on protecting aquatic organisms that are sensitive to 22 ionized ammonia. 23 MR. DON MACDONALD: Don MacDonald. No, 24 that -- pH control will only correct for the toxicity of 25 un-ionized ammonia in the effluent but will not do

1 anything to mitigate the effects of ionized ammonia. 2 DR. KATHY RACHER: Okay. Thank you. 3 Kathy Racher. Now, I -- I just have a couple of other 4 sort of confusing points here. 5 I am having trouble recalling at any 6 meeting of the Ammonia Management Working Group, of which 7 we have both attended all the meetings, that there was 8 any discussion or update by Diavik Mines on -- on the 9 fact that they were actually already implementing a 10 number of ammonia management plans. And I'm just 11 wondering if there was something I missed. 12 Do you recall any update or discussion by 13 DDMI -- of the working group of implementation of plans? 14 MR. DON MACDONALD: Don MacDonald. I 15 have no recollection of DDMI bringing that discussion 16 forward. 17 DR. KATHY RACHER: Okay. Thanks. So I'm 18 not getting so old. But I have one (1) more other 19 recollection question. 20 On -- on Tuesday Gord Macdonald stated 21 that -- that in November 2005, he said that a decision 22 was made that this, meaning the -- the AEMP, was headed 23 for probably much bigger change than in fact just 24 changing the trigger values. And the -- the full quote I 25 could read out but it -- it can be found in the

1 transcript. 2 Do you recall any discussion by DDMI at 3 that time that they were considering anything but 4 changing the trigger values for the AEMP? 5 MR. DON MACDONALD: Don MacDonald. I 6 have no recollection of a broader discussion happening at 7 that time. 8 DR. KATHY RACHER: Okay. And just 9 lastly, just checking to see if you recall in the 10 December technical sessions, that myself, on behalf of 11 Indian and Northern Affairs, offered several times to 12 begin a process to redesign the AEMP so that it could be 13 done in a very timely fashion, and that those offers were 14 rejected by Mr. MacDonald as unnecessary. 15 MR. DON MACDONALD: Don MacDonald. Yes. 16 I -- I do remember those offers and I do remember their 17 rejection. 18 DR. KATHY RACHER: Thank you. No further 19 questions. 20 THE CHAIRPERSON: Any questions from 21 Department of Fisheries and Oceans? 22 23 QUESTIONS BY DEPARTMENT OF FISHERIES AND OCEANS: 24 MR. DAVE BALINT: Thank you, Madam Chair. 25 Dave Balint, for Fisheries and Oceans. I have a couple

1 questions regarding the Aquatic Effects Monitoring 2 Program. 3 And it was mentioned yesterday that it was 4 important to assess some of the linkages or the pathways 5 of effects of some of the different constituents, in not 6 only effluent, but some of the dike construction 7 materials. And -- but it is -- it was mentioned that 8 benthic invertebrates as being one (1) component of the 9 aquatic community but it would be assessed by population 10 size and structure. 11 So one of the missing links has been 12 related to determining some of the metal levels and, from 13 my understanding, Mr. MacDonald, on the panel is -- has 14 quite a bit of experience in assessing impacts and 15 sediments and benthic invertebrates, and I just wondered 16 if he could provide a little bit of information on how 17 important it is to determine metal -- metal level in 18 benthic invertebrates. 19 MR. DON MACDONALD: This is Don 20 MacDonald. Yeah, relative to the accumulation of metals 21 and sediments particularly, there are two (2) key issues 22 that need to be evaluated in an assessment. 23 The first is the direct effects of the 24 metals on the benthic invertebrates themselves that would 25 be reflected in such methods of the benthic community as

