RAVEN - Respecting Aboriginal Values and Environmental Needs

Heiltsuk — Step Up for Coast Heroes

 

The Heiltsuk Nation is taking an oil shipping company and Canada to court over a catastrophic diesel oil spill in their territory. The Nathan E. Stewart sank, but the Heiltsuk are rising.

 

The Heiltsuk are taking the polluter, Kirby Corporation, and the federal government to court. RAVEN is raising $425,000 to help fund the case.

Will you stand with the Heiltsuk?

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Raven People Rising is a film chronicling the efforts of Indigenous people to chart a sustainable and just course through the troubled waters of the Great Bear Sea. In this 30 minute film, set in one of the Earth’s last tracts of intact temperate rainforest, meet elders, youth, and tribal leaders who describe a mixed inheritance: on the one hand, the incredible violence of residential schools and cultural erasure, and on the other, an unbroken lineage of ancestral teachings that powerfully connect people to place.

$154,568
OF OUR $425,000 GOAL

 

With their legal challenge, the Heiltsuk Nation are taking power from regulators asleep at the wheel and bringing the responsibility to protect their territory and the ocean back home. 

RAVEN is calling on coast protectors everywhere to DONATE, FUNDRAISE ONLINE and HOST FILM SCREENINGS in your community to raise funds for the Heiltsuk legal challenge. 

The easiest way to support this case is to make a donation right now. 



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In October, 2016 a tug without a certified pilot 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.

 

A win for the Heiltsuk could:

 

  • Toughen oil spill regulations along the whole Pacific coast
  • 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
  • Strengthen Heiltsuk jurisdiction so they can manage their territory according to Heiltsuk laws

 

Frequently Asked Questions

Who are the Heiltsuk?

The present-day Heiltsuk are the main descendants of Hailhzaqvla-speaking peoples who had inhabited an area of approximately 15,500 km2 in the central coastal region of British Columbia for at least 14,000 years. Heiltsuk traditional territory is within the Great Bear Rainforest, located at the heart of where land and sea meet.

The Heiltsuk govern themselves by Gvi’ilas, the laws of their ancestors which govern the relationships between the Heiltsuk and the natural and spiritual world. Gwi’ilas is rooted in a value system that ensures sustainability and respect. Inherent in this is the understanding that all things are connected and that unity is important to maintain. Gwilas requires that the Heiltsuk manage and protect their land, their waters and all living beings within Heiltsuk territory.

Learn more about Heiltsuk history: http://www.heiltsuknation.ca/about-2/history/

Where is Heiltsuk Nation located?

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.

How has the Nathan E. Stewart diesel spill affected Heiltsuk land, waters and community?

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, 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.

What is the case about?

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 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.

What is happening with the case right now?

The Heiltsuk filed a Notice of Civil Claim on October 13, 2019. Once the defendants respond, there will be a series of case management conferences where the judge sets the rules for exchanging evidence. There may also be pre-trial motions and hearings on those motions. Meanwhile, both sides will be gathering evidence and preparing legal arguments for trial. Check our blog section for the latest updates.

Will this case set a precedent?

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
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
Strengthen Heiltsuk jurisdiction so they can manage their territory according to Heiltsuk laws

What kind of evidence will the Heiltsuk need to prove their case?

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 herring spawn-on-kelp (which is an Aboriginal right of the Heiltsuk recognized by the Supreme Court of Canada in 1996), as well as loss to the Heiltsuk economy and livelihoods. This will require ongoing monitoring and an comprehensive assessment of the environmental and social damage caused by the spill.

Not only has Canada and BC not conducted an environmental assessment of the damage caused in Canadian waters by a foreign vessel, it has 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.

How much money is needed to bring the case to trial?

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.

For 2019, RAVEN has set the goal of raising $300,000 for the Heiltsuk case, which is roughly half of what the Heiltsuk expect the case to cost in 2019.

How much has already been raised, and what was it used for?

As of December 2019, RAVEN has raised $128,000. This money funded legal and expert work required to prepare and file a Notice of Civil Claim.

Since the spill, the Heiltsuk conducted their own independent inquiry into the incident which was followed by two reports from Canadian and US authorities, and a legal analysis of the incident according to Gwi’las, Heiltsuk law. Meanwhile, the Heiltsuk legal team conducted significant research into Canadian case law and international case law. All of this research informed the legal action taken by Heiltsuk on October 13, 2018, on the second anniversary of the spill.

Isn’t there an oil tanker ban on B.C.’s north coast?

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)


The Story of a Spill

 

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 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, 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, 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.

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. Instead, the U.S.-owned corporation would like to proceed with a limited Environmental Impact Assessment, looking only at sampling and monitoring work conducted in a short period of time after the oil spill and a short period in early 2017. The B.C. Ministry of Environment and Kirby Corporation have been in secret discussions on the Environmental Impact Assessment and come to an agreement without Heiltsuk engagement.

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

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.

“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

 

Building on the work of the comprehensive impact assessment work, the Heiltsuk are also 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 also raise the constitutionality of Canada’s oil spill liability regime, and 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

 

​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.

The federal government had ignored Heiltsuk opposition – their withdrawal of Free Prior and Informed Consent – and now needs to be brought to acknowledge this failure and the cost 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.

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