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Opinion Canada must clean-up its colonial marine pollution liability laws

Chief Councillor Marilyn Slett in October, 2018.

JONATHAN HAYWARD/The Canadian Press

Marilyn Slett is the Chief Councillor of the Heiltsuk Nation, whose territory encompasses 16,658 square kilometres of land and water on the Central Coast of British Columbia.

Leaders from the Heiltsuk Nation and the government of Canada signed the groundbreaking Haíɫcístut Incremental House Post Agreement last Thursday, which was the product of a Heiltsuk-led reconciliation process. “Haíɫcístut” is a potlatch term that means to turn something around and make it right again. This was one of the first agreements concluded showcasing alternative pathways to reconciliation in Canada. It was a celebratory event for our nation that contrasts sharply with something that took place in our community the week before, and that still requires action from Canada to make right.

On July 16, Kirby Corp., a multibillion-dollar U.S. company and the largest tank-barge operator in the United States, was fined $2.9-million for environmental and navigation charges related to the sinking of one of its tugboat barges and subsequent diesel spill in Heiltsuk territory.

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The fine was as a drop in the bucket for the company. When the Nathan E. Stewart sank, it spilled more than 110,000 litres of diesel and lubricant oil into one of the most productive and sacred marine environments in our territory. Overnight, we lost clam beds, fishing grounds and one of our most important cultural sites.

Compensating a coastal community for such a loss should be relatively straightforward; after all, Canada likes to pride itself on its “world class” system for oil-spill response. Taking care of oil spills should be part of that response. Unfortunately, as the Heiltsuk have learned through a civil case, the pursuit of justice is something that’s carried on the backs of our community, while the polluter continues its business of transporting oil along the B.C. coastline.

Canada’s marine liability laws are older, at least in spirit, than the ships that first brought European explorers to the shores of Heiltsuk territory in the late 1700s. Marine liability law was first codified during the reign of King Louis XIV of France in the 17th century. At the core of this law is the idea that it is in the public interest to limit the liability of individual ship owners.

Whether the public interest is still served by modern-day shipping companies receiving liability protection is a debate worth having. The problem Indigenous coastal communities face today is that Canada adopted these liability limitations without consulting or considering us (instead they were making laws to colonize Indigenous peoples). As such, liability laws were not designed with a view to claims for compensation based on Aboriginal rights and title under Section 35 of the Constitution Act, 1982.

For example, Canada’s Marine Liability Act, and the conventions to which it gives force of law, do not allow for claims relating to “impairment of the environment,” except where claims involve “loss of profit.” This has two serious effects on Indigenous coastal communities.

First, while losses of commercial fishermen are covered when a spill impairs the environment, the definition of “pollution damage” does not include communal non-profit food harvesting and social or ceremonial activities. This means the vast majority of losses and harms Indigenous peoples suffer are not covered by either the shipowner or the funds the act specifies for such pollution events. Maritime communities rely on a healthy ocean to survive, and to live to be healthy. The Marine Liability Act excludes our way of life.

A second impact is that Indigenous peoples on the coast claim title to seabed and foreshore areas within our traditional territories. When oil spills pollute these marine areas, they damage Indigenous property. However, since the definition of “pollution damage” excludes compensation for impairment of the environment alone, such damage is non-compensable. This injustice is further deepened by the fact that Indigenous peoples – people who are the descendants of 700 generations, whose ancestors exercised sovereign authority and ownership over our land and waters – are forced to “prove” our Aboriginal title in court before our rights are recognized at all.

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The end result of this is that Canada is infringing on Indigenous rights and title that predate and survive the assertion of European sovereignty by drastically impairing the ability of Indigenous peoples to receive full compensation for harms caused by oil spills. This is at a time when the Canadian government is approving major new pipelines and oil-tanker traffic, including the expansion of the Trans Mountain pipeline.

Canada must apply the same principle of Haíɫcístut to decolonize its marine pollution laws by consulting with Indigenous and non-Indigenous coastal communities before another spill happens. This means accounting for actual losses, including impact on Indigenous rights and title.

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