Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 14 - Evidence - June 10, 2014
OTTAWA, Tuesday, June 10, 2014
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 5, An Act to amend the Canada-Newfoundland Atlantic Accord Implementation Act, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and other acts, and to provide for certain other measures, met this day at 5:03 p.m. to give consideration to the bill.
Senator Richard Neufeld (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
My name is Richard Neufeld. I represent the province of British Columbia in the Senate and I chair this committee.
I welcome honourable senators, any members of the public with us in the room, and viewers across the country who are watching on television. As a reminder to those watching, these committee hearings are open to the public and also available via Web cast on the www.sen.parl.gc.ca website. You may also find more information on the schedule of witnesses on the website under "Senate Committees."
I will now ask senators around the table to introduce themselves. I will begin by introducing my Deputy Chair, Senator Mitchell from Alberta.
[Translation]
Senator Boisvenu: Good afternoon. My name is Pierre-Hugues Boisvenu, and I am a senator from Quebec.
Senator Ringuette: Good afternoon. My name is Pierrette Ringuette, and I am a senator from New Brunswick.
Senator Rivard: Good afternoon. My name is Michel Rivard, and I am a senator from Quebec.
Senator Massicotte: Good afternoon. My name is Paul Massicotte, and I am a senator from Quebec.
[English]
Senator Patterson: Dennis Patterson, Nunavut.
Senator Tannas: Scott Tannas, Alberta.
Senator Wells: David Wells, Newfoundland and Labrador.
Senator Seidman: Judith Seidman from Montreal, Quebec.
Senator MacDonald: Michael MacDonald, Nova Scotia.
The Chair: I would also like to introduce our staff, beginning on my left with the Clerk, Lynn Gordon; and our two Library of Parliament analysts, Sam Banks and Marc LeBlanc.
Today we are conducting our third meeting on Bill C-5, An Act to amend the Canada-Newfoundland Atlantic Accord Implementation Act, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and other Acts and to provide for certain other measures.
Honourable senators, this bill, whose short title is the "Offshore Health and Safety Act," was introduced in the House of Commons and received first reading on October 24, 2013. After second reading, it was referred to the House of Commons Standing Committee on Natural Resources, which amended the bill and presented its report to the house on February 12, 2014.
It gives me great pleasure today to welcome, in the first segment of our meeting, The Honourable Robert Wells, Q.C., former Inquiry Commissioner, Offshore Helicopter Safety Inquiry.
Justice Wells, thank you for being with us today. You have a few short remarks you wish to make and then we will move to questions and answers. Sir, the floor is yours.
The Honourable Robert Wells, Q.C., Former Inquiry Commissioner, Offshore Helicopter Safety Inquiry, as an individual: Thank you very much. It is a pleasure indeed to be here in this quiet atmosphere.
In the beginning, perhaps I should talk about the work that I did and also refer to what I didn't have any connection with, and that is the occupational health and safety matters which are before you.
I was asked, shortly after the crash in March 2009, to be the commissioner because the Atlantic Accord Acts required that when a serious incident occurred that an inquiry should be set up. It was the Canada Newfoundland and Labrador Offshore Helicopter Inquiry because the loss of 17 lives was, of course, a serious incident by any stretch.
I might say a bit the about the terms of reference, which stated:
The purpose of this Inquiry is to determine what improvements can be made so that the Board —
That is the C-NLOPB:
— can determine that the risks of helicopter transportation of offshore workers are as low as is reasonably practicable in the Newfoundland and Labrador Offshore Area.
The general mandate is:
. . . to inquire into, report on and make recommendations in respect of matters relating to the safety of offshore workers in the context of Operators' accountability for escape, evacuation and rescue procedures . . .
The whole focus of the inquiry was basically on helicopter transportation.
One of the other requirements was that the inquiry — and I was the sole commissioner — be set up under both the federal and the provincial public inquiry acts and to liaise closely with the Transportation Safety Board. I know that I gave them as much cooperation as I possibly could and they gave me the utmost cooperation. It was a very worthwhile effort in that sense because I had no hand in determining why the helicopter failed on that particular day. My role was to take their findings and make comments and further recommendations if I wished to, or could, or felt I should. My role, essentially, was to examine the whole business of offshore transportation to see if it was being conducted in a way that could stand improvement. As a result, I made 29 recommendations.
Prior to the accident and this inquiry, the C-NLOPB, which is the governing body of the regulator, did not have any expertise in aviation. I think the way it was looked at was that this was a matter for Transport Canada — and Transport Canada's role is vital in any aviation in this country — and C-NLOPB, although it did audits from time to time of the provider, which was Cougar Helicopters, nevertheless they didn't have aviation expertise. The expertise lay with the operators and, of course, with the helicopter operator. Therefore, although in a general way C-NLOPB knew what was going on, it wasn't deeply immersed in the day-to-day regulation nor do I suspect that it fully understood all the facets of helicopter transport.
