Natural Resources Committee on Dec. 9th, 2013

[Barbara Pike]

On transportation of workers back and forth to the rigs, for instance, the Transportation Safety Board or Transport Canada covered helicopters and covered transportation, yet the board also was responsible. That leaves a kind of.... This provides more clarity. There was a jurisdictional difference: Transport Canada versus the CNSOPB and the C-NLOPB.

Another one would be through environment, that sometimes.... Is it the NEB? Is it the C-NLOPB? Is it CNSOPB? Is it the Canadian Environmental Assessment Agency? This provides better clarity of the jurisdictional muddiness or grey areas.

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

Ms. Pike, my notes aren't totally clear on this, but I think you were talking about owners, rigs, functions, and getting things to be more up to date. We've heard other people talk about the importance of getting the hierarchy clear and figuring out how that is very important, particularly with subcontractors, etc.

Could you provide a little more comment on why it's important that the owners of the rigs are able to have clear lines of communication to their contractors and the people going down?

Did I did get the right person who was talking about that? Am I correct?

[Barbara Pike]

I did talk about the importance of this for the operators, the contractors, the workers, and the regulators. I'm not sure if I used exactly those words, but it has to do with how, in the end, safety offshore is the responsibility of all of us. These regulations, this change in the amendments in the bill to the accord acts, provide that the ultimate responsibility is with the operators. They can go to their contractors or subcontractors and workers. Also, then, going back up the line, those workers have the ability to refuse work if they don't see something happening. It goes both ways.

You can have as many rules as you want out there, such as making sure that you wear the safety equipment, or not using pipes to climb on, but if workers continue to do that, then you're going to have incidents. This way, I think this particular legislation provides much more clarity that people can deal with.

[The Chair, Conservative, Leon Benoit]

Thank you, Mr. Trost.

We go now to Mr. Harris for up to seven minutes.

[Jack Harris, NDP, St. John's East, NL]

Thank you very much, Chair.

Thank you, all three of you, for your very helpful presentations today.

Ms. Payne, first of all—and perhaps others would comment as well—I know that you, in addition to currently being the Atlantic director for Unifor, spent five years as president of the Newfoundland and Labrador Federation of Labour. You and others have talked about the fact that only guidelines had been in place for a couple of decades, and how it was taking 12 or 13 years to actually come out with and bring into force this legislation that everybody seems to think is a good idea.

Why would it take 20 years for us to get to this point when everyone says safety is first and the number one priority of these companies and of government and everybody else? Why are we here dealing with this 20 years later, instead of 20 years ago?

[Lana Payne]

Well, I can only surmise based on my own experience, which is that the consultation process was taking so long that things would change and we would have to consult all over again, so there would be no implementation on the past consultation.

I would argue that there was a real sense of just a kind of fudge and delay, fudge and delay. There didn't really seem to be a priority to get the legislation put into place, in my opinion, until the crash of the Cougar helicopter in March 2009. Then, very quickly, in 2010, while Commissioner Wells was holding his inquiry, the consultation process started up again, after what had been a considerable delay. In the midst of all of that, we are now here, so I would argue that perhaps the impetus to get us here was the fact that 17 workers lost their lives.

[Jack Harris, NDP, St. John's East, NL]

We also have the discussion about an independent safety regulator. You mentioned the incident in 2011 when the near crash took place, and the public and the workers not being informed of this.

I have a concern, too, about an independent safety regulator. Do you think an independent safety regulator would have made a difference in that?

Perhaps all three of you could give your opinion as to whether you think.... We have Transport Canada refusing to follow a recommendation of the Transportation Safety Board that helicopter transport be by helicopters that have a 30-minute run-dry capability.

We have helicopters going a couple of hundred kilometres or more offshore, and we have the Transportation Safety Board saying that we must have this 30-minute run-dry capability. Transport Canada says no. We now have contemplation of night flights for transportation, when evidence before the helicopter inquiry was clear that they're more dangerous.

Do you think an independent safety regulator would make a difference given those sets of circumstances and given those concerns being raised?

I'd like Barbara Pike and Susan Dodd to respond as well.

[Lana Payne]

I believe so, but I also agree with the professor in that she talked about the safety authority needing to be properly financed and with proper regulatory training for the people who work there. All of that needs to be automatic. When I refer to a stand-alone safety agency, to me this has to come with it. I think it would be different, because your job is about just the safety aspect and you would be more proactive, as we have seen with the other safety authorities in other jurisdictions.

Norway in particular has very strong all-stakeholder involvement. In fact, on helicopter safety they conduct a tripartite review of helicopter safety every three to five years. They have done three now in the last decade. They look at all aspects of helicopter transportation in their offshore and how they might collectively make improvements in that regard.

They just did so with a number of recommendations, one of which was to mitigate night flights even though they have a much better operating environment than we do in the Newfoundland and Labrador offshore. That is to say that in the Norwegian waters, they have multiple platforms on which helicopters can land in case there is a problem. From one platform to another, you do not have 300 kilometres of open ocean. There are places for these helicopters to be able to stop down. I think that makes a big difference and speaks to the 30-minute run-dry capability.

In fact, not just the TSB recommended that helicopters in Newfoundland's offshore have the minimum 30-minute run-dry capability; so did Commissioner Wells. These helicopters do exist in the world, if this were to be taken seriously.

Once again, with a stand-alone safety authority, I think your first response would be to say, “Okay, we are regulating the offshore in this regard; let's make this a condition of operation in the offshore operating environment.”

