THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
OTTAWA, Thursday, February 11, 2021.
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 10 a.m. [ET], by videoconference, to consider Bill S-3, an Act to amend the Offshore Health and Safety Act.
Senator Paul J. Massicotte (Chair) in the chair.
The Chair: Honourable senators, my name is Paul Massicotte, I am a senator from Quebec and chair of this committee.
Today, we are conducting a virtual meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
Before we begin, I’d like to remind senators and witnesses to please keep your microphones muted at all times unless recognized by name by the chair.
I will ask senators to use the “raise hand” feature in order to be recognized.
I will repeat in English. I will ask senators to use the “raise hand” feature in order to be recognized.
I will do my best to involve everyone who wants to ask a question to witnesses, and in order to do so, I ask senators to try to keep their questions and preambles brief.
I would also like to remind you that when speaking, you should be on the same interpretation channel as the language you are speaking. Should any technical challenges arise, particularly in relation to interpretation, please signal this to the chair or the clerk and we will work to resolve the issue.
I would now like to introduce the members of the committee who are participating in today’s meeting: Margaret Dawn Anderson, Northwest Territories; Douglas Black, Alberta; Claude Carignan, Quebec; Jane Cordy, Nova Scotia; Rosa Galvez, Quebec; Mary Jane McCallum, Manitoba; Julie Miville-Dechêne, Quebec; Dennis Glen Patterson, Nunavut; Paula Simons, Alberta; Josée Verner, Quebec; and David M. Wells, Newfoundland and Labrador.
We also have Senator Ravalia with us as the sponsor of the bill.
Welcome, colleagues and Canadians who are watching us.
Today, we are continuing our consideration of Bill S-3, An Act to amend the Offshore Health and Safety Act. This morning, we welcome from the Canadian Association of Petroleum Producers, Paul Barnes, Director, Atlantic Canada and Arctic. From the Newfoundland and Labrador Oil & Gas Industries Association, Charlene Johnson, Chief Executive Officer; from the Canadian Undersea and Hyperbaric Medical Association, Dr. Kenneth LeDez, Vice-President.
Welcome and thank you for being with us today. We are ready to hear your comments and we will have questions for you afterwards.
Paul Barnes, Director, Atlantic Canada and Arctic, Canadian Association of Petroleum Producers: Good morning, chair and members of the committee. My name is Paul Barnes. CAPP is an association of oil and gas companies involved in the exploration, development and production of oil and gas in Canada. I’m based in Newfoundland and Labrador where the vast majority of Canada’s offshore oil and gas activity is taking place.
CAPP welcomes the opportunity to provide our perspective today on Bill S-3, An Act to amend the Offshore Health and Safety Act. As a bit of background and overview, following the Royal Assent of Bill C-5 back in 2014, which is the Offshore Health and Safety Act, which amended the federal Nova Scotia and Newfoundland and Labrador Accord Acts, the Accord Acts were actually amended to include: A worker’s right to refuse to perform unsafe work, right to know the risks associated with the work, and the right to participate in health and safety committees. It also included a worker’s right to reprisal protection for raising health and safety concerns, and provided for a joint allocation of responsibility among offshore oil and gas operators, employees, workers and suppliers for matters related to occupational health and safety.
Transitional occupational health and safety, or OHS, was then put in place to allow time to develop permanent regulations. The federal version of these transition regulations, as you well know, expired at the end of December 2020 and are considered repealed, while the Newfoundland version was extended before they expired to 2022, and the Nova Scotia version did not have an expiry date.
To address this current period of having no federal transitional regulations and no permanent occupational health and safety regulations in place, the Canada-Newfoundland & Labrador Offshore Petroleum Board, which regulates our industry, is in the process of issuing an addendum to each of the offshore operator’s authorization, indicating that each operator must continue to follow the provisions contained in the transitional offshore regulations even though they have expired.
CAPP has worked with our members over the last six years under these transitional regulations to support the occupational health and safety regime while permanent regulations are developed. Some of these efforts included having discussions with the offshore workforce on the offshore platforms and rigs, and discussing these amendments and what it means to them.
Our members conducted their own internal assessments to ensure various provisions in the traditional regulations were fully integrated as part of the management systems. We also developed six industry best practice documents with participation from the offshore workforce and the offshore petroleum boards to ensure that the principles contained in the Accord Acts were implemented by all operators working offshore, and that the transitional regulations would be recognized and adhered to. These six industries recommended the best practices that have since been adopted by the offshore petroleum board as actual codes of practice.
CAPP and its members have also publicly stated our collective commitment to continuous improvement and developed a plan to ensure we always raise the bar when it comes to safety. In fact, in February 2020, we released a document called the Collaborating for Safety and Sustainability: A Continuous Improvement Plan, which outlines our offshore base members’ collective commitment to making Atlantic Canada the safest and most sustainable offshore producing jurisdiction in the world.