The inquiry had a number of stakeholders who had standing. These, of course, included C-NLOPB itself, the oil operators and various other people who were interested in the process. We had to wait for the Transportation Safety Board to give its report, so it was 2.5 years before we wound up. The essential work, which I did with two counsel and a small staff, was completed in about two years in which we heard from witnesses, namely the players, and also from experts that we chose from the U.S., Canada and the U.K. who gave us a lot of specific information about the problems.
The areas that we dealt with were response times. On that I made an interim recommendation after six or eight months, when I realized that our response time did not include a dedicated helicopter. It really relied on one of the four S-92s in the fleet. When turned into a rescue helicopter, it had to be reconfigured, the seats taken out and hoists and other rescue gear put in. The day on which the accident occurred, that took about 50 minutes. The international standard of 15 to 20 minutes wheels up, of course, could not possibly be met because the helicopter didn't get in the air until about 50 or 55 minutes after the report came that there was a problem. That concerned me very much during the course of the hearing. So much so that in the winter of 2010, in February, I made an interim recommendation which I was permitted by the act to do saying "Look, this has to be addressed. We have to get the wheels-up time to a proper international standard and we have to get at it now rather than wait for the end of the inquiry," which I knew was going to be something of the order of two years. C-NLOPB responded well; the operators responded well. They were a bit surprised that I would make an interim recommendation of that sort, but I felt it was important that we get down to business on this response time and have a dedicated helicopter rather than a helicopter from the fleet, which had to be reconfigured. It was so important, that is why I made that recommendation.
I also gave a caution about night flying. Now, night flying takes place in the North Sea and in other parts of the world, but there the rescue facilities are much more in evidence than they can be when it is purely offshore because in the North Sea you have the U.K., particularly Scotland and the Shetland Islands; but you also have Stavanger and adjacent countries such as Norway and the Netherlands, et cetera, which can provide rescue services. Also, there are so many wells in the North Sea over the last 30 years that they have offshore platforms where helicopters can land, be serviced and be stationed, whereas in our offshore, which is a relatively small offshore, it has to go from land to the ocean; there is nothing out there and there is nothing on the way. The closest installation is Hibernia, which is 315 kilometres. The furthest out they have gone is somewhere around 500 kilometres and Statoil, a Norwegian company, is now working about 500 kilometres out. They have not reached production, of course — far from it — but they are working 500 kilometres outside. That also causes difficulties. We needed to be careful of night flying and we also needed that rapid response.
The other thing that was very important — and I don't want to go on too long about this, but I will answer questions on everything to do with it — is that the suits needed to be improved. The suits were outdated. When I say "suits" I don't mean suits that one wears to work, but they wear them to work when they are in helicopters and flying offshore because should the helicopter have to ditch or, worse still, crash, as did happen, then if you haven't got a proper helicopter survival suit, you're doomed. That's the simplest and most accurate way to put it because you are going down in our offshore in very cold waters.
The day the accident occurred, the temperature of the water was 0.16 or something like that. It was less than 1 degree. Of course, the water would probably have frozen except for the turbulence and the sea states. Cold water involves two very severe dangers. The first is cold shock in which you can die in two or three minutes if cold water gets onto or into your suit. The second is hypothermia. Hypothermia does not set in earlier than one half hour, but, when it does, it starts to pull your core temperature down. When your core temperature drops, say, by 9 degrees Celsius, then you start to die. The temperature of one survivor of the crash of 491 was brought down from normal, which is about 37; to 28 or something like that. He was close to death. Therefore, the suits became an important consideration.
Other considerations were the underwater breathing device. It was important to me that workers be kept not only involved but become much more involved in the whole safety process and in the consultations leading up to safety improvements. I recommended safety forums; a helicopter safety committee; studies on side flotation; sea state issues, which are, in my opinion, very important; extended flying hours, which is a matter of concern; risk management and risk assessment; and also that C-NLOPB should get expertise.
After I made my report with 29 recommendations, C-NLOPB acceded to 29, but the twenty-ninth had two portions to it. There was A, which you are familiar with, which was for a separate safety authority as they have in Norway, the United Kingdom, Australia and are hoping to get — at least the commission recommended — in the United States and the Gulf of Mexico; and the B portion. When I made that recommendation, I was aware that in a small offshore such as ours — and then it had three operators, four helicopters; Nova Scotia, which had one helicopter — there may not be an appetite to have a separate safety authority, much as though I think that is the right way to go. Someday perhaps we may well have it, but I put in B, that it should be much more a separate safety arm if they chose that route with C- NLOPB. They did choose that route and they have made very great progress in the last three years so that the offshore of Newfoundland and Labrador now is nothing like the offshore in terms of safety as it was before the tragic accident.
