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Protecting place,pursuing justice:Continuing theconversation withJessie Housty

In part two of our interview with Heiltsuk Tribal Council Member Jessie Housty, Housty describes the process that led Heiltsuk First Nation to investigate and eventually litigate the 2016 diesel spill in the nation’s unceded territorial waters.

On October 13, 2016, the American-owned articulated tug barge (ATB), the Nathan E. Stewart ran aground in the unceded territory of the Heiltsuk First Nation, unleashing an diesel spill and a chain of events the impacts of which the Bella Bella community still contends with today. In part one of this interview, Jessie Housty details the first 48 hours after the Nathan E. Stewart spill, the Heiltsuk Nation’s response, and spill’s indelible impacts. The conversation continues below with Ecotrust’s Lisa Watt and Doe Hatfield.

In Spring 2017, Heiltsuk released a report on its own investigation of the October 13, 2016 diesel spill in Seaforth Channel of the BC central coast. What prompted Heiltsuk to conduct its own investigation?

Following the spill, people were coming in from the outside and exercising total authority over the federal investigation without feeling any responsibility to include the people whose territory the spill occurred. Meanwhile, we were denied our request to interview the Nathan E. Stewart crew or to sit in on the Transportation Safety Board’s interviews with the crew. We were expected to comply with the federal government’s investigation without any information being disclosed to us. We knew the incident would need to be investigated properly and it was made clear to us that it would not happen collaboratively: so we conducted our own investigation.

“When assessing damages in an incident like this, there’s no real precedent for how to assess cultural damages.”

A number of Heiltsuk members were the first people on the scene where the grounding occurred. We spent a lot of time teasing out what happened in those first 48 hours through eyewitness testimony from our first responders, capturing both the circumstances of the early response and the way the external agencies were conducting themselves here. That was important to us because this is our territory. We have governance authority over our territory. We knew that we had to capture that information in a thorough and powerful way to serve as a foundation for the work still ahead for us.

A barge pulls the sunken tug vessel, Nathan E. Stewart, from the waters of the Seaforth Channel. Photo courtesy of Heiltsuk Nation

The investigation report is an important work and I encourage people to read it, or at the very least your valuable executive summary. One part of the report that struck me was this statement: “Heiltsuk has never surrendered their ancient rights to the lands and marine areas of their traditional territories nor their duty to look after them.” Tell us about that duty. What does that responsibility mean?

If you look at our Heiltsuk governance system, our authority comes from the places we are connected to and our reciprocal relationship with those places. We have a responsibility to take care of the places and species that take care of us. That’s something Heiltsuk Nation feels very strongly about. If you look today at the investment we’ve made in our stewardship office, our Coastal Guardian Watchmen, and our capacity to work on the ground to do effective land and marine management, you will see that we are a nation that is investing a lot of time, energy, and resources to take good care of our territory. The way that manifests is in leadership and technical staff that are always working hard to take care of our territory with the best possible tools we have available, tools that look different from those our ancestors used but are rooted in the same fundamental values.

In October of last year, Heiltsuk filed a lawsuit against the tug’s American owner Kirby Corporation, the attorney general of BC, and the attorney general of Canada. What were the circumstances that led to this action?

Over the past two years, we really hoped and believed that we would be able to amicably come to some understanding with BC, Canada, and the polluter about how we were going to move forward. But that simply has not happened. We felt like we really had no choice. If we wanted to protect our interests and community, we had to file a lawsuit.

There are a lot of issues we hope to address with this legal action. In Canada, we supposedly have a great “polluter pays” system in the event of a spill. But it’s still extremely difficult to get the polluter to pay, and there is a limit to how much they can be asked to pay. This limited liability is a piece of the lawsuit.

The black back and dorsal fin of an Orca whale seen above the water
An orca surfaces near the location where the Nathan E. Stewart ran aground in Seaforth Channel. Photo by April Bencze

“We can talk about how the circumstances of the spill contravened provincial and federal laws or regulations, but there is Heiltsuk law that applies in Heiltsuk territory and it cannot be ignored.”

We also feel like it is important to assert that this is our territory. It’s a place we have always been and remain connected to, since the time of creation. It is within our authority to govern, manage, and protect it. We expect that to be recognized by Canada, which is why part of the lawsuit relates to questions of title, not just to the terrestrial area adjacent to the spill but also title to the intertidal and marine areas impacted by the spill. The question of marine title is relatively untested, and it’s a piece of the lawsuit.

And when assessing damages in an incident like this, there’s no real precedent for how to assess cultural damages. It is relatively simple to look at a local commercial clam fishery, for example, and to do the math of licenses and quota and market value to put a reasonably accurate dollar value on that fishery. But how do you capture the value of all the other ways we interact with that place? On food security, the social connections built by trading what we harvest, the ceremonial connections built by gifting those resources in a potlatch, the restorative justice and healing programs that happen there? Those non-commercial aspects of our relationship to Gale Creek are crucial. Just because they’re intangible doesn’t mean those cultural losses can be swept under the rug. If you don’t live with all those connections deep in the marrow of your bones, it can be hard for people to understand how real those connections are in our day to day lives. But the cultural losses piece is a critical piece of the lawsuit.

The financial cost of taking on a big court challenge like this is enormous.

Let’s imagine, Heiltsuk wins the court case. What does a just resolution look like?

The case filed under Canadian law is important, but it’s not the only path to a just resolution. Following the completion of our investigation report, we assembled a committee of Heiltsuk knowledge keepers who deliberated over all the pertinent information to assess whether any of the actions contravened Heiltsuk law. We can talk about how the circumstances of the spill contravened provincial and federal laws or regulations, but there is Heiltsuk law that applies in Heiltsuk territory and it cannot be ignored.

“You don’t get to choose when you are called to service. When you are tapped to do work in service of community, you do it.”

Unsurprisingly, the Heiltsuk adjudication committee found that a number of our laws were violated in the first 48 hours after the spill by a number of responding agencies. Their adjudication report includes recommendations that are important for the offenders to address in order to make things right.

There is no way to undo the harm that was done. There are no quick fixes or ruling to make it go back to the way it was. But it’s important that we understand the importance of Heiltsuk law, restorative justice, and how offenders can make amends to the people and the land, guided by the knowledge keepers who are the moral compass of our nation. This process embodies the power and vitality of Heiltsuk law.

The legal action you are taking is another in many bold steps your nation has walked. What motivates you to stand up and be heard, to be an activist, and a responder?

It’s been made really clear to me by elders and matriarchs in my community that you don’t get to choose when you are called to service. When you are tapped to do work in service of community, you do it. It’s clear to me that this is the path I need to be on. This is where I should be investing my time and energy right now. I feel honored to do this work, even when it is difficult, because it is work in service of a community that gives so much back to me.

Thank you, Jessie.

My thanks to Ecotrust for sharing our story.

This is part two of a two-part interview with Jessie Housty, a Heiltsuk First Nation Tribal Council member and the youngest recipient of the Ecotrust Indigenous Leadership Award (2010). Part one of the interview details the first 48 hours after the Nathan E. Stewart spill, the Heiltsuk Nation’s response, and the indelible impacts on the Bella Bella community that remain two years later.

Readers can support the Heiltsuk civil case against the attorney generals of British Columbia and Canada, and the ATB owner, Houston-based Kirby Corporation, for the loss of aboriginal rights to food, social, and ceremonial harvesting as well as the loss of their commercial harvesting of marine resources after the sinking of the Nathan E. Stewart by making a financial contribution