1 the abundance or the -- of benthic invertebrates over all 2 or Keytaxa (phonetic) or the results of toxicity tests 3 that were conducted on those sediments. 4 The second issue that's important is to 5 understand the levels of metals that accumulate in the 6 tissues aquatic organisms, and particularly in the 7 benthic organisms, the bugs that live on the bottom of 8 the lake, because accumulation of metals in those tissues 9 represents an issue for the fish that consume those bugs 10 and for the -- potentially for the people that consume 11 the fish. 12 And so there is a need to conduct two (2) 13 types of assessments to evaluate the potential effects of 14 accumulation of metals and sediments. And there's a 15 couple of ways of looking at the levels of metals in the 16 benthic invertebrates that live on the bottom of the 17 lake. 18 One (1) is to try to collect benthic 19 invertebrates in the field and submit those organisms to 20 a laboratory for chemical analysis of their tissues. The 21 second approach is to collect sediments from the field, 22 ship those to a laboratory where we can expose standard 23 test organisms to those sediments for a period of time, 24 typically 28 days. 25 And then at the end of those -- that

1 period, we are able to measure the concentrations of 2 metals in the tissues of the benthic invertebrates and 3 through the use of -- bioaccumulation models, be able to 4 anticipate what the effects on fish or human health might 5 be, as a result of those metals accumulating through the 6 food web. 7 And it's a problem that we frequently run 8 into where we go out in the field and we try to collect 9 these organisms and we can't find enough of them in the 10 field to be able to measure the levels of contaminates in 11 the tissues. And that's why we use these bioaccumulation 12 tests in the laboratory, to help us better understand how 13 bioaccumulation can occur. 14 And when we compare the results from what 15 we see in the field to the results of these 16 bioaccumulation tests, we frequently find that they agree 17 with one another. So, it's reasonable to use that kind 18 of approach to evaluate bioaccumulation of metals in the 19 food chain in this instance. 20 MR. DAVE BALINT: Thank you, Mr. 21 MacDonald. I was going to ask a question about methods 22 to assess, and thank you very much, you have answered 23 that question. 24 From my understanding then, that this 25 approach would be very feasible at Lac de Gras?

1 MR. DON MACDONALD: Don MacDonald again, 2 yeah this is an approach that we -- an approach that we 3 use at many of the sites that we evaluate around North 4 America and there's no reason that it would not also be 5 applicable at Lac de Gras. 6 MR. DAVE BALINT: Dave Balint, Fisheries 7 and Oceans. Thank you. I have no more questions. 8 THE CHAIRPERSON: Any questions from 9 Environment Canada? 10 11 QUESTIONS BY ENVIRONMENT CANADA: 12 MS. ANNE WILSON: Anne Wilson, 13 Environment Canada. Just one (1) question and this is 14 for Don. 15 Can you tell me how you arrived at the 16 recommendation for nitrate limits of twenty (20) and 17 forty (40)? 18 MR. DON MACDONALD: This is Don MacDonald 19 again. Yeah, the rationale for our recommendation for 20 effluent quality criteria for nitrate of 20 and 40 21 milligrams per litre as averages and grab EQC's is shown 22 on page 121 of our intervention. 23 And briefly, what I have done is reviewed 24 the work that was done for Diavik. I've also reviewed 25 some data that were generated for BHP Billiton by Rescan,

1 and identified the lowest observed effect level from that 2 study. And what was done was a long term exposure of 3 rainbow -- of lake -- lake trout embryos and fry to 4 nitrate. 5 I identified the lowest observed effect 6 level and the no-observed effect level for growth -- 7 sorry -- the no-observed effect level for growth in the 8 IC25 value for growth from that study. 9 And then consistent with the methods that 10 have been used by the Canadian Council of Ministers of 11 the Environment for developing protective effluent 12 quality criteria, I took the geometric mean of those two 13 (2) values to identify an apparent no-effect level, 14 essentially a level that would be protective of the fish 15 in the lake, and that was about 19.5 milligrams per litre 16 as a long-term average. 17 And on the basis of that, I rounded up to 18 20 milligrams per litre and 40 milligrams per litre and 19 then had a look at the levels that have -- have been 20 generated by Diavik this far in the operation, and it 21 appeared that they would have no difficulty consistently 22 achieving a level of 20 or 40 in the effluent given that 23 their highest levels to-date have been less than 10 24 milligrams per litre. 25 MS. ANNE WILSON: Anne Wilson. Thank