Insofar as the melding or the introduction of occupational health and safety into the offshore, this is what the act is doing. The two provinces that are involved — Newfoundland and Labrador, and Nova Scotia — have already passed matching legislation, but how that will work is still an unknown because the Atlantic Accord set up the Offshore Petroleum Board to be the safety board and the safety entity.
Also, in 2009 the federal government passed an act involving the entity that will deal with the Arctic.
Senator Seidman: The Arctic Council?
Mr. Wells: The National Energy Board. They said this: In the past there has been prescriptive regulation. In other words, they prescribe A, B, C and D and you need this much of that and that much of something else. So they changed, and this was in accordance with world and especially North Sea activity. They said no, in future it won't be prescriptive, although there will always have to be a certain amount of prescription, but in future it will be performance-based. In other words, the regulator will say: Here is what we want. Here is the objective you must shoot for, oil operators. Now you tell us how you are going to achieve that, and we will either approve or disapprove or want more information or want you to give more detail or want you to do more about that.
While the inquiry was sitting, they also brought performance-based regulation into our offshore so that the prescriptive mode disappeared, although not entirely because it couldn't disappear overnight, but it was no longer the operative idea. The idea was performance-based.
The offshore in that period had a lot of things going on and a lot of changes and a lot of new concepts which it had to deal with. Of course now everybody knew that these acts that you are dealing with on the federal level, they were worked on for 10 or 12 years, long before my inquiry, and continued afterwards. I knew that this was taking place, but it didn't intermesh or have any involvement with the work that I was doing.
I understand from the operators and CAPP, their representative, that the operators in the industry are quite pleased with these occupational health and safety acts and this act. The workers are quite pleased because it gives them a greater role and enhanced powers, for instance, not to partake in work which they consider dangerous.
There seems to be a tacit agreement that this is a good thing. I think C-NLOPB is of the opinion it is a good thing. How quickly it can be implemented, I am not sure. There is a five-year transitional period, as you know. That is a good thing because I think it has to be carefully implemented and will be, I am sure, carefully implemented so that it doesn't interfere with the ongoing work which is well established between the oil operators and the C-NLOPB.
I can't give you much wisdom as to how this act of yours will be implemented; that is yet to be determined. However, I think it will be implemented, and I believe that the people it will affect will be supported and will assist in the implementation. But I am not the one to really give good opinions on the workings that will come from that.
However, on helicopter safety itself, I am quite prepared to discuss anything, even the now-somewhat-controversial issue in the Newfoundland and Labrador offshore of night flights, which I raised in the beginning, but now a lot of things have changed. I am quite prepared to discuss that, if you should wish to do so.
I have said enough as a way of opening. I would be glad to take any questions.
The Chair: Thank you very much for those remarks.
Senator Mitchell: Thank you, Justice Wells, for a very informative presentation. It is clear that you have had a distinguished career, and one very important feature of it was the report that you did in this area.
What distinguishes its great success is that at least 28 of your 29 recommendations were accepted, if I am not mistaken, and that is a serious accomplishment.
Mr. Wells: It was twenty-nine and a half.
Senator Mitchell: Yes, twenty-nine and a half. That brings me to the inevitable question: What happened to 29A and how do you feel about it?
Mr. Wells: I think it is the right way to go for a variety of reasons, although maybe we are not ready with the small offshore yet. This all came from Piper Alpha in the North Sea and Lord Cullen's report. Lord Cullen was a Scottish sitting judge. He felt that failure of communication — and I think there is no doubt about that — was the root cause of Piper Alpha tragedy where 183 people died.
It also disclosed failures which should have been thought about before. One was a firewall so that if anything occurred and something caught fire, as did happen, there would be some protection for the living quarters. In Piper Alpha there was no protection of any significance and the fire went right through. The only ones who escaped were those who leapt out of windows or somehow got out into the water and away from the fire.
The sort of thing that happened hadn't really been thought through. Lord Cullen felt that to achieve the best route to go, there should be a separate safety alternative, a separate safety body for two reasons. First, the people who are regulating, and the regulated, are working together a lot of the time. Sometimes they become friends; that is only natural. Sometimes a closeness or friendship develops. There is a word for that, and it is called "regulatory capture."
As I said in my report, there is no evidence that there was any regulatory capture in Newfoundland and Labrador offshore, or, to my knowledge, in Nova Scotia. But I suppose in these larger offshores — and I think the Gulf of Mexico was an example of that — the regulatory capture, to a point, did occur. That is the most dangerous thing.
The head of the HSC in the U.K. said to me privately, and he said it at a conference where I was present, that in order to avoid regulatory capture, they move their people around so that they are not with this operator for too long but then go to another operator and move because of the danger of regulatory capture.
The other thing is that safety, in order to be really effective, has to be up there at a level with operational command. The safety person should not be somewhere down the scale in an organization.
In my report, I gave examples. One example of that was in the building of the first atomic weapon in the U.S. when the colonel, apparently a brilliant organizer and administrator, was chosen to head that project from an administrative point of view. They felt that he was dealing with so many scientists, and he himself felt that they had better make him a general quickly because he didn't have the status.
