Bill C-6 (Historical)

An Act to amend the Aeronautics Act and to make consequential amendments to other Acts

This enactment deals with integrated management systems and authorizes the establishment of voluntary reporting programs under which information relating to aviation safety and security may be reported. It also authorizes the designation of industry bodies to certify persons undertaking certain aeronautical activities. Other powers are enhanced or added to improve the proper administration of the Act, in particular powers granted to certain members of the Canadian Forces to investigate aviation accidents involving both civilians and a military aircraft or aeronautical facility.

[Faye Smith, Chairperson and Chief Executive Officer, Transportation Appeal Tribunal of Canada]

Thank you, Mr. Chairman and honourable members.

It's my pleasure to be here today to answer your questions on the Transportation Appeal Tribunal of Canada. I'll give you what I hope is a brief overview of the tribunal.

The Transportation Appeal Tribunal of Canada is a quasi-judicial body established by reason of the Transportation Appeal Tribunal of Canada Act. It replaces the Civil Aviation Tribunal which was established under Part IV of the Aeronautics Act following upon the recommendations of Mr. Justice Charles Dubin in his report into aviation safety.

The Dubin Report, published in 1982, includes three parts. To paraphrase Mr. Justice Dubin, he wanted to elevate the importance of aviation enforcement. His focus became the objective of the program to provide the aviation community with the opportunity to have the enforcement and licensing decisions of the Minister of Transport reviewed by an independent body.

By setting up a specialized quasi-judicial tribunal, the enforcement procedure was decriminalized, as is appropriate for contraventions relating to regulatory offences that are not totally criminal in nature. In its legislation, the Department of Transport reserves criminal court proceedings for the most serious offences. Hence, enforcement cases were removed from the criminal courts to the tribunal, and administrative monetary penalties ranged from $5,000 for breach of a regulation by an individual to $25,000 for a company. For the more serious enforcement cases, licence suspensions could be imposed by the minister.

I note that Bill C-6increases the maximum monetary penalties assessed against an individual to $50,000, and as against a company the proposed maximum is $250,000.

As mentioned, in addition to enforcement cases, licensing decisions made by the Minister of Transport may also come before the tribunal. These matters relate to qualifications to hold a variety of documents of entitlement, including matters of competence for medical or other reasons.

Prior to the setting up of the Tribunal on June 1, 1986, matters of qualifications to hold a pilot license or an air operator certificate were heard under the Air Regulations of that time.

A request for a review of the decision to suspend such a document was not heard by an independent body. Rather, the review procedure was conducted by someone in the Department of Transport, usually one level up from the person who originally sent the Notice of Suspension. Although there were many safeguards and guidelines built in such a system, the man on the street does not perceive it as a very independent review since it is done by the same Department.

That was the aim of Mr. Justice Dubin when he said that an independent tribunal composed of impartial members with subject matter expertise should be hearing these matters related to suspension.

The cases referred to above may include imposition of monetary penalties, or suspension, cancellation or refusal to renew, or refusal to issue or amend documents of entitlement on medical or other grounds. The person or corporation affected is referred to as the document holder.

The review and appeal hearings are held expeditiously and informally in accordance with the rules of fairness and natural justice, which involve the right of the individual or company to have a hearing before an unbiased and impartial hearing officer. At the conclusion of a hearing, the tribunal may confirm the minister's decision, substitute its own decision, or refer the matter back to the minister for reconsideration.

The basic principles governing the Tribunal are those of independence and expertise. The sound and competent execution of the Tribunal's mandate determines its effectiveness in dealing with the Canadian transportation community.

The tribunal's chairperson is also its chief executive officer, and the tribunal is responsible for the direction and supervision of the work necessary to facilitate the functions of the tribunal.

The part-time members are drawn from across Canada and are appointed by order in council on the basis of their knowledge and expertise. The office of the tribunal is located in the national capital region.

In enforcement matters, the hearing will normally be located where the incident took place. In medical cases, the hearings will be at the location that is nearest to the residence of the document holder.

In addition to the full- and part-time members—there are two full-time members—we have eight employees. That's our entire organization. Over the past 20 years, we have worked on an average of 250 to 300 cases per year, and approximately 60 to 80 of those go to a hearing. Many of the cases, obviously, get settled along the way.

Over the years, the practices and procedures of the tribunal were flexible and straightforward, and the tribunal became an example of government's best practices. It worked well over time because the tribunal took pains to keep its process simple and accessible to applicants, thereby providing effective recourse rights regarding certain administrative decisions.