With regard to the bill before you today — while CAPP is supportive of extending the transitional offshore regulations through Bill S-3, which is before the Senate committee — we believe the timeline associated with the bill needs to be shortened from the proposed two years.
We understand the complexity and the many steps involved in developing regulations, but believe that if there is an earnest attempt by the federal government to finalize these regulations, it can be done in less than two years.
CAPP supports having transitional OHS regulations in place in the interim, as long as the federal government has a clear and expedited timeline for the implementation of permanent OHS regulations and they ensure a formal consultation process is undertaken on the permanent regulations.
It should also be noted that the last time stakeholders such as ourselves reviewed the policy intent for the permanent OHS regulations, in 2018, we observed a number of instances in the draft that were duplicative, redundant and inconsistent with other offshore regulations, which could result in misinterpretation and incorrect application. We therefore recommend that the next drafts certainly avoid this.
Finally, we recommend that the Province of Newfoundland and Labrador, in conjunction with the federal government, must expedite the appointments of qualified candidates to the Occupational Health and Safety Advisory Council. These councils provide a forum for the offshore workforce, industry and governments to discuss and advise on occupational health and safety issues, and should be a priority. Nova Scotia actually implemented their advisory council back in March 2019, and they have been meeting twice a year since.
In summary, Bill S-3 must be expedited and passed so that the transitional federal OHS regulations remain in place until permanent regulations are finalized. We are concerned over the length of time the process has taken — since 2014 — to develop a permanent set of OHS regulations, but we recognize that the rights of the offshore workforce are protected and enshrined in the Accord Acts.
We request that all levels of government work together to define a reasonable timeline of less than two years for the implementation of permanent OHS regulations, and to ensure that they are developed to avoid duplication and inconsistency with other offshore regulations.
CAPP is proud of the industry’s offshore safety record and we will continue to work with all stakeholders to ensure the rights of all offshore workers are protected, and we will continue enhancing our approach to health and safety in the offshore.
Thank you for the opportunity. I look forward to any questions.
The Chair: Thank you, Mr. Barnes. Ms. Johnson, do you want to proceed?
Charlene Johnson, Chief Executive Officer, Newfoundland and Labrador Oil & Gas Industries Association: Sure, thank you. Good morning, chair and committee members. Thank you for the opportunity to address the committee today. My name is Charlene Johnson, and I am the CEO of the Newfoundland and Labrador Oil and Gas Industries Association, more commonly known as Noia.
Our association represents member companies who are involved in the offshore oil and gas supply and service sector. Noia members are diverse and include those who operate supply vessels and helicopters, human resource agencies, safety and environmental companies and even those involved in the hospitality industry, which receives numerous spinoffs from the offshore.
I appear on behalf of those members today to offer comments on Bill S-3, An Act to Amend the Offshore Health and Safety Act. This is my second time speaking with this specific standing Senate committee, and I admire the great work that you have undertaken with respect to Canada’s natural resource sectors. My remarks today will be brief, as I hope will be the length of time to move forward with changes to offshore healthy and safety regulations.
I commend the Senate for bringing forth this bill and for attempting to advance this process. The last time I appeared before this committee, I spent the majority of my time speaking about competitiveness and timelines. As I appear before you again, my message has not really changed.
The process to institute new Atlantic Occupational Health and Safety Initiative regulations for the offshore has taken far too long. It is another symptom of the disease of delay that has permeated our industry and hindered our growth. Thankfully, in this current situation, the actions of those involved in the offshore, including offshore operators and the Canada-Newfoundland and Labrador Offshore Petroleum Board, coupled with the protections provided by the Atlantic Accord and the Accord Implementation Act, have ensured that safety has remained a priority in the offshore oil and gas industry. The industry is already carrying on with standards — performance-based standards — and international best practices to ensure the safety of workers.
While the regulatory process has taken far too long, we have comfort in action taken by all those who participate in this industry and their commitment to safety. That has been, and I believe will always remain, paramount. However, we need to complete this process and similar processes more quickly.
To give a quick example of industry safety — of which the offshore is a leader in Newfoundland and Labrador — both Hibernia, our oldest facility, and Hebron, our newest facility, had lost time injury rates of zero in 2018.
With that said, I would like to point out that the Nova Scotia Occupational Health and Safety Advisory Council was appointed in March 2019, and to my understanding, has been meeting twice a year. The corresponding committee for offshore Newfoundland and Labrador is not yet established. In the best interest of everyone, this should be corrected as quickly as possible.
The international industry monitors the speed of our processes, and protracted delay influences their interest. Continual delay, inconsistent regulation and the spectre of ever-changing and ever-moving goalposts impact decisions to participate and invest in the Canada and Newfoundland and Labrador offshore. We need to overcome this significant hurdle.
