Heiltsuk Nation’s territory encompasses 16, 658 square kilometres of land as well as extensive foreshore, seabed, nearshore and offshore waters in an area that has only recently come to be known as the Central Coast of BC. Heiltsuk territory extends north from the southern tip of Calvert Island to Klekane Inlet, east to the head of Dean Channel, and to the offshore area west of Goose Island, Aristazabal Island, and Calvert Island, and includes the intervening inlets, channels, islands, and waterways. Marine areas include offshore waters that encompass the Goose Island Group and Banks, as well as Campbell Island and Bella Bella.

On October 13, 2016, the US-based tug Nathan E. Stewart was travelling along the B.C. Central Coast without a certified pilot. The tug and barge ran aground in Seaforth Channel, approximately 11.5 nautical miles from Bella Bella, the main community on Heiltsuk territory. The tug sank and spilled over 110,000 litres of diesel oil at the mouth of Gale Creek and into the waters, adjacent to an ancient Heiltsuk village site and Heiltsuk marine harvesting area.

The second mate, who was on watch during the night of October 12, fell asleep and missed a crucial course change into Seaforth Channel, which resulted in the vessel running aground. There was no second person on watch as required by federal Marine Personnel Regulations, as well as Kirby’s own Safety Management System. 

The navigational alarms were not used, and a bridge navigational watch alarm system (BNWAS) was not available. The use of these could have prevented the second mate from falling asleep and/or alerted other crew members in time to correct course. 

(Based on post-incident investigation reports by the Transportation Board of Canada, and the US National Transportation Safety Board)

The Heiltsuk were first responders in the early morning hours of October 13. Through the day, as other responders flailed in confusion, the Heiltsuk quietly tried to do what was needed to reduce harm to their land and waters. Heiltsuk offered their traditional knowledge of the area to the Coast Guard, but were ignored until late into the afternoon when it became clear that local knowledge about the area was critical. The Heiltsuk requested booms be laid out immediately but their request was initially met with silence; then with the advice that booms were not on site; then with communications that the authority to lay booms was with Western Canada Marine Response Corporation (WCMRC) or Kirby, who were not at the site. When booms became available, there were not enough or they were damaged, and finally, after booms were laid, they broke apart or were washed by the oiled waves. Responders were not provided with personal protective equipment, or advised of health consequences of exposure to diesel.

Approximately 110,000 litres of oil were not recoverable and were left in the environment; 119,000 litres of oil were recovered from the tug.

(Based on Heiltsuk Tribal Council’s Investigative Report and the post-incident report by the Transport Board of Canada)

The diesel spill contaminated an ecologically intact area, a rich ecosystem that, until the spill, the Heiltsuk had harvested using traditional, sustainable practices for millennia. 

The Heiltsuk harvested at least 25 food species from the affected area, including commercial harvests of manila clams, halibut, red sea urchin, sea cucumber, salmon, and herring spawn on kelp. The affected area is also a significant habitat for recovering sea otters and the Northern Abalone, an endangered species.

Tragically, the Heiltsuk are left dealing with long-term and catastrophic damage to the health of their land, waters, and culture. This will take decades and several generations to heal.

The Heiltsuk are taking legal action against Kirby Corporation, Canada and B.C. They filed a Notice of Civil Claim on October 13, 2018. 

The decision to take legal action in Canadian courts was made based on Heiltsuk Nation’s investigation and adjudication process carried out according to Heiltsuk Ǧviḷ̓ás (legal order). This process and its findings are contained in a May 2018 report, “Dáduqvḷá1 qṇtxv Ǧviḷ̓ásax̌ - To look at our traditional laws”. 

A specially appointed committee that included Hereditary Chiefs, as well as representatives of Elders, youth and urban Heiltsuk, made findings on how Ǧviḷ̓ás was breached by Kirby and government agencies, and the harms that were caused. It also named the ways Ǧviḷ̓ás was upheld by Heiltsuk first responders and Heiltsuk Nation.

On October 13, 2016, the tug Nathan E. Stewart ran aground in Seaforth Channel in Heiltsuk territory and sank. The tug spilled over 110,000 litres of diesel oil at the mouth of Gale Creek and into the waters, adjacent to an ancient Heiltsuk village site and Heiltsuk marine harvesting area.

The Heiltsuk filed a Notice of Civil Claim on October 13, 2018. 

The Heiltsuk are suing the owner of the tug, Kirby Corporation, and the governments of Canada and B.C. Their case seeks to challenge the constitutionality of Canada’s oil spill response; compensate the Heiltsuk for cultural and economic losses due to the spill; and establish Heiltsuk Aboriginal title to reserve lands, near-shore and seabed in Seaforth Channel and surrounding areas.

The case will see the Heiltsuk raise the lack of consultation regarding oil shipments plying Heiltsuk waters, and especially vessels without pilots. Though the Heiltsuk have repeatedly expressed opposition to tanker and condensate shipping through their waters, they were never consulted by the federal government about the Nathan E. Stewart transporting oil through their territories or doing so without pilots. The federal government ignored Heiltsuk opposition – their withdrawal of Free, Prior and Informed Consent – and now will be brought to court to acknowledge this failure and the costs to the Heiltsuk.

This tragedy is the direct result of the federal government failing to fulfill its constitutional duty to the Heiltsuk. It must stand as a warning for the future: lest it happen again.