The informal procedure and simplified rules allow the document holder to represent himself or herself without counsel, but representation by counsel is certainly permitted. Each applicant, upon filing a request with the tribunal, receives a copy of the guide to hearings. There are no user fees at the tribunal. We've been fortunate that we've been able to do that so far.

A review of the tribunal's operations reveals two things. The tribunal appears to be successful in disposing of the matters that have come before it in an expeditious fashion. It has certainly been more successful than the previous system, from an aviation perspective. It also appears that the very existence of the tribunal as a forum for review of enforcement and licensing decisions has, in and of itself, created an environment for the resolution of matters between the Department of Transport and those that it regulates—that is to say, we get the parties talking. This, alone, resolves many matters. Those that remain go to a hearing.

I thank you, and I await your questions.

[Nick Stoss, Acting Director General, Investigation Operations, Transportation Safety Board of Canada]

Thank you very much, Mr. Chairman.

Good afternoon. On behalf of the Transportation Safety Board of Canada, I'm pleased to have the opportunity to appear before the Standing Committee on Transportation, Infrastructure and Communities as it studies BillC-6, the proposed legislation to amend the Aeronautics Act.

TSB last appeared before the committee on Tuesday, June 13, 2006. On that occasion, I accompanied our chair, Mrs. Wendy Tadros. In our presentation we highlighted that the Transportation Safety Board, under the CTAISB Act, is mandated to advance marine, pipeline, rail, and air transportation by conducting independent investigations into selected accidents and incidents in order to make the findings as to causes and contributing factors. Also, we identify safety deficiencies and make recommendations designed to eliminate or reduce any such deficiencies. Finally, we report publicly.

We also highlighted the importance of TSB's independence from all other government departments. This independence is key to establishing public trust and confidence in our work.

Because this session of the committee is dedicated to Bill C-6, I offer the following from the TSB's perspective.

Under the provisions of Bill C-6, Transport Canada is the government department directly affected by the changes to the Aeronautics Act. Although the TSB's work is not governed by the Aeronautics Act, during its investigations the TSB does evaluate the circumstances of every occurrence against the provisions of the Aeronautics Act. In this regard, it would make findings as to compliance with the act and related enabled regulations and other documentation where appropriate.

The specific Bill C-6 amendments that have a potential to influence how we achieve our mandate are in the following areas.

First, part II of the act now will provide the Department of National Defence with the legislation necessary to conduct investigations in an almost identical manner to the TSB. However, the provisions will only apply to those investigations being conducted by DND and to military accidents and incidents involving civilians.

Second, the provisions in part I will govern the establishment of a voluntary, non-punitive reporting system. This concept of a confidential, non-punitive system should have a positive influence on the reporting of unsafe situations in the aviation transportation sector. Although TSB has a confidential reporting system called SECURITAS, the TSB system does not incorporate a non-punitive element. The TSB currently participates in a working group with Transport Canada and industry to develop this new system.

Thirdly, the provisions of Bill C-6 related to the safety management systems are also of interest to the TSB, principally because this new approach has potential to significantly improve the early reporting and early resolution of potential and actual safety deficiencies.

Bill C-6 also provides the legislation related to the protection of information collected by the safety management systems. This factor has significant potential to ensure the quality of the information being reported and analyzed.

This concludes my opening remarks. I would be pleased to respond to your questions.

Thank you.

[The Chair, Conservative, Merv Tweed]

Good afternoon, everyone.

Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number 36. Pursuant to the order of reference of Tuesday, November 7, 2006, we have Bill C-6, an act to amend the Aeronautics Act and to make consequential amendments to other acts.

Joining us today, from the Transportation Safety Board of Canada, is Nick Stoss; from the Transportation Appeal Tribunal of Canada, Faye Smith; and from the Union of Canadian Transportation Employees, Michael Wing and Michael Teeter.

Welcome. I'm not sure if you have made any arrangements as to an order of presentation. Is there someone who would like to take it first?

Mr. Stoss, you have seven minutes.

[David Jeanes]

I think, Mr. Bélanger, the regulation of the insurance industry is far too complicated a matter. I can think of analogues in completely different areas; you know, there are churches that are having trouble getting insurance to cover some of their normal activities. So it's not just airlines that have that problem. Certainly the consequences of 9/11 changed many things relative to the aviation industry, and I don't think those are really the matters that are being considered in these revisions to Bill C-6 at this point.