With regard to safety, the writers on the subject say safety leaders ought to have the same status as the CEOs of the operations people.
Senator Mitchell: Thank you very much. That's a very interesting observation. I don't know if it was one of your recommendations, but at one point an offshore helicopter safety implementation committee was established, if I'm not mistaken. You mentioned the importance of keeping workers involved.
Mr. Wells: Absolutely.
Senator Mitchell: Yet one of the criticisms of that particular committee was that management picked the workers. We had a presentation from a labour union representative last week concerned that these safety boards may be broader than just the focus of your report or study. I'm trying to draw that implication. They are concerned that management could be in a position to appoint the worker representatives on these safety committees. One has already been established. I think Newfoundland and Nova Scotia's has yet to be established.
Could you elaborate on the importance or not of management not appointing members?
Mr. Wells: I'm quite clear on this. One of my focuses right from the beginning was that workers were not being told enough. They were not being consulted enough. They weren't involved enough.
Quite honestly, some of them feared that if they became too involved there would be repercussions. Now, there's no example of that, but it's a fear in the minds of some of the workers.
I did everything I could in what I was writing and saying to dispel that. So I believe that workers of course should choose their own representatives on any committee, but I have heard from workers that, on occasion, management has chosen. To what extent now that has lessened, I'm not sure, but it was one of the concerns that the workers had, and I think a justified concern.
What is the expression? Justice must not only be done but be seen to be done. I think if you twist it a little bit and apply it to the offshore, it's apropos.
Senator Mitchell: Thank you.
Senator Seidman: Thank you very much, Justice Wells. Your testimony brings all of this home for us, given your very real role in serious crisis situations and your recommendations.
That leads me to ask you a question about something you referred to in your testimony in the House of Commons at the Standing Committee on Natural Resources. You said:
Safety cultures are one of the most important things. They're hard to define. Some of the writers on safety have described them simply as the way we do things around here—but that's an extremely important component of safety.
Indeed, this committee has heard a lot about safety culture in its various studies and we have heard heads of corporations who have testified here say, "Well, it's the way we do things, safety culture in our company."
What I'd like to hear from you is a more specific delineation of what safety culture means from your perspective.
Mr. Wells: That's an important question. Perhaps I can illustrate it by describing what it was not, and not in this case but perhaps in the whole country years ago. I remember acting as counsel for a large corporation in Labrador, actually, a mining corporation. This was in the 1970s. There were three deaths within three weeks on that mine site, all in different areas of mining. A commission was set up, and I was one of the counsel.
I didn't hear the words at the time, nor did I think of them, of "safety culture." We were looking at what happened and trying to say, "Well, who was at fault there?" There was nothing about the overall attitude of everyone working on that site, from top management down. There really was not a safety culture.
Safety culture, I think, began with the Dupont company in the United States, which is very often held out as an example of a company that developed the safety culture first, or was one of the earliest, anyway. It's a culture that everybody in the organization realizes that safety is of maximum importance, it doesn't matter if you're washing dishes — if anyone does so any longer; I suppose machines do that. No matter what you're doing, safety is vital and important and everybody has an obligation to assist with safety, to think about safety and be safety conscious.
It's the phrase you used, and I guess I must have used before the House of Commons committee, "the way we do things around here." If a company or an organization has that concept from top to bottom, it will be a safer place. At least that is my thinking, but it's not original with me; all the writers on safety say that.
Senator Seidman: So you see this as something that is the way we do things around here, but I presume clearly delineated through protocols in a company, some kind of code and role specification?
Mr. Wells: Yes. One of the things I think that's most important for an oil operator, perhaps for any company to do, is say to its workers, "Look, we want your input. If you see something that you think is not safe or could be corrected, tell us. Don't be afraid that if you raise something with us, your job may be in jeopardy." People have got to get past that feeling, although it still exists to some degree in industry, I think. I'm told, anyway. But we've got to get past that so that everybody feels in an organization that they have a right to raise matters.
As a matter of fact, very recently in the Newfoundland and Labrador offshore sea states — I'd like to talk a bit about that if I get the opportunity. Quite recently, within the last few months, a group of workers said, "No, our understanding about the sea state at this time makes it dangerous to fly." Not that the helicopter can't fly, but if we go down in the ocean, the sea state is such that the chances of the helicopter staying upright are remote and the chances of survival, even if you get out of it and into the water, are remote.
You know, they refused to fly, and that decision has not been challenged. It has been talked about and worked through and resolved. That's a good thing. That's a good sign, in my opinion.
Senator Seidman: So Bill C-5 clearly brings offshore into the realm of occupational health and safety?
Mr. Wells: It really does. If it's done carefully and wisely and not in great a rush, but over the five-year implementation period, I think it can be a very good thing. I think the offshore will learn from occupational health and safety, and occupational health and safety will learn about the offshore, which is a different milieu, really.