1 you. 2 THE CHAIRPERSON: Any questions from 3 North Slave Metis Alliance? 4 5 QUESTIONS BY NORTH SLAVE METIS ALLIANCE: 6 MS. SHERYL GRIEVE: Sheryl speaking. I 7 do have three (3) questions. 8 The first question is for Mr. MacDonald. 9 And the background to the question is that I -- it seems 10 to me with my limited involvement, that one (1) of the 11 greatest barriers to reaching consensus in the technical 12 working groups so far, on the ammonia issue and the 13 design of the AEMP, is that DDMI seems unwilling to 14 continue to meet the minimization commitments that they 15 made during environmental assessment and that they now 16 wish to discharge the maximum permissible acceptable 17 level. You also mentioned in your presentation a Federal 18 non-degradation policy. 19 So I'm wondering if this policy is 20 included in your intervention somewhere and would it be 21 relevant to say more about it to help the Board in 22 deciding which standard should be applied in this 23 situation? 24 MR. DON MACDONALD: This is Don 25 MacDonald, again.

1 That -- a copy of that non-degradation 2 policy is not included in our intervention, but I could 3 direct the Board to have a look at the Canadian Council 4 of Ministers of the Environment Water Quality Guidelines 5 document. And in an introduction of that document there 6 is a description of how the Canadian water quality 7 guidelines ought to be used and how they ought not be 8 used as pollute-up-to numbers. 9 There is a separate Federal non- 10 degradation policy that I have a copy of in my office, 11 but I think that that reference to the Canadian water 12 quality guidelines document will be sufficient to serve 13 that purpose. 14 MS. SHERYL GRIEVE: Sheryl speaking, very 15 loudly. My second question is for Don as well. 16 Could you list the problems that are 17 caused for an AEMP if the problem definition stage is 18 incomplete or missing? 19 MR. DON MACDONALD: Don MacDonald. The 20 problem definition is -- is part of an -- of an 21 integrated series of steps that ought to be used to make 22 sure that we have a -- a clear understanding of the 23 linkages between the sources of contaminants or other 24 stressors that are associated with human activities and 25 the plants and animals and humans, ecological receptors

1 in humans, that could be affected. 2 So that problem definition stage, or 3 problem formulation stage, is explicitly designed to 4 understand those linkages, such that we can develop a 5 monitoring program that is designed to identify and 6 monitor those things that are most likely to be affected 7 by the changes that are going to occur as a result of 8 discharging contaminants into the water or other 9 activities that could influence or affect the aquatic 10 organisms. 11 MS. SHERYL GRIEVE: Thank you. Sheryl 12 speaking. My last question, if you don't mind my 13 nosiness, could you give me a round figure to the 14 closest fifty to a hundred thousand ($50,000-$100,000) 15 dollars, what the Tlicho intervention has cost? 16 MR. ARTHUS PAPE: Arthur Pape speaking, 17 Madam Chairman, for the Tlicho Government. No that's not 18 a question that we're in a position to provide 19 information on. 20 THE CHAIRPERSON: And that's not a 21 question relevant to the question we want to hear on the 22 water licence. 23 Do you have any more questions Sheryl? 24 MS. SHERYL GRIEVE: That was my last 25 question. Thank you, very much.

1 THE CHAIRPERSON: Kutsel K'e First 2 Nation, do you have any questions? 3 CHARLIE CATHOLIQUE: No questions, Madam 4 Chair. 5 THE CHAIRPERSON: Deninu Kue First 6 Nation...? 7 Members from the public...? 8 Sorry, Yellowknives First Nation...? 9 10 QUESTIONS BY YELLOWKNIVES DENE FIRST NATION: 11 MS. RACHEL CRAPEAU: I have one (1) 12 question and I want to ask the former Grand Chief Joe 13 Robishaw in Dogrib. 14 15 (THROUGH INTERPRETER INTO ENGLISH) 16 17 MR. RACHEL CRAPEAU: 2000 -- in the year 18 2006... 19 20 (SPOKEN IN ENGLISH) 21 22 MS. RACHEL CRAPEAU: And I also work for 23 the Chief and Council. 24 25 (THROUGH INTERPRETER INTO ENGLISH)