We do think it's very important that the public understand what's going on. For example, if it's the case that the airlines really are unable to obtain appropriate insurance, then that's a serious safety issue that the public should be aware of in making their travel decisions, or in fact in making representations to government about what they want government to do about such a situation. But I don't think it's directly part of these amendments.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Thank you very much, Mr. Chair, and thanks to the witnesses for coming forward today.

It's very important. This is a bill that has significant ramifications, as we're all aware, and certainly on this side of the committee table we want to make sure we do our complete and due diligence at every single step.

I'd like to follow up on Monsieur Laframboise's comments and refer to Transport Canada testimony that we heard on Monday. This committee was told on Monday that with Bill C-6, we would be in full compliance with international standards under ICAO, and that indeed Canada is in full compliance with international standards within the ICAO.

I wanted to ask you what the current ICAO standards are for pilot proficiency checks, and how often do those need to be undertaken?

[David Jeanes, President, Transport 2000 Canada]

I am.

Thank you, Mr. Tweed.

First of all, I would say that we are appearing here on very short notice of only a day or so. We don't have a written brief. Unfortunately, I could not be joined this afternoon by my colleague Gerry Einarsson, who is our expert on air safety matters, but I have been extensively consulting with him over the past two days. I hope the verbal presentation I make today will be useful to you.

You may normally think of Transport 2000 as a consumer organization that is primarily concerned with urban transit and railway matters. We last appeared before you in October of last year to discuss matters relating to rail travel. But we have been strongly concerned, mainly from the consumer perspective, about air transportation for quite a number of years. In fact, we appeared before this committee back in November 1999, as part of a coalition of nine different consumer organizations that were very concerned about consumer issues arising from the merger of Air Canada and Canadian Airlines.

At that time, one of the organizations that joined that coalition, along with the Public Interest Advocacy Centre and others, was the Air Passenger Safety Group, which was a group of people with strong expertise in the air industry who were particularly concerned about safety matters. That group subsequently became an affiliate of Transport 2000, and with their expertise over the subsequent seven or eight years, we have been quite heavily involved in airline-related matters. In fact, we're often called on directly by the national media for comment, particularly when there is an air safety issue, when there is a major air incident. We do believe that we try to provide an informed and balanced comment that is useful, in the public interest, and helpful to people when it comes to understanding the circumstances surrounding various incidents.

One good example of this was the crash and burning of the Air France flight at Pearson Airport, where we were quite extensively involved. We were actually told by representatives of the Transportation Safety Board that they had found the interviews we were giving to the media to be quite to the point and appropriate. So that's just some background.

We do also participate quite actively, in a consultative way, with various groups in the administration of the aviation industry, with Transport Canada, and with airline organizations—for example, in CARAC, the Canadian Aviation Regulatory Advisory Committee.

When it comes to Bill C-6, we strongly support the principles of the amendments as they are identified here. Matters such as aircraft emission regulations and the ability of the minister to make emission regulations relate quite closely to our commitment to sustainable transportation and to transportation that benefits the environment.

I'll talk a bit more, but we are quite concerned about the ability of the minister to handle fatigue countermeasures. Whistle-blower provisions are crucially important.

The whole area of SMS and provisions for more self-regulation by the industry is a matter on which we certainly understand the economic importance, but we feel it has to be balanced with a concern not only for absolute safety—which is, of course, always a matter of concern for Transport Canada—but also for public perception. It is in the interests of the industry itself that the public perceives that air travel continues to have the very high safety standards and safety record it is well-known for. In fact, we believe this relates to improved consumer choice.

You can talk as much as you like about a free market, but a free market implies that consumers have the knowledge to make the choices within that marketplace, and knowledge of the safety measures, and even the safety records, of the air carriers is an important part of that informed consumer choice.

I know I have to try to be brief here, but with respect to SMS, we do believe it is essential for the department to continue to have enough resources to do the monitoring, surveillance, and evaluation of the safety programs. In other countries we've had too many examples of where responsibility for safety and maintenance has been devolved. A very bad example occurred in Britain, where maintenance of the railways was devolved entirely to the private sector and resulted in a large number of severe and multiple-fatality accidents. They needed to practically shut down the entire national rail network after one particular incident resulting from the maintenance decisions under a self-regulation environment. There was a subsequent need for the government to re-nationalize both railway infrastructure and railway maintenance after they had been privatized.

