In October, 2016 a pilotless tug ran aground and spilled over 110,000 liters of diesel oil in Heiltsuk waters on the central coast of British Columbia. The tug and attached barge were carrying diesel through Heiltsuk waters despite Heiltsuk prohibition of oil transport through their marine harvesting areas.
Through inadequate government and corporate response, and despite Heiltsuk responders’ heroic efforts to mitigate the damage, the spill contaminated key shellfish harvesting areas and critical habitat for the Northern abalone. The Heiltsuk suffered a violent disruption to their way of life, their economy, their history and identity, and their spiritual connection to the land. The Heiltsuk had warned the federal government about the risk of oil transport through the stormy passages of the Central Coast. Heiltsuk was one of the Nations that won a landmark case stopping Enbridge Northern Gateway in 2016. Tragically, they are now left dealing with long-term and catastrophic damage to the health of their land, waters, and culture.
On October 13, 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 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 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.
“It was important for us to root our response in a deep love for our lands and waters, and in the strength of the teachings that our ancestors passed down. We know our ancestors were with our first responders, with our incident commander, and with everyone who worked on the Nathan E. Stewart response. We know our ancestors were guiding us.” Chief Harvey Humchitt
Although informed of Heiltsuk’s Aboriginal right of self-government, Kirby and government bodies largely failed or refused to share information and documentation throughout the entire response.
“This is our unceded territory, our jurisdiction. Yet we’ve been largely shut out of information-sharing about an incident that shook our community to the core. The lack of transparency is alarming, and it should alarm every single person who cares about the coast.” Chief Councillor Marilyn Slett
The diesel spill contaminated an ecologically intact area, a rich ecosystem that the Heiltsuk traditionally harvested from using sustainable practices. The Heiltsuk harvested at least 25 food species from the affected area, including commercial harvests of manila clams, red sea urchin, sea cucumber, salmon, and herring spawn on kelp. The affected area is also a significant habitat for sea otters and the Northern abalone, an endangered species. For the Heiltsuk, the spill is a catastrophic loss that will take decades if not generations to heal.
“Where this incident occurred, our people still harvest dozens of marine and intertidal species for sustenance and ceremony and trade. Our people have lived there and relied on the bounty of that place since time immemorial. It is no small thing to violently disrupt tens of thousands of years of Heiltsuk history and identity.” Kelly Brown, Director of the Heiltsuk Integrated Resource Management Department
The Heiltsuk are now preparing a civil case against Kirby to recover damages for loss of Aboriginal rights to Food, Social, and Ceremonial harvesting as well as the loss of their commercial harvesting of marine resources.
The case will raise the constitutionality of Canada’s oil spill liability regime, and will also examine the actual state of Canada’s “world class” oil-spill response system.
“The only thing that was ‘world class’ about the response was the supreme effort of the Heiltsuk responders who were on the water before daybreak the day of the spill, and continue to be the only regular monitors of the spill site.” Chief Councillor Marilyn Slett
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.
The Heiltsuk are preparing a civil case against Kirby to recover damages for loss of Aboriginal rights to Food, Social and Ceremonial harvesting, and the loss of their commercial harvesting of marine resources.
The case will raise the constitutionality of Canada’s oil spill liability regime. The legislative scheme currently in force limits how Indigenous communities can recover for damages to Aboriginal food, social and ceremonial harvesting rights. The Heiltsuk were never consulted on this liability regime which, in effect, carves away their rights without their consent and without recognition of the true losses caused by oil spill disasters.
The case will also examine the actual state of Canada’s “world class” oil-spill response system. The factual exploration arising from the case will hopefully provide a basis for policy-making, law-making and funding decisions with respect to the federal Oceans Protection Plan, and provincial oil response systems. Proof of the poor spill response in this case may support increased environmental awareness, better safety measures and/or restrictions on oil shipping, and real improvements to spill response.
The Heiltsuk are also raising the lack of consultation regarding oil shipments plying Heiltsuk waters, and especially vessels without pilots. The Heiltsuk have repeatedly expressed opposition to tanker and condensate shipping through their territory, and have repeatedly asked for local pilots to be required. Yet the Heiltsuk were never consulted by Canada about the Nathan E. Stewart transporting oil through their territories or doing so without pilots. The federal government had ignored Heiltsuk opposition – their withdrawal of Free, Prior and Informed Consent – and now needs to be brought to court to acknowledge this failure and the cost to the Heiltsuk.
Your donations will fund legal and expert work required to prepare to file a Notice of Civil Claim.
The expert legal work required is the collection of traditional environmental and cultural knowledge to assess the impact on Food, Social and Ceremonial Harvesting.
For legal research, the precedent-setting issues require significant research since these issues have not been decided by a court previously. This will involve Canadian case law as well as international case law, review of scientific and social literature, and discussions with Heiltsuk elders and fishermen about their traditional marine laws.
Heiltsuk Nation’s territory encompasses 16, 658 square kilometres of land as well as extensive nearshore and offshore waters in an area that has only recently come to be known as the Central Coast of BC. Their territorial boundaries are defined by six Heiltsuk tribal groups and extend out into international waters. Marine areas include offshore waters that encompass the Goose Island Group and Banks, as well as Campbell Island and Bella Bella.
The federal government’s tanker ban proposal has yet to be passed as legislation. However, even if the current proposal had been in force at the time of the accident, it would not have barred vessels such as the Nathan E. Stewart. The proposal 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)