Senator Massicotte: Thank you, Justice Wells, for being with us. You're obviously very able and competent. From your testimony we know that. The best evidence is that you studied something very serious a great deal. You are one, and we need 10 or 12 people to do some of the same here. We try to get there.
I want to make it clear. We received a submission from the Newfoundland and Labrador Federation of Labour referring to your report and basically using your report to suggest that you did not agree and would not agree with what is being proposed with the separation of these safety organizations, that it's still not adequate. I gather from your testimony you had separated the option into two parts. Yes, you stated what you ideally desire, but you had an Option B. From what I gather from your testimony, you are reasonably satisfied that Option B is being applied appropriately and would be satisfactory; is that right?
Mr. Wells: I think at the moment, yes. I think you are essentially correct in what you are saying. I think in an ideal world, yes, I would have liked to have seen a separate — and that may come yet.
You see, when I was thinking about all of this, I was thinking of the Arctic. Now, that's three years ago, and I think the Arctic will be developed because other countries, like Norway and Russia particularly, have their eyes on the Arctic in a very big way. So does Canada, and rightly so, as does the U.S. through Alaska.
I think that, for now, C-NLOPB has been doing an excellent job by going with my Recommendation 29(b). What will happen in the future, I don't know, but my concept was one safety authority for all of Canada that could have, as it were, branches in particular offshore areas with a complement of people who would move around from time to time; remember regulatory capture.
If we go into the Arctic, where is our expertise going to come from? It's going to come from Newfoundland and Labrador, which is our only offshore, and Nova Scotia, which is our other offshore, although much smaller. The offshore in Newfoundland is growing because the existing wells are going out laterally, as far as 10 kilometres, which is an incredible technical feat, in my view, drilling laterally and recovering oil. Of course, you've got Hebron, which is coming on in 2017, or shortly thereafter, but in that time frame. And, of course, you've got a very promising find, which is being developed by Statoil.
So the offshore is going to be bigger. The expertise can only come from the East Coast because that's what's being developed in offshore matters. I visualized this one safety authority that perhaps — who knows, it could be the National Energy Board, but a safety authority calling on the constituent parts for expertise and developing an overall approach to Canadian offshore.
I believe, and I think I said this in my report, someday a substitute for oil will likely be found, but most of us won't be around perhaps at that time. In the meantime, we are going to go more and more into dangerous waters and dangerous areas for oil.
I've seen pictures. I talk to the two co-chairs, Senator Bob Graham and Mr. Bill Riley, of the Deepwater Horizon Commission. We exchange reports, and in their report they have pictures of the original offshores, which were really rickety wharves built out from the shore. It went on and on offshore to get oil in deeper waters, and we're in some very deep water now, as was in the Gulf of Mexico and has been explored offshore in Newfoundland and Labrador and other parts. So that's going to go on.
Senator Massicotte: The second question I had for you is, obviously, no matter what the laws, the regulations or the prescriptions say, the bottom line is you have to develop this safety culture because you can never provide for every occasion or every risk perspective.
Mr. Wells: No.
Senator Massicotte: We all agree to that and, like yourself, we visualize from some inspections of petroleum companies that clearly evidence that. And you sense it; you sense a priority to that.
We all agree with that, and we all understand that, but how does the NEB, for instance, ensure that? How do you measure that? In many cultures, it's a feeling. It's a value system. How do you audit that? How does the NEB ensure that gets done?
Mr. Wells: I don't know, to be quite honest, but I think human beings, being as they are, if a majority of people in an organization develop a certain mindset, others will quite likely follow. There will always be some that will say, "This is nonsense," but I think the majority, if there can be a majority of active people who are respected and embrace the safety culture, I think they will pull the rest with them. That's my hope.
Senator Wells: Thank you, Mr. Wells, for appearing. I want to say for my colleagues that I'm here as the sponsor in the Senate of Bill C-5, but I also spent two years as Deputy CEO of the Canada-Newfoundland and Labrador Offshore Petroleum Board up to my appointment to the Senate in January 2013, so I am a subject-matter expert in the things that we are discussing today.
Mr. Wells, as you have gotten into Recommendation 29 — and I know we're here to discuss Bill C-5 — but as you have brought it up and others have commented on it, I want to say for my colleagues and for the record that while the U.K. has a separate safety authority, it's a safety authority for all industries, not specifically for offshore oil and gas. Australia, which is another leader in oil and gas development, has a separate offshore safety authority, but it's for the six states of Australia. Norway has the Petroleum Safety Authority, the PSA, which you've referred to, which is in charge of pipelines, as well as onshore processing, as well as numerous facilities in the North Sea.