1 MS. RACHEL CRAPEAU: In the past, years 2 ago -- today is not like it was a long time ago. Just 3 like my mom and dad, they used to go to, around to the -- 4 around Drybone Bay, we used -- that's where we used to 5 go. 6 There used to be a lot of old traditional 7 cabins at -- a long time ago in -- there was a mine -- 8 after the -- there was a mine -- after they left there 9 was some old abandon -- abandoned buildings. Like some 10 of the machineries that -- and some of the old barrels, 11 drums, there was one (1) old drum, one (1) barrel as a -- 12 but after I was taught -- after -- it said cyanide on 13 that -- on that barrel. 14 But, some of those -- so this -- years 15 ago, this is how the used to -- they used to use cyanide, 16 I guess there was -- some of those old mines -- some 17 mines are not the same. 18 But, you -- you and -- you have -- 19 yesterday you have said that you have travelled all over 20 -- all over your country and also that you have seen and 21 witnessed what happened at the old uranium mine at the 22 Rayrock mine the Colomac Mine -- the Colomac Mine, and 23 now that -- but now that compare the Diavik -- the old 24 mine -- some of those old gold mines, and also the 25 diamond mines are not the same.

1 But, there was an old mine that -- but 2 after they have left -- but I know that you have been to 3 some of those old -- old mines, of how they did the 4 reclamation. Maybe they haven't reclaim. What do you 5 think? 6 They did a job after they clean? I am 7 asking you a question of how -- but the -- the Diavik 8 Diamond Mine -- but after the Diavik Diamond Mine, after 9 they leave they do -- they'll do their own reclamation, 10 the restoration, and you are saying there will be no 11 contaminants or pollution to the water. 12 But -- but now do you -- do in -- what you 13 -- talking about the abandonment and the reclamation 14 plan, they were talking about they will do the 15 reclamation after the abandonment of the Diavik Mine. 16 That is my question to the Former Grand Chief Joe 17 Rabesca. 18 19 (THROUGH INTERPRETER INTO ENGLISH) 20 21 FORMER GRAND CHIEF JOE RABESCA: This, 22 maybe perhaps it will be better if I -- maybe I can -- if 23 I could borrow a -- a cordless mic. If I could borrow a 24 cordless mic so I can close -- stand close to the mic. 25 It would be nice if I can borrow a -- a cordless mic. He

1 wants to stand close to the -- when they talk about ex - 2 - yes, when they talk about ex but I -- my name is the 3 ex-Joe Rabesca. 4 I like to be call ex. Yes. Madam 5 Chairman, I would like to say thank you to the lady that 6 -- yesterday she had asked me -- she -- she has said that 7 -- I have worked around -- you talking about the old 8 uranium mine and Rayrock, Colomac Mine, and all the 9 places that you have been to. 10 I'm pretty sure that you have seen a lot 11 of all these things when you were talking about the 12 water. 13 But we do not know what the water will be 14 like at the existing mine. But I am fifty-eight (58) -- 15 I'll be fifty-eight (58) years old pretty -- pretty soon 16 but I don't want to ask my -- don't want to talk about my 17 age because there are too many ladies in here, but I'll 18 be turning fifty-eight (58). But I've been asked a 19 question. 20 But I live -- that's where I live. And I 21 -- that's just like Francis is in -- is in this building 22 -- that's where I used to trap. That's where I used to 23 trap for fur bearing animals. And also -- and at the end 24 of Wha ti I have hunt, fished and trapped. 25 The Elder behind you with the red cap,