It is very important that as you introduce these SMS programs and self-regulatory regimes you retain the ability in government to understand how well it's working, because once it fails, it's very expensive and complicated and difficult for all concerned to rectify the problems and to take it back.

Public oversight is absolutely essential. There have been many incidents that could have been prevented if this kind of whistle-blower protection had existed. As a specific example, I can go back as far as the Dryden crash in 1989, which was a de-icing matter, where it was clearly established that had employees been able to speak without fear of reprisal, the 24 deaths in that accident could have been avoided. We learned from that, and in fact de-icing procedures worldwide have improved as a result of what we learned from those fatalities, but in fact the fatalities might have been unnecessary if whistle-blowing protection was available.

It's not a Canadian situation, but an Alaska Airlines crash that happened in January of 2000 again was a case where known maintenance issues had been suppressed because there was no protection for the employees who could have provided that information. The plane crashed due to failure of its tail assembly, and the 88 fatalities that resulted could have been avoided.

We understand that this legislation is being dealt with against the background of diminishing and decreasing resources at Transport Canada, and although that may be a reality, and there may be great difficulty as experienced inspectors retire and so on--difficulty in replacing them--that by itself isn't an excuse for downgrading the level of safety in the industry. If the resources are required for safety, they must somehow be found.

Finally, we found some very good remarks, which I hope the members of this committee will have read or be aware of--and if you aren't, then I recommend them to you--in the remarks made by Justice Moshansky last November. He did the original investigation of the Dryden crash in 1989. He made a speech in November that was still quite concerned about the state of the management of aviation safety in Canada, about lessons that had been learned but had not necessarily led to improvements being made. Particularly, he had strong remarks related to the problems of inadequate supply of inspection capability--inspectors at Transport Canada.

Yes, it is appropriate to improve the act along the lines that are requested here and to devolve in a way that maintains safety and Transport Canada's ability to monitor the adequacy of safety mechanisms, but also in a way that will ensure that the public continues to have confidence in the safety of the airline system and can make informed choices.

Thank you.

[Capt Dan Adamus, President, Canada Board, Air Line Pilots Association]

Thank you, Mr. Tweed, and good afternoon, members of the transport committee.

I'm Captain Dan Adamus, and I'm here representing the Air Line Pilots Association, International, or what we refer to as ALPA. I'm ALPA's Canada Board president and a pilot with Air Canada Jazz.

With me today is Art LaFlamme, ALPA's senior staff representative in Canada. We appreciate the opportunity to appear before you today to express our views on Bill C-6.

The Air Line Pilots Association, International, represents more than 60,000 pilots who fly for forty airlines in Canada and the United States. Both as our members' certified bargaining agent and as their representative in all areas affecting their safety and professional well-being, ALPA is the principal spokesperson for airline pilots in North America. ALPA therefore has a significant interest in any legislation affecting aviation here in Canada.

ALPA supports this legislation, in particular the provisions to permit the effective implementation of safety management systems, known as SMS, in aviation companies regulated and certified by Transport Canada. ALPA has embraced SMS as the next great leap forward in advancing aviation safety. We see it as a comprehensive corporate approach to safety that involves both management and employees in the development and implementation of a company's SMS.

You may ask why ALPA is so strongly supportive of SMS and this legislation. We are for many reasons. It clearly establishes accountability for safety at the highest levels within a company. It provides for the reporting of safety occurrences and information without fear of retribution. It requires employee involvement and a formal risk assessment and decision-making process, to name but a few things.

ALPA views SMS as an umbrella framework over the existing safety regulations. Under SMS, no longer will a company be able to ignore a safety issue by saying they are regulatorily compliant. If a safety hazard is known or has been identified, a company is required to do a risk assessment and make a conscious decision on what mitigations are required to deal with it.

SMS clearly establishes responsibility for safety where it belongs: the aviation industry. It is the minister's responsibility to provide comprehensive and effective oversight and to take the appropriate measures where that responsibility has not been fulfilled. The traditional method of safety oversight based on detailed technical inspections can take on the role of operational safety assurance, and the aviation industry can lapse into thinking and believing that safety is the government's responsibility. ALPA believes this legislation clearly establishes where the responsibility and accountability for safety lies, and it provides all the powers required for the minister to take appropriate measures when required.