In that light, Noia is supportive of efforts to advance and complete this process, and supports Bill S-3. Yet, while we need to get this done, it needs to be done right. We do not wish to see a protracted process, but we do not wish to be back to this process again in short order.
Additionally, we need to ensure that the occupational health and safety regulations we enact now avoid unnecessary duplication with other legislation. And most importantly, we must not lower any standard of health and safety in the offshore.
In essence, and to conclude my remarks, Noia supports the completion of this process in a timely manner, one that includes a holistic approach to offshore regulations, and considers the demonstrated commitment of the industry to ensure the safety of each and every individual who works offshore Newfoundland and Labrador. Thank you.
The Chair: Thank you, Ms. Johnson. Dr. LeDez, the floor is yours.
Dr. Kenneth LeDez, Vice-President, Canadian Undersea and Hyperbaric Medical Association: Thank you for the opportunity to participate today. I was one of the founders and first President of the Canadian Undersea and Hyperbaric Medical Association and the current Vice-President. I’m also the Chair of the Hyperbaric Medicine Specialty Committee of the Royal College of Physicians and Surgeons of Canada, and I’ve provided the large bulk of the medical coverage of offshore diving since 1992.
I certainly recognize that it is important to avoid a gap in regulations, but nevertheless, it is frustrating and disappointing, to say the least, to see this transitional version of flawed, outdated regulations extended further.
Since the original regulations — in terms of the medical aspects of diving — there have been countless changes, such as personal computers, USB ports, smartphones, Internet video meetings like this one today, electronic medical records, pulse oximeters, laryngeal mask airways, video laryngoscopes, electronic stethoscopes, AEDs, portable ultrasound, new medications, and very importantly, older divers who may have a number of controlled medical conditions such as hypertension.
While the technology, medical and industry standards have changed, regulations have not, at least with respect to medical aspects. The required medical forms, for example, are obsolete and not used. There are no category 1 to 3 diving medical certificates referred to in the regulations. The required medical equipment and supplies are outdated and do not meet current standards. Many divers don’t even have their medical assessment in Canada because there are no physician standards or oversight, and therefore, the medicals are not recognized in other jurisdictions. This diminishes the viability of having competent, specialized diving doctors in Canada.
Imagine a doctor is called urgently to see a hospital patient, but then told they cannot access the medical records needed to understand what’s going on. There is no access to prior diving medical fitness assessments, as is mandated in European jurisdictions. There’s no access to diver medical records when a diver is ill or injured offshore, and that’s a big problem.
The COVID-19 pandemic has further exposed the inadequacies of the regulations. Medical testing has been difficult or unavailable. C-NLOPB, for example, was obliged to enforce a stress ECG for a 35-year-old healthy diver because it is right there, mandated in the regulations, despite no evidence to support it. There’s no provision for medical judgment.
The offshore conditions in Atlantic Canada are more extreme and more remote, and there is much less backup than in other places. Canada must align with or exceed IMCA, DMAC, U.K. and Norwegian standards.
Inexpert medical decisions with diving may cause harm and costly disruptions of diving operations. Last year, for example, I made the first use of the D-MAS system in Canada to assess a diver offshore in saturation. I was able to remotely monitor the oxygen saturation, ECG, blood pressure, and to look into a diver’s ears and throat, and examine the diver on video.
Such effective communications are essential and need to be recognized in the regulations. Text messages, emails, digital photos, WhatsApp and other applications are examples of effective communications and documentation.
Virtual inspection and audit of the dive-support vessel and medical systems were needed due to the COVID-19 quarantine restrictions. None of this is recognized by the regulations, and that is a problem with an ongoing pandemic. There is a need for accessible and secure digital medical information, and we can actually lead the world on this. We can leapfrog other jurisdictions in some regards by recognizing the diploma in diving medicine from the Royal College of Physicians and Surgeons of Canada.
A mechanism is needed for ongoing specialized diving medicine advice and authority based on evidence, not arbitrary rules that override medical expertise. If ignored by the regulations, expertise and facilities may be lost, and rebuilding will be costly and slow. We must maintain and develop our capabilities, including of our physicians, divers, supports and training. As an example, the requirement for a hyperbaric reception facility for hyperbaric lifeboats, and the need for a centre of excellence in diving medicine in St. John’s — for example, revitalizing the Centre for Offshore and Remote Medicine, and the proposed HICE project — humans in challenging environments — would bring medicine, industry and multiple disciplines and facilities to work together.
Regulations must facilitate adoption of new technologies and medical standards. Increasingly, saturation diving is being used in the U.K. and other jurisdictions in support of offshore wind farms. This is a development that needs to be anticipated and supported in Canada. My comments are not intended as criticisms of this process but are rather a vision of where things need to go, hopefully more quickly.
The Chair: Thank you, all. Your comments are much appreciated.
We’ll proceed now to our question period.
Senator Simons: Thank