1 that's where I used to go to. That's where I used to go 2 to. And I used to went all the way to the Great Bear 3 Lake, and we used to use -- we used to use Ski-Doo. And 4 this is what -- how we -- we used to go to the -- the 5 Great Bear Lake to Dele -- 6 I know sometimes it is -- it's not nice -- 7 it's not nice when you -- when you tell a lie the -- the 8 kind of things they used to do. But I -- I've been to 9 the old mine. There are a lot of old abandoned mines all 10 the way right down to -- there are a lot of -- there is 11 some -- there is some things that they put -- put into 12 the water, about all those cyanide. We have -- I have 13 seen that. But people -- and I know that people Deninu 14 will be affected before -- I know that they have a lot of 15 biologists, Madam Chairman, and you were there. 16 We did see and seeing a -- old abandoned 17 mine, I am not full of it. I have seen and witnessed and 18 seen all the steel with my own eyes. And I used to go 19 all the Baird river (phonetic) -- there's a river, that's 20 where -- a traditional trail all the way to Mesa Lake 21 (phonetic). 22 There are a lot of old abandoned mines. 23 Some of those -- but today -- but today I'm just -- I'm 24 just asking, it's got nothing to do with the water 25 hearing or the Diavik, but I'm just talking about telling

1 a story, the kind of things I been. 2 And I know that from Colomac all the way 3 to Wekweti I have seen -- seen a lot of old abandoned 4 stuff around. And also that when you see the -- all the 5 way -- the winter road, you go and see a lot of these 6 things and from -- and also -- but the traditional trail 7 of Monfwy there are a lot of old -- where people go to 8 prospect and all that, we've seen a lot of abandoned 9 stuff and so forth. 10 It's like if you look -- but I can't -- I 11 can't -- you know when you get my age you can't see too 12 close. This is -- this is a courageous -- this -- my 13 friend and I here we used to -- we used to -- when you 14 trap out in the land you go all over. I used to -- there 15 are a lot of old tent frames, a lot of old barrels around 16 that place. 17 When you think about -- about when you -- 18 either you talk -- you guys you have a whole bunch of 19 scientists, you seem to be very knowledgeable and aware 20 of a lot of things. But now when you look -- now we have 21 global warming but now it seems to get warmer every year 22 and things -- a lot of things are going thaw out and soon 23 it will be warmer. It's going to be warmer every year. 24 Nobody talked about it with all the 25 climate changes. But last year the -- this is -- but

1 then now the -- the -- now that the water level keeps 2 dropping and -- and my -- when you look at my dock the 3 water level -- but last -- last year that -- now that the 4 water level has gone up. 5 This -- what I'm saying, about what's -- 6 what's happening. But now that the -- like if you -- 7 what about -- the ice, in the arctic, ever melts. The -- 8 this -- when we had the bergs we had talked about. But 9 if the Inuit people are not well aware there's going to 10 be -- a low level land will be flooded, this is what 11 they're talking about when the ice -- arctic ice ever 12 melts. 13 But people live at the -- but of how -- 14 how it will affect -- look -- look at the east island. 15 About the -- about next five (5) years they're talking 16 about the water licence. They're -- they're talking 17 about the -- talking about the water licence for the next 18 five (5) years. We don't even know what tomorrow will be 19 like, but now the global warming, weather changes and a 20 lot of things that have changed over the years. 21 Now, that they -- this young lady asked 22 him about the old uranium mine at the Rayrock Mine. We 23 can't go to the old uranium mine at Rayrock, but the 24 winter road has been changed. We can't go there. We 25 cannot use that area. But now that land, that area will

1 not be -- it's not usable. People can't hunt, fish, and 2 trap. They can't go there because there's a very 3 dangerous and unsafe area to go to. 4 Now that you look at the old abandoned 5 mine at the Colomac it's the same thing, but now -- but 6 this -- I know what I'm talking about. It's got nothing 7 to do with the water licence we're talking about here. 8 Now that you talk about the Snare Hydro 9 but -- but there were three (3) lakes. People live here, 10 they do not know that the Snare -- the river flows and 11 also that -- and I know that there are a lot of burial -- 12 some burial sites that are under the water and they just 13 flood that area. 14 When we talk about -- when we talk about 15 our land we do care for our land. We do love our land. 16 Rachel -- but maybe the kind of thing that you have 17 asked me, maybe I did not respond to the kind of question 18 you have asked me but -- but I'm talking about some of 19 these Board Members here. 20 If you look around this area all -- all 21 this area where the Monfwy that had told about, we live 22 in that area. There are a lot of people there. They -- 23 some of these -- even for money they do some of this -- 24 industry mining companies, they do the kind of the 25 things, these kinds of things they want to do without our