So I just caution people considering that a separate safety authority might be a panacea or a solution to dangers or helicopter safety because, as we all know, helicopters have crashed in the North Sea under the jurisdiction of Norway and the U.K. and of course in Australia as well, all places with so-called separate safety authorities.
In Canada's operating theatres, if there are eventually drilling operations in the Arctic — of course, we have them offshore in Newfoundland and Labrador, we will possibly eventually have them in the Gulf of St. Lawrence and we have them offshore in Nova Scotia. There's a greater danger when you have four or five separate operating theatres operating under one safety authority or under one authority of any kind. So I want to caution my colleagues and the people listening at home on that topic.
Back to Bill C-5, with occupational health and safety currently and prior to Bill C-5 under the auspices of the province and operational safety under the auspices of the offshore petroleum board, how do you see that middle piece, which is your subject area of knowledge, the transport of passengers from the occupational health and safety jurisdiction of Newfoundland to the operational safety jurisdiction of the federal government? How do you see that piece in between?
I know when the board was created back in the late 1980s there wasn't consideration for the jurisdictional aspect of safety. There was consideration for who owns the offshore, who can process it and who has the authority to manage it, which is the offshore petroleum boards, but the piece between that, which is the transport of passengers, how do you see that benefiting from the new legislation?
Mr. Wells: I don't think there will be any instant benefit; not at all. Obviously, Transport Canada has certain rules and regulations vis-à-vis the transportation of workers offshore. They are there, and there's nothing anybody can do about that, nor should they.
Then you have the operators and the helicopter operators — which there are two now, by the way, in Newfoundland and Labrador, one Cougar for the three original oil operators. Statoil, I understand, has contracted with Canadian Helicopters and now operates two additional S-92s, but for safety purposes and search and rescue, they have an agreement of some kind with Cougar for search and rescue.
So I think that it would be very unwise for the onshore, the provincial occupational health and safety people, to jump in there. But over the years, as they learn about helicopters and offshore helicopter transport, which they have not been involved with up until now with this bill, which will become an act, they will learn, and it may be that they will be able to make a contribution.
One of the ways they and this bill could make a contribution is that it provides for an advisory board. I believe wholeheartedly in advisory boards, not necessarily boards of experts, made up of perhaps some experts and people who have the experience of living for a while and dealing with matters, not necessarily the matters under consideration but matters of life and work generally. I have experienced that.
I was president of the law society for five years back in the 1970s. During that time, an act was passed saying that laypeople would come on the board of governors of the law society, the benchers. My first thought was, "What would they know about it?" But it happened, and representatives of the public became benchers. To my great surprise and pleasure, they had great input because they saw it all through different eyes, whereas we lawyers saw it through our eyes. I saw it again when I was chair of a provincial judicial council and laypeople were on that council. We valued very much the opinion of laypeople.
If advisory boards are set up, I would hope that they would contain people such as school teachers, mechanics or whatever, who could have an input not coming from a background of the offshore or helicopter skills. After all, think of yourselves. You are sitting here considering important legislation, but you're not occupational health and safety professionals; you're from all walks of life. That's how it should be. That's how government should operate.
That's one area that could be very helpful. With a wise and cautious approach, the province could add a voice to offshore safety. If they rush in saying, "We do this, we do that; and you do this and you do that," it would be a serious mistake. They would have to learn as they go, as we all do throughout life.
Senator Wells: Thank you, Mr. Wells. Of course, Bill C-5 puts the authority for occupational health and safety and operational health and safety under the auspices of the board. You said that this will do nothing perhaps for five years. It won't have any immediate effect. Of course, workers' rights will be enshrined in the legislation. Before this, workers' rights weren't enshrined in legislation; they were only granted as a condition of operating authority to the oil operators. As long as the oil operators agreed, then workers' rights were protected, but that didn't cover other people in the industry who weren't part of the oil companies. The only ones that hold operating authority in the Newfoundland and Labrador offshore are the oil operators — the large companies.
Of course, workers' rights will be enshrined in legislation, not as part of an operating authority. I think that's where it should be.
Mr. Wells: I think so, too, actually, and CAPP likely thinks so as well.
Senator Wells: That's right. The three key rights for workers that are the foundation of the proposed legislation are: the right for workers to know about hazards in the workplace; the right to participate in identifying work-related health and safety concerns; and the right to refuse dangerous work, including a defined process to address such concerns. Those will be enshrined in legislation, not just as an agreement for the oil companies. That's an important consideration in Bill C-5.
Senator Ringuette: Thank you, Justice Wells. I'm fascinated by your comments, your knowledge and your vision that you want to see happen with regard to a national expertise centre in terms of offshore health and safety measures. After listening to you, I honestly believe that we are missing a golden opportunity to create a centre of expertise that would not be available not only to the offshore Newfoundland and Labrador and Nova Scotia but also to potential future operations in Canada. I think we are missing a golden opportunity.