A win for the Heiltsuk could: 

• Toughen oil spill regulations along the whole Pacific coast
• Strengthen Heiltsuk jurisdiction so they can manage their territory according to Heiltsuk laws
• Set legal precedents for:
  • • Aboriginal title to the foreshore and seabed
    • Aboriginal governance rights that protects the ecosystem and its resources
    • BC and Canada to be required to consult with Indigenous peoples on the environmental impact assessment and remediation following an oil spill  
    • Deterrence of oil spills by establishing cultural damages.

Several aspects of the case are precedent-setting. The case will challenge the constitutionality of Canada’s oil spill regime in the light of Sec. 35 of the Constitution and Canada’s obligations to Aboriginal peoples. A win for the Heiltsuk would mean that current law and practice, which fails to consult with coastal First Peoples on marine safety, or to involve them in marine spill response, would have to change to conform to the Constitution.

“From the legal perspective, the law that we would seek to make would be a game changer for any oil spill on any First Nations territory. So it impacts the law, marine law, period.” – Lisa Fong, legal counsel for Heiltsuk Nation

Perhaps the biggest precedent-setting potential of this case is the issue of Aboriginal title to the near-shore and seabed. This is the first time this issue will be litigated in a Canadian court. Historically in British Columbia, colonial jurisdiction over coastal waters has been divided between the federal government and the province. The federal government is in charge of the seabed under open ocean up to twelve nautical miles from the outside shore, and the ocean to 200 nautical miles from the shore; British Columbia controls the foreshore between the low–tide and high–tide marks, and inland marine waters “within the jaws of land”. This division ignores pre-existing Aboriginal title. If the Heiltsuk prove Aboriginal title in court, the federal and provincial government will have to accommodate Heiltsuk jurisdiction.

A win for the Heiltsuk could: 

• Toughen oil spill regulations along the whole Pacific coast
• Strengthen Heiltsuk jurisdiction so they can manage their territory according to Heiltsuk laws
• Set legal precedents for:
  • • Aboriginal title to the foreshore and seabed
    • Aboriginal governance rights that protects the ecosystem and its resources
    • BC and Canada to be required to consult with Indigenous peoples on the environmental impact assessment and remediation following an oil spill  
    • Deterrence of oil spills by establishing cultural damages. 

The Heiltsuk will need to show strong evidence of damage to marine resources and community health; a loss of Food, Social and Ceremonial Harvesting, as well as commercial harvesting of clams herring spawn-on-kelp, as well as loss to the Heiltsuk economy and livelihoods. This will require ongoing monitoring and a comprehensive assessment of the environmental and social damage caused by the spill. 

Not only have Canada and B.C. not conducted an environmental assessment of the damage caused in Canadian waters by a foreign vessel, they have attempted to shrug off this responsibility onto Kirby Corporation – the polluter itself. This means that Heiltsuk are now the only ones bearing the burden of investigating the true impacts of the spill not only for themselves but on behalf of all Canadians.

For the title portion of the case the Heiltsuk will need to present testimony of elders and other community members as well as provide expert reports on the ongoing use and occupation of their territory, including the marine areas where they have suffered damages.

To date, Kirby Corporation has been unwilling to meet Heiltsuk requests for comprehensive post-spill research or a health impact assessment. Technically, impact assessments are not a required part of the federal and provincial government’s “world class” oil spill response. BC, Canada and the polluter have failed to offer to pay for and ensure that an environmental impact assessment occurs.

In light of this inadequate and exclusionary approach, the Heiltsuk are proceeding with their own Indigenous-led impact assessment that includes a Western science component and a traditional knowledge component.

The Western science component will rely on the biological sciences to help determine the current and long-term impacts of the spill on the health of the ecosystem and marine resources. The traditional assessment is based on Heiltsuk knowledge and will seek to understand how long it will be before harvesting can safely and sustainably begin again. Finally, the health impact assessment will be based on health, social science, and first-person research used to determine the impacts of the events on Heiltsuk people. These include the social and economic consequences associated with the loss of harvest and the use of the impacted area.

According to the Heiltsuk legal counsel Lisa Fong, this is a complex case that will take several years to litigate. The Notice of Civil Claim was filed on October 13, 2018. The ultimate amount of legal costs depends on many factors that are not within the control of the Heiltsuk, notably any pre-trial motions brought by the Kirby Corporation, Canada or the other defendants. For their part, the Heiltsuk will need to prove the magnitude of the damage. This will require a lot of expert work in different areas (chemistry, fisheries biologists, medicine, etc.) which is typically expensive.

The federal government’s tanker ban, even had it been in force back in 2016, would not have barred vessels such as the Nathan E. Stewart. The tanker ban contains numerous loopholes and exclusions that allow for the continued transport of oil on B.C.’s north coast via foreign fuel barges and even, potentially, in supertankers full of refined oil products like jet fuel. (Source: “Will the Pacific North Coast Oil Tanker Ban Hold Water?”, analysis by West Coast Environmental Law)

All the funds raised for Heiltsuk Nation campaign go to Indigenous litigation. 85% of the funds raised go to Heilstuk Nation to fund their legal challenge. RAVEN receives 15% of campaign funds raised to sustain our operations.

If a legal challenge is terminated, and the money raised exceeds the litigation expenses, we place the remaining funds into the Discretionary Litigation Fund. We use the money in the Discretionary Litigation Fund to add funds to any of our litigation campaigns that need extra funds for any reason (e.g. to respond to a Crown motion, or to commission additional expert reports).