ALPA has not only accepted SMS in Canada, it has adopted it in the U.S. as the way forward. ALPA has been actively advocating it to the Federal Aviation Administration, the FAA, and with those airlines whose pilots are represented by ALPA. In fact, ALPA has been instrumental in achieving FAA buy-in to SMS, resulting in the FAA flight standards division issuing an advisory circular with standards for those airlines wishing to implement SMS.

As you are probably aware, the International Civil Aviation Organization, ICAO, has adopted SMS, and it will become an international standard in 2009. In that regard, the International Federation of Air Line Pilots Association, IFALPA—of which we were a founding member—has worked closely with ICAO in establishing the ICAO standards and recommended practices and strongly supports this international initiative.

We understand the expressions of concern that have been made regarding the protection from punishment and for the confidentiality provided for in the draft legislation. We believe these provisions are absolutely essential to the success of a company's SMS.

We can explain our position as follows. To proactively address safety issues, data is required. Strategies to enhance safety need to be data-driven. In the absence of accidents, the right kind of data is required. Human and organizational factors create errors or hazards that largely remain undetected until the right set of circumstances result in a bad occurrence. An organizational climate where people feel free from negative consequences when reporting errors, deficiencies, and hazards is essential to obtaining all the data that is available. Therefore, a reporting program must provide confidentiality and immunity from discipline to be effective. Of course, exceptions would be a wilful or deliberate offence, gross negligence, or a criminal act.

In summary, ALPA believes a voluntary, confidential, and non-punitive reporting program is an essential element of an SMS and this legislation.

ALPA would like to comment on one other provision of this draft legislation, and that's clause 12, the power of the minister to designate organizations to act on the minister's behalf in certain areas. ALPA is of the strong view that this designation power must not be granted for commercial passenger and cargo operations. We note that the legislative language is quite broad, subject to regulations on which stakeholders are to be consulted, through the Canadian Aviation Regulation Advisory Council, or CARAC. We have been advised by Transport Canada officials that this provision is meant to address only low-risk, non-air-transport areas of the aviation industry. We recommend that the committee obtain, for the record, such an undertaking from the minister.

We thank you again for the opportunity to appear before you, and we would be glad to take any questions you may have.

Thanks.

[The Chair, Conservative, Merv Tweed]

Welcome, and good afternoon, everyone. This is the Standing Committee on Transport, Infrastructure and Communities, meeting number 35, pursuant to the order of reference of Tuesday, November 7, 2006, Bill C-6, An Act to amend the Aeronautics Act and to make consequential amendments to other Acts.

Joining us today we have, from Transport 2000, Mr. David Jeanes, and from the Air Line Pilots Association, Dan Adamus and Art LaFlamme. We appreciate your coming out on a blustery day. I know there's been some discussion, but I think we'll start with the Air Line Pilots Association and give Mr. Jeanes a chance to get himself set up and organized.

Traditionally we give you about seven minutes to pitch, and then we'll go around the table and ask you some questions, if that's okay.

Please begin.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I have no first-hand knowledge, but I understand that the witnesses who were coming forward on Wednesday had no problem with the issue that we discussed and the result of it. My understanding is that they were still coming at that time.

I do want to make mention of two things, though. The notice of motion that was put forward, I believe, if you read it, dealt only with the issue of remailers. The discussion we had also affected the rural mail, and we wanted some answers on rural mail as well. So I would say that the original motion didn't talk about rural mail; it just talked about remailers.

Also, to be fair to Ms. Greene, I've asked for her to be in attendance, including the committees, three or four times now, and she has always made time to see me, even about other caucus members' questions, from all parties.

She has a huge corporation of 70,000 employees to run. I'm sure that if she's asking to be excused from the committee, she has other business to attend to that must be of some sort of urgent nature. I would suggest at this time, and, quite frankly, we passed that motion fairly strongly, all of us did, and I think the reality is, let's get on to other business.

We have Bill C-6. I don't think the remailer issue is a major one at this time. Rural mail is an issue, but they have a directive. I did have a briefing from Canada Post on that particular directive and what they were doing, so they were going to come forward and report to us what they were going to do on rural mail as well as remailers. I think the directive is up in another 30 or 40 days. I don't think there's any rush in relation to that particular issue.

But certainly, we—and I think Ms. Greene—are open to another date.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Quite frankly, we have the same concerns from this side, especially having heard the newspaper reports and heard about other situations that were taking place.

This is a two-part motion, and I'd like to speak to both parts. I think both are important, but we have to look at the business reality involved with them.