Coming back to the bill, in terms of helicopter transportation and people on board transportation vehicles — whether train, plane or helicopter — the safety of the mechanism is the responsibility of Transport Canada. The safety of workers in the workplace is the responsibility of the provincial government, whether we're looking at Newfoundland and Labrador or Nova Scotia.
Legislation exists to cover the rights of these employees. I am concerned because of a few things, and I would like to have your comments. The boards appeared before us last week and indicated that they would oversee their current responsibility of operational safety with the operators, and they would also look at occupational safety. The same officers would be involved in both issues. Some days they would be on the operational side of the mandate and other days they would be with health and occupational safety. From the get-go, that gives me concern with regard to which safety issue will have priority.
The current federal health and safety legislation gives employee representatives the right to name the employees that will be on those health and safety boards. We don't see that in this bill. Rather, the employers name the employees to the board. Therefore, the employers have their representative on the operational safety side of the C-NLOPB. These same employers will appoint the employees they want to see on the health and safety side. I believe that from the get- go, such a situation will probably create some conflict. I would like to have your perspective on this.
In addition, last week we heard a presentation from the Newfoundland and Labrador Federation of Labour. Because of the particular situation of offshore work, the employees and the distance, they also had concerns about the individual right not to execute a task in the workplace and the repercussions that you seem to have detected in your report — the fear of repercussion.
Maybe in this particular workplace situation being so far from land and in a particular workplace it should also be the collective workers' right, if there is a health and safety situation on an offshore rig, that all the employees could say, "Until this safety issue is resolved, we are not working."
There is the issue of an individual right and a collective right. I don't know. I have said a lot of stuff.
Mr. Wells: One thing I do believe is, where workers are involved, that their fellow workers should choose them to be the persons involved in a committee or whatever else it is. To me that is fundamental.
Senator Ringuette: Absolutely.
Mr. Wells: When you get into individual rights as against collective rights, quite honestly that is a difficult question to answer, and I don't know if it can be answered. If it is a genuine issue, there will be more than one person feeling that way. One thing I do think this act will do is lessen the fear of repercussions because, as I understand it, the act actually forbids any sort of repercussions when people raise safety issues. Safety issues, even if they are found to be not real, should be addressed when they are raised. I certainly feel that way.
The other thing is I think you have to rely on people's common sense to a point. We have made a lot of strides in the offshore in the last few years. The operators have every wish to see the offshore safe, just as the workers do. When it comes to helicopters, when you suit up and get aboard that helicopter, there is no difference between you or me or the CEO or the person who is the cook. You get to understand equality when you go offshore in a helicopter. Everybody, I am sure, has the same anxieties.
We did a survey of people's feelings, and some people were out and out frightened by the prospect of flying in the helicopter; others, probably younger people, didn't see it as a problem. But the majority had a degree of anxiety.
Now, I did the training and went offshore. How did I feel? Well, I looked down; it was a windy day coming back. I went out for a day to experience the helicopter, but the weather was bad so I stayed out for three days. Coming back, I didn't think I was going to leave, but there was a helicopter coming from another installation, and I was told that there were three seats on it and one was mine. Perhaps they wanted to get rid of me; I don't know. Anyway, the seat was there and I took it. Anybody familiar with the ocean will know that when the winds are high and the seas are high, the ocean gets streaky with foam. I was sitting by a tank. There was a person next to the window, then I was in the other seat, and there was an auxiliary fuel tank opposite me, and I spent a lot of time wondering if we went down and we had to turn over would I be going under the tank instead of over it, or whatever, and I wrestled with that problem.
But there is an anxiety, and I have talked to an awful lot of people. People come up to me in the supermarket or wherever I happen to be and talk about it, and there is a certain amount of anxiety, but anxiety is the word, not naked fear, but a risk that people are prepared to take.
Senator Ringuette: In my comments I was also questioning the fact that these offshore boards were responsible for operational safety. Now they will also be responsible for occupational health and safety and the fact that their officer will be switching from one responsibility to another, as they indicated to us last week.
Could you comment on that issue?
Mr. Wells: I think that the primary safety responsibility is with the operators. They are the ones that are performance based; they are the ones that C-NLOPB authorizes to do what they are doing. I think C-NLOPB will be very important always in that and the responsibility will be the operator's.
If the onshore occupational health and safety people approach their job as a learning curve — and it will probably be quite a steep learning curve in the early years — then I think it can be done, and I think that is how it will work, with respect for other people's knowledge and opinions. If they burst onto the scene, which I don't think they will, saying this is how that's going to be, then I could see trouble. I don't think that's going to happen. I think this will be done very carefully.
The other thing is, as with all human things, except perhaps constitutions, they are human creations. If they are not what they ought to be, they can be changed.
The Chair: Thank you. I have been fairly lenient tonight because we have some extra time, so everybody has had some extra time.
Senator Patterson: Thank you, Mr. Wells. Do I take it from your opening comments that since your inquiry you've had the opportunity to keep yourself informed as to the workings of the offshore petroleum board in Newfoundland and Labrador? If so, how so?