I am very concerned that this key recommendation around the 30-minute run-dry has still not been implemented. I can tell you that the families of the victims of Cougar flight 491 have been very strong about saying that we need to do something to improve helicopter safety in the offshore.

This latest incident in July 2011 I can tell you was very chilling for the people who work in the offshore and for the families—and to find out two years later that we nearly had another crash that could have had another loss of life at the same time as we have a helicopter safety implementation committee operating offshore that has not once considered a way to deal with helicopter safety as being an increase in fleet capacity. None of these matters have been looked at.

So yes, I think a stand-alone safety agency is critical.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. Payne.

Briefly, Ms. Pike.

[Barbara Pike]

To answer Mr. Harris' question about why this has taken 13 years, I think there was a lot of effort made to get this through faster. The fact is, though, you had so many government departments that were working on it; you had to try to get agreement among not only Nova Scotia labour, Newfoundland and Labrador labour, and the federal labour department, but also other departments that were involved.

On top of that, through that period, you had two governments that were going through minority governments. To get the legislation through, to get passage, it creates issues. I think that was one of the delays.

This legislation does to some degree address the issue of having a separate safety regulator. I probably mirror Justice Wells' comments last week to this committee that when it has to do with helicopter safety, the ability to set up the independent safety officer will be a good addition.

We also remember that when you talk about the Transportation Safety Board and Transport Canada, both the C-NLOPB and the CNSOPB are part of the international regulator forum. They do learn about best practices. They do talk to their colleagues in Norway, Australia, and the U.K. on a regular basis. I think some of the changes that have been made in this legislation will enable them to implement some of those changes faster.

[The Chair, Conservative, Leon Benoit]

Thank you, Ms. Pike.

Ms. Dodd, go ahead very briefly, please.

[Dr. Susan Dodd]

I would like to call into question the presupposition that regulations have to be disaster driven.

One of the things that really struck me when I interviewed Alex Hickman about the cause of the Ocean Ranger disaster was that the Ranger had a sister rig called the Dyvi Delta and it was operating, I think, in Norway. They had realized that the ballast control room should not be in the leg of the rig. They had moved the ballast control room onto the deck.

Whenever people tell the story about the Ranger they start with the big storm and then they go into the portal, and they tell this kind of mechanical causal chain that starts with a design flaw on the rig. Somebody out there figured out that design flaw, so that the Norwegian operation responded to it without having to react to a disaster. Justice Hickman said that was one of the big questions he had hanging over him after the inquiry. He kept wanting to find out who knew, and who made that decision, but he couldn't find the answer to that.

One would hope that the advisory council this legislation brings about would be not only looking at best practices but taking a lead in terms of bringing people from jurisdictions around the world together to talk about how we can actually develop legislation and develop an industry commitment to invest in research and development around safety.

[The Chair, Conservative, Leon Benoit]

Thank you.

Mr. Regan, you have up to seven minutes.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you very much, Mr. Chairman.

Thank you to the witnesses for joining us today.

As you probably all know, this bill enshrines workers' right to refuse work, or in this case we're talking really about transport, if they have reasonable cause to believe that there is danger involved. The definition of “danger” is not actually in the bill, although power is given in the bill to the Governor in Council to make regulations that would provide the definition.

In your view, how should the term “danger” be defined?

Ms. Payne, you talk about the right to refuse. How is it stronger in Bill C-5, or how is it stronger than it is in Bill C-4, and what are the implications of that?

I will start with you and then I will turn to the other witnesses in the order that we've had them so far.

[The Chair, Conservative, Leon Benoit]

Go ahead, Ms. Payne.

[Lana Payne]

The language in Bill C-5 is quite strong, because all you need is to have a reasonable cause that subjects you to danger; whereas what we are seeing now in Bill C-4 places the condition when defining danger as posing an imminent or serious threat. There is a qualifier around that. I think these words almost provide an unending opportunity for debating the quantum risk of the work that is occurring, which will almost supplant the real issue of whether or not the danger exists to the worker.

Bill C-4 also has in place a very long list of almost paper procedures that you have to go through in order to prove that you're in danger, whereas this one, which I hope would reflect more what is in the Newfoundland and Labrador safety code and the Nova Scotia safety code, gives more of a sense of what's reasonable instead of putting qualifiers around it.

[Geoff Regan, Liberal, Halifax West, NS]

Just a second.

[The Chair, Conservative, Leon Benoit]

Go ahead, Mr. Regan.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you, Mr. Chair.

What I was asking was whether you have a view on how it should be defined.

[Lana Payne]

I haven't written out what the language should look like, but definitely I think what we see in the Newfoundland...and in the Nova Scotia...that kind of wording would be better than what we're seeing in Bill C-4, for sure.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you.

[The Chair, Conservative, Leon Benoit]

Thank you.

Ms. Dodd, go ahead.

[Dr. Susan Dodd]

No, I'm fine.

I would agree that erring on the side of reasonable cause rather than imminent danger would be the way to go.

[Barbara Pike]

I agree.

I think one of the problems is that if you too narrowly define something, then you run into problems. I think that how it's written for onshore, both for Nova Scotia and for Newfoundland, should be how it is reflected in this particular legislation.

[Geoff Regan, Liberal, Halifax West, NS]

Professor Dodd, you referred to Chief Justice Hickman. If I understood you correctly, I think you said his view was that it would be better to house the functions together, the overall regulatory with the regulatory for safety. You also said that if you had an independent authority, it would obviously need to be properly financed and properly trained.

Do you share Chief Justice Hickman's view, or do you share the view presented by Justice Wells in his report that there should be an independent stand-alone authority?