Mr. Julian, just to confirm, I've never said that you give long speeches; I've just said that you filibuster things in order to not have to deal with things such as Bill C-6, which is of course coming before us. I've heard rumours that you want to put it off and put off the work of the committee, which bothers me with motions such as this.

The first part of the inquiry deals with the failure of the security system, which is under investigation, as you know. The minister launched an investigation immediately thereafter. The department will not comment on particular investigations that are still ongoing, and that's the situation there.

I have received an undertaking from the department that as soon as the investigation is finished they will notify me, and I am to notify the committee immediately, and at that time they can comment on it. That's the first part.

The second part of this particular motion deals with a private company. Garda is a private company, and CATSA will not comment specifically on contracts between them and why they make purchasing or management decisions as to why they assign or do not renew contracts or renew contracts. I don't see how we can compel them to do so, but certainly I would suggest a private corporation should not be obligated to do so, especially in a situation where it's bidding on contracts.

In summary, we can't support the motion as it is, but certainly if the committee wants notice of when it's finished, I have received affirmation from the department that they will notify me, and I am to immediately notify the committee, and then we can get cooperation from the department to provide information. But as past ministers know—we have two here—they cannot comment on ongoing investigations.

[The Chair, Conservative, Merv Tweed]

Good afternoon, everyone. This is meeting number 33 of the Standing Committee on Transport, Infrastructure and Communities. You have the orders of the day.

We have a notice of motion from Mr. Julian, and then I suggest to the committee that we might go in camera to discuss the results of the subcommittee meeting of earlier this week, and also to review the witness list that we've prepared and talked about on Bill C-6.

At the subcommittee meeting we talked about Mr. Julian's motion and allocated 30 minutes for it. I would defer to Mr. Julian and ask him to bring it forward.

Aeronautics Act

[Jay Hill, Conservative, Prince George—Peace River, BC]

Mr. Speaker, I rise on a point of order. Once again, I think that if you were to seek it, you would find unanimous consent to apply the results of the vote just previously taken to the motion presently before the House on government Bill C-6, with Conservative members present voting yes.

[The Speaker, Liberal, Peter Milliken]

The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-6.

The House resumed consideration of the motion that Bill C-6, An Act to amend the Aeronautics Act and to make consequential amendments to other Acts, be read the second time and referred to a committee.

[Peggy Nash, NDP, Parkdale—High Park, ON]

Mr. Speaker, I am pleased to join my colleagues today in speaking in opposition to Bill C-6.

As others have said earlier, the bill constitutes an extensive rewriting of the Aeronautics Act. It is a bill that was introduced by the previous government but had not been passed into law. Nevertheless, key pieces of this proposed legislation had been put in place under the direction of the former transport minister. We believe that these changes should be dealt with in Parliament by members elected to consider new legislation.

The issues dealt with in Bill C-6, which would amend the Aeronautics Act, are very broad: a new purpose clause; new safety management systems; immunity from prosecution for airlines that violate safety rules under certain conditions; heightened secrecy and less access to information on the safety performance of airlines; designation of private industry bodies to self-regulate their safety activities; new employee reporting procedures for hazards and risks; revamped enforcement mechanisms; new levels of fines; new administrative penalties; new airport zoning and land use rules; new procedures for investigations; permission for the operation of fractional ownership aircraft in Canada; abuse of exemptions procedure; changes to the procedures for review of ministerial decisions and actions; and a host of technical issues are dealt with in the bill.

We have identified, through our analysis, a number of problems with Bill C-6 in some key areas that I will now review. The first area concerns the safety management systems. This seeks to give authority to the governor in council to establish and implement management systems, better known as safety management systems or SMS. This is the heart of the change to the Aeronautics Act that will affect the safety of the travelling public and of crew members.

A number of airline crew members who live in my riding have contacted me in the past out of concern, for example, about increasing the ratio of crew members to passengers. They are concerned with their own safety and the public welfare, as they are trained to be.

We know that the SMS process is well underway, quarterbacked by Transport Canada's director general of Civil Aviation. Some of these regulations have already been passed by the Canada Gazette. They were then exempted the same day by Transport Canada officials and replaced with a three year implementation plan for safety management systems, even before Parliament had the opportunity to debate, much less approve, this new enabling legislation. They are now near the end of the first year of the SMS implementation.