Mr. Wells: On a purely informal way. Weeks may go by, or months, when they don't, but then on other occasions I have had a call saying, "Would you like to come down and chat with us?" There is no bill for that; I'm glad to do it. Sometimes, on occasion, the oil operators have said, "Can we chat with you about something?" Workers come up to me all the time and express views, and I am happy to participate in any way that I can, actually. For me, it was a marvelous experience to be the commissioner at this inquiry, and anything I can give back, I am very happy to do so.
Senator Patterson: I think that is impressive. In connection with that, based on your opening comments, you told us that the twenty-ninth recommendation of your report — I believe it was the twenty-ninth that we have been focusing on tonight — recommended that if not a separate safety authority it should be a somewhat separate arm.
Mr. Wells: Of C-NLOPB.
Senator Patterson: Yes. I assume so as to ensure that the occupational health and safety mandate of the board is not compromised by their other conflicting mandate, which is basically to facilitate development of the petroleum resources.
I would like to ask you, would you have an opinion, having kept in touch with the boards since your inquiry, whether or not we have, in effect, the somewhat separate safety authority in consciousness that we are all concerned about? Is that in effect now?
Mr. Wells: I think they are doing a good job and that since the inquiry they have become much more proactive, yes. They are implementing recommendations all the time. Now some of them are difficult. Some that look simple are probably not so simple. I will give you a quick example: helmets for pilots. I made an unconditional recommendation that pilots should wear helmets. But, of course, when you are flying all day, or a good many hours, within the permitted hours, the helmet is tiring and causes neck problems in some people. The pilots had concerns about this, but certainly I know that at this time, practically all the pilots are wearing helmets. However, there are things that, when you make a recommendation, you might not always be aware of.
One thing I want to say, too, is that DND was so helpful to me. It was one of the prescriptions, if I may use that word, in the terms of reference that I make no recommendations with respect to DND, but that didn't stop DND from teaching and helping me. They took me on night training and day training exercises and let me go down on the wire, but they refused to let me go down on the wire at night. The whole suit is not comfortable, by any means, but when you put the night vision goggles on that come out from the forehead like that, I must say the strain on the neck becomes noticeable.
There are all sorts of little things that sometimes make what seems to be a good and clear recommendation somewhat awkward. I think C-NLOPB has struggled with a few things like that, but they have certainly worked at it; there is no doubt about that, in my mind.
Senator Patterson: Thank you very much, sir.
The Chair: Thank you very much, sir. I appreciate your remarks and your answers to the questions. I think they were good questions, and there were some good answers that gave a lot of us some very important information. Thank you for being here. We appreciate it.
As this is a rather technical bill, it has, as we have heard many times, been many years in the making, with mirror legislation in both the Province of Nova Scotia and Newfoundland and Labrador.
We are now at a stage where we will begin to go through the bill clause by clause. Before we do this, I would like to remind all members around the table that if at any point a senator is not clear on where we are in the process, please ask for clarification and we will have the clerk provide it. As chair, I will do my utmost to ensure that all senators wishing to speak have an opportunity to do so. Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the result of a voice vote or a show of hands, the cleanest route is to request a roll call vote, which provides clear results.
Before we start, I would ask if there are any questions around the table. If not, I think we can proceed.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-5, An Act to amend the Canada- Newfoundland Atlantic Accord Implementation Act, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and other Acts and to provide for certain other measures?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: In the interests of time, I ask members around the table if they are agreeable to grouping the clauses of the bill.
Hon. Senators: Agreed.
The Chair: Thank you.
Shall the Canada-Newfoundland Atlantic Accord Implementation Act clauses and transitional provisions, clauses 2 to 54, carry?
Hon. Senators: Agreed.
The Chair: Shall the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act clauses and transitional provisions, clauses 55 to 93, carry?
Hon. Senators: Agreed.
The Chair: If anybody wanted to follow in the book, that is page 128 through 250.
Shall the clauses having to do with the Canada Labour Code and the Access to Information Act, the Excise Tax Act, the Canada Oil and Gas Operations Act, the Privacy Act, the Hazardous Materials Information Review Act, the Hibernia Development Project Act and the Federal Authorities Regulations, clauses 94 to 114 — and that is pages 250 through to page 257 — carry?
Hon. Senators: Agreed.
The Chair: Shall the clauses relating to the terminology, clauses 115 to 119 — and that is pages 257 through to page 261 — carry?
Hon. Senators: Agreed.
The Chair: Shall the coordinating amendments, clause 120, page 261, carry?
Hon. Senators: Agreed.
The Chair: Shall the coming into force, clause 121, carry? That is on page 263.
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report the bill to the Senate?
Hon. Senators: Agreed.
The Chair: Carried.
Thank you very much; I appreciate that.
(The committee adjourned.)