PHOTO: KYLE ARTELLE PHOTO: KYLE HEILTSUK TRIBAL COUNCIL INVESTIGATION REPORT: The 48 hours after the grounding of the Nathan E. Stewart and its oil spill MARCH 2017 HEILTSUK NATION PHOTO: APRIL BENCZE A life ring from the Nathan E. Stewart floating in sheen of diesel oil. **Details regarding the photographs contained in this report are contained in the Schedule of Photographs located at the end of this document. TABLE OF CONTENTS 1.0 GLOSSARY 4 6.0 HEILTSUK NATION’S POSITION 31 1.1. GLOSSARY OF ORGANIZATIONS 4 ON OIL TANKERS 1.2. GLOSSARY OF VESSELS 4 6.1. MARINE USE PLAN 31 1.3. LIST OF SCHEDULES 5 6.2. SUPPORT FOR A TANKER 31 MORATORIUM 2.0 HEILTSUK NATION JURISDICTION 7 6.3. ENBRIDGE NORTHERN GATEWAY 31 PIPELINE PROJECT 3.0 INVESTIGATION 9 3.1. DOCUMENTS 9 7.0 GALE PASS AND SEAFORTH 32 3.1.1. Requests 9 CHANNEL 3.1.2. Limited Access to 16 7.1. LOCATION OF INCIDENT 32 IAP Software 7.2. CHIEFTAINSHIP OF AREA 33 3.2. INTERVIEWS 16 3.2.1. Requests 16 8.0 EVENTS OF OCTOBER 13, 2016 36 3.2.2. Witnesses 16 (DAY 1) 8.1. CHRONOLOGY OF EVENTS 36 4.0 NATHAN E. STEWART AND DBL-55 17 8.2. SPECIFIC ISSUES 42 4.1. KIRBY CORPORATION 17 4.1.1. Tug and Barge Business 17 9.0 EVENTS OF OCTOBER 14, 2016 44 4.1.2. Oil Spill History 18 (DAY 2) 4.2. NATHAN E. STEWART AND DBL-55 20 9.1. CHRONOLOGY OF EVENTS 44 4.2.1. HTC Inspection 20 9.2. SPECIFIC ISSUES 46 4.2.2. Tug Particulars 21 10.0 INTERVIEWS 48 4.2.3. Barge Particulars 22 4.2.4. Articulated Tug and 22 11.0 OVERVIEW OF LATER EVENTS 71 Barge (ATB) 4.3. ADDITIONAL INFORMATION ON THE NATHAN E. STEWART AND DBL-55 23 4.3.1. Oil Spill History of the NES 23 4.3.2. Route 24 4.4. PACIFIC PILOTAGE AUTHORITY 25 5.0 WORLD CLASS SPILL RESPONSE 27 5.1. CANADA 27 5.1.1. Background 27 5.1.2. Spill Response Requirements 27 5.1.3. Liability and Compensation 28 5.1.4. No Consultation 28 5.2. BRITISH COLUMBIA 28 5.2.1. Background 28 5.2.2. Amendments 28 (Not Yet In Force) 5.2.3. No Consultation 29 5.3. AFTER THE OIL SPILL 30 1.0 GLOSSARY 1.1. GLOSSARY OF ORGANIZATIONS 1. The organizations involved in the Incident and response during the first forty-eight hours are referred to as follows: HTC Heiltsuk Tribal Council HIRMD Heiltsuk Integrated Resource Management Department Coast Guard The Canadian Coast Guard DFO Department of Fisheries and Oceans Kirby Kirby Corporation including subsidiaries, owners of Nathan E. Stewart and DBL-55 MOE British Columbia Ministry of Environment TC Transport Canada TRG The Response Group a contractor of Kirby TSB Transportation Safety Board of Canada UC Unified Command, consisting of 1 representative from each of four organizations (HTC, Kirby, federal and provincial governments) USCG United States Coast Guard WCMRC Western Canada Marine Response Corporation 1.2. GLOSSARY OF VESSELS 2. The non-Heiltsuk vessels involved in the Incident and response during the first forty-eight hours are as follows: Kirby vessels NES Nathan E. Stewart, owned by Kirby Coast Guard vessels Bartlett Coast Guard Bartlett 1 Coast Guard (workboat) Cape Farewell Coast Guard Cape St. James Coast Guard John P. Tully Coast Guard Shearwater vessels Central Coaster Shearwater Clowhom Spirit Shearwater (operating on behalf of WCMRC) Gulf Rival Shearwater Haisea Guardian Shearwater Mar-Ell Mist Shearwater (operating on behalf of WCMRC) Other vessels Eagle Bay WCMRC Diligence North Arm Transportation Inkster RCMP *** All Heiltsuk vessels are referred to as such. 4 INVESTIGATION REPORT: THE 48 HOURS AFTER THE GROUNDING OF THE NATHAN E. STEWART AND ITS OIL SPILL 1.3. LIST OF SCHEDULES SCHEDULE DATE ITEM PAGE NO. 1 Oct. 17, 2016 – Emails between L. Fong & Coast Guard re Requests for 76 Oct. 20, 2016 Documents 2 Oct. 15, 2016 Search and Rescue (SAR) Mission Report (Coast Guard) 77 3 Oct. 17, 2016 Emails between L. Fong & W. Braul et al, re request for 78 access to crew by Heiltsuk; request for documents 4 Oct. 18, 2016 Letter from L. Fong to R. Dick, TC re Heiltsuk Access to 79 Information and TC’s Communication 5 Oct. 28, 2016 Letter from R. Dick, TC to L. Fong re response to Oct. 17/18th 79 emails requesting disclosure; disclosure to be discussed 6 Oct. 28, 2016 Letter from A. Callicum to TC re request for TC to disclose 80 information within its possession & control 7 Nov. 10, 2016 Emails between D. Bertrand and R. Dick, TC re reiterating 81 Oct. 