What is this new system? It is supposed to be a management system that allows air operators to improve their safety levels by building on existing safety regulations. While Transport Canada insists that SMS is not a deregulation of safety, that is precisely what it is in two ways. First, it is a new role for the regulator with increased delegation of previously performed Transport Canada duties to the airlines themselves. We are talking about self-regulation as opposed to government regulation. It is a transfer of the determination of appropriate “risk levels” from Transport Canada to the airlines or from the public interest to a determination in the interests of private shareholders.

Transport Canada embraced SMS as a result of anticipated budget cuts even before the May 2 budget. Transport Canada officials have openly stated that the current safety framework is not sustainable due to a lack of technical personnel in the industry in the future.

Given the anticipated rate of inspector retirements, which is at the rate of about 40% over the next five years, this will mean a shortage of qualified personnel to oversee the current system.

Budget constraints are expected to continue for the foreseeable future in an era of what is called fewer regulatory resources. These resources are the inspectors enforcing the regulations that determine the safety of the travelling public, not to mention the crew members working in the industry.

Internal budget documents indicate flatline resources for Transport Canada aviation for the next two years, with a more than 5% cut beginning in 2008. However, Transport Canada has refused to provide internal documents to one of the unions involved, CUPE.

SMS is Transport Canada's way to cut its coat to fit a quite limited financial cloth. As a result, there will be a shifting relationship between airlines and Transport Canada. An assistant deputy manager for safety and security was quoted in an aviation magazine saying:

There must (be) a willingness on the part of the regulator to step back from involvement in the day-to-day activities of the company in favour of allowing organizations to manage their activities and related hazards and risks themselves.

This was done through SMS regulations, where the determination of the level of safety has been explicitly transferred to the air operators who will decide how to manage the risks, including the level of risk they are willing to accept in their operations and impose on air travellers and their employees. Under SMS, it will be the airlines that decide safety levels for the traveling public.

The head of Air Canada will now be safeguarding the public interest. Air Canada's bottom line will be the factor in setting safety levels for that airline. Transport Canada staff admitted, as late as last December, that such a redefinition of the role of the minister raises legal questions about the government's responsibility and liability for future system failures. It is also a naive and dangerous change in the relationship between Transport Canada and the airline industry.

Maintaining adequate safety costs money and the public counts on government regulations and the enforcement of those regulations to ensure their safety. However, SMS will foster a tendency to cut corners in the name of efficiencies in a very competitive aviation market wracked by high fuel prices. Today wine bottles are being abandoned to lessen aircraft weight and save a few litres of very expensive jet fuel.

What will happen to safety when the need to save money and make profits is paramount? Leaving enlightened business to manage themselves properly will not mean that safety will take care of itself. How will the public interest be protected under SMS? If anything, there will be increased reliance on time-consuming and costly lawsuits to deal with inevitable system failures initiated by the victims of surviving families of these breakdowns. We simply cannot let this happen.

Transport Canada officials have candidly admitted that some U.S. federal aviation administration officials have said that Canadians are giving away the store with SMS.

I would like to say a few words now about the delegation of rules-setting to private bodies. This is found in the bill's clause 12, specifically the new proposed subsections 5.31 through 5.38. SMS is supposed to enhance aviation safety because it builds on a robust set of minimum standards set by Transport Canada in the public interest.

In its various public and private statements, Transport Canada has been evasive on the future of the level of basic regulation it will maintain in the future. However, actions speak louder than words. Transport Canada has already transferred the actual operation of its regulatory regime entirely to the private sector for certain classes of air operators. It has done so even though new proposed subsection 5.31 of clause 12 of this bill has yet to be passed authorizing such a delegation to organizations. This transfer occurred for business aircraft in March 2005. Who is next?

Transport Canada is now openly speaking about doing the same for commercial operators, most recently at the Canadian aviation safety seminar in Halifax last April. The foxes will be running their own hen houses and it is up to us as parliamentarians to represent the public interest, the interest of Canadians and blow the whistle on this. We cannot let this happen.

We know the government has a very narrow view of the rule of government but we cannot play around with the safety of the travelling public.

The concept of management systems is not defined in Bill C-6. Rather, the key definitions of safety management systems and accountable executives and the basic elements of SMS are confined entirely to the already enacted regulations. While safety management systems exist already in Canada in railway security, Nav Canada and in other countries, not all SMS are created equal.

Key deficiencies in the current aviation version of safety management systems include: under intense industry pressure, the personal liability of the accountable industry for the proper functioning of the SMS has not been added to the Aeronautics Act; the definition of SMS contains only a vague purpose, which is “to ensure aviation safety or the safety of the public”, rather than a specific and achievable performance objective, such as, to reduce risks to the lowest level reasonably practicable; an emphasis on managing risks, rather than eliminating, controlling or minimizing them; the absence of clear and measurable requirements for continuous improvement in the SMS itself; the disappearance of a promised regulatory provision to ensure the effective involvement of employees and their unions in the development, implementation and operation of SMS; established minimum elements to be part of SMS's safety policy, including adherence to minimum legal and regulatory requirements; and, poorly defined risk matrices that have more to do with technical engineering standards than human failures of the costs of human injury.

The biggest failing of Transport Canada's SMS is that it has not been empirically validated against the actual track records of similar SMS where they have performed poorly, failed or missed their objectives.

I would like to speak briefly about the encroachment of SMS on part II of the Canada Labour Code, which addresses occupational health and safety for workers in the federal jurisdiction.

As “notwithstanding any other act of Parliament” legislation, part II of the code has exclusive authority to deal with occupational health and safety for these workers.

Flight attendants and pilots were added to the scope of part II in 1986 as an aviation extended jurisdiction shared between Transport Canada and the labour program of what is now HRSDC. Part II of the code provides a series of important rights. It provides the right for working people to know workplace hazards. It has a hierarchy of proactive measures to deal with such hazards, such as, eliminate, control, minimize and self-protect. It gives workers the right to refuse unsafe work and the right to participate, including in joint employee-employer investigations and inspections.

The introduction of SMS has emboldened employers to try to turn the clock back before 1986 for flight attendants. Safety data available by law to joint occupational health and safety committees are now being routinely denied by air operators as part of the new SMS confidentiality mentality.

Employee occupational health and safety representatives are being excluded routinely from legally mandated joint occupational health and safety investigations in favour of management only SMS investigations. Managers are applying risk indices to determine if corrective action should be taken on health and safety issues contrary to the precautionary principle found in sections 122.1 and 122.2 of the Canada Labour Code.

Air operators such as Air Canada and Air Transat are openly disregarding a joint Transport Canada-HRSDC interpretation document on SMS by integrating health and safety committees into their new SMS programs with the resulting denigration of employee rights.

Transport Canada inspectors, who enforce health and safety under a memorandum of understanding with HRSDC, have limited ability to enforce code rights when their senior managers have overwhelmingly embraced SMS. SMS must be carefully circumscribed within the Aeronautics Act, so that it does not subsume, impact or denigrate other existing rights provided under part II of the code.

There are new, very complex but distinct levels of confidential reporting associated with immunity provisions or protection from reprisals in Bill C-6 and promulgated under SMS regulations. There are three levels of such reporting and immunity. At the air operator level, the SMS regulations call for employers to implement a non-punitive safety reporting policy that requires employees to voluntarily report safety hazards and other problems to air operators. The conditions under which protection from discipline is available to employees can be imposed by the air operator or possibly negotiated with the union.

At the level of Transport Canada, proposed new subsection 5.392(1) stipulates that safety information from an air operator or its employees that comes into the minister's possession will be confidential. It can only be provided to the courts if it is de-identified or if the air operator is about to be shut down. This proposed new section adds that this information, including self-reporting contraventions of the law and regulations, cannot be used against the provider of the information to impose any penalties. Such information will also be beyond the reach of the Access to Information Act.

At a national level a new section would allow a person, conceivably employees or air operators, to report safety information and violations of the law and regulations without fear of reprisal subject to specified limitations on immunity in another new section by a yet to be created national safety body. This information will also become a mandatory exclusion from the Access to Information Act and be held in confidence.

The premise of these changes is that air operator employees may be reluctant to report their mistakes if they fear reprisals from their employers or Transport Canada, but these legislative changes go far beyond this, making all safety information now confidential. This new culture of secrecy has already limited the operation of joint occupational health and safety committees under part II of the code.

The minister's April 27 news release describes these amendments as allowing individuals and operators to confidentially report, on a voluntary basis, less safety critical regulatory violations, but clearly, there is a real concern that this will give the operators a get out of jail free card for self-reported violations of the law or regulations to Transport Canada with no enforcement taken on the self-reported regulations.

In summary, my concern is that this bill would mean more secrecy and would be a threat to the safety of the Canadian travelling public. It would provide operators working in the industry less access to information and action about the hazards that they are facing. I do not believe that this is in the best interests of either people who work in the industry or the travelling public. I urge hon. members to oppose this bill.