28th requests and confirmation of an intention to discuss possible approaches 8 Dec. 13, 2016 Letter from R. Dick, TC to Chief Slett re declining to disclose 81 information due to TSB investigation 9 Nov. 13, 2016 – Emails between L. Fong & D. Rossi re HTC request for 82 Nov. 15, 2016 information regarding the specifications for the Tug & Barge 10 Oct. 28, 2016 – Emails Y. Myers,TC to K. Seaby re suggestion for HTC to 82 Nov. 17, 2016 make request for specifications for the Tug & Barge to Kirby 11 Oct. 28, 2016 Emails L. Fong & K. Seaby with Y. Myers, TC et al re 84 inspection of Barge by HTC representatives and D. Rossi’s objection to disclosure of documents 12 Nov. 24, 2016 Email request by D. Jones on behalf of HTC to D. Rossi for 85 & Jan. 11, 2017 specifics re the Tug & Barge 13 Dec. 5, 2016 – W. Braul Email response to D. Bertrand – Kirby denies HTC’s 86 Dec. 14, 2016 request for documents due to TSB investigation 14 Dec. 5, 2016 Letter D. Bertrand to W. Braul re request for information and 86 documents 15 Dec. 5, 2016 Letter D. Bertrand to P. Huot, TSB re request for information 87 and documentation in their possession 16 Jan. 9, 2017 Letter from M. Poisson, TSB to D. Bertrand re denying HTC’s 88 request to attend as an observer at the investigations of the sinking of the Nathan E. Stewart 17 Dec. 5, 2016 Letter from D. Bertrand to R. Dick, TC re follow-up to Oct. 89 28, 2016 request for documents for which access was refused INVESTIGATION REPORT: THE 48 HOURS AFTER THE GROUNDING OF THE NATHAN E. STEWART AND ITS OIL SPILL 5 SCHEDULE DATE ITEM PAGE NO. 18 Oct. 15, 2016 Letter from Chief Slett to Kirby Offshore re HTC formally 89 requests to interview the crew of the Nathan E. Stewart (the “Crew”) as soon as possible and before they depart Bella Bella 19 Oct. 15, 2016 Letter from Chief Slett to Coast Guard re HTC formally 89 requests to interview the Crew as soon as possible and before they depart Bella Bella 20 Oct. 16, 2016 – Emails between Coast Guard and L. Fong re Coast Guard 90 Oct. 18, 2016 denying HTC’s request to interview the Crew 21 Jan. 13, 2017 NATHAN E STEWART DBL-55 - 91 Damage Survey Report (Rev1) IMC Ref. 10807.16.63 22 Nov. 9, 2016 – Emails between Y. Myers, TC, D. Rossi and L. Fong re HTC and 97 Nov. 10, 2016 HTC’s Marine Surveyor denied access to inspect the Barge 23 Nov. 9, 2016 – Emails between D. Rossi, Y. Myers, TC & L. Fong re Access 98 Nov. 10, 2016 To Barge; L. Fong denying HTC access to barge is the opposite of collaboration 24 Dec. 21, 2011 Alaska Department of Environmental Conservation Situation 100 Report re the Nathan E. Stewart 25 Feb. 9, 2015 Letter Kirby to PPA re Pilotage Waiver Renewal Request 101 26 Feb. 24, 2016 Letter from I. Forget, PPA to Kirby re Renewal of Waiver 102 Confirmation until March 1, 2017 27 Oct. 16, 2016 Letter from PPA to Kirby re Kirby Waiver Revoked as of Oct. 103 16, 2016 (redacted version) 28 Oct. 26, 2016 Email from B. Young, PPA to Chief Slett re Copy of Letter 103 Revoking Kirby’s Waiver 29 Oct. 24, 206 NEWS RELEASE PPA re New and Interim Measures for 104 Waiver System 30 Current Central Coast First Nation Marine Use Plan - Executive Summary 105 31 June 23, 2016 Gitxaala Nation v. Canada 2016 FCA 187 113 32 Oct. 15, 2016 Unified Command Situation Report 09:30am 137 33 N/A RIR 16-020 NES (AIS track history FRE-SFC 1) 139 34 N/A RIR 16-020 NES (AIS track history FRE-SFC 2) 139 35 Jan. 16, 2017 ICS 201-2 - Summary of Current Actions – Initial Response 140 for Oct. 14, 2016 36 Oct. 13, 2016 AIS picture of the Nathan E. Stewart wreck location and track 141 (Ingmar Lee) 37 N/A Area 7 - Pacific Region Sanitary Closures and Emergency 141 Closure Areas 38 Nov. 19, 2016 Unified Command Situation Report 1700 HRS 142 6 INVESTIGATION REPORT: THE 48 HOURS AFTER THE GROUNDING OF THE NATHAN E. STEWART AND ITS OIL SPILL 2.0 HEILTSUK NATION JURISDICTION 3. Shortly after 1:00 a.m. on October 13, 2016, the Nathan E. Stewart (“NES”), the tug connected to the barge DBL-55 (the “Barge”), and together known as an Articulated Tug-Barge (“ATB”),ran aground in Seaforth Channel. At approximately 9:00 a.m., the NES sank. It spilled diesel and other pollutants at and around the ancient Village of Q’vúqvai, Gale Passage (also referred to as Gale Creek), in the territory of the Q́vúqvaýáitxv̌ Tribe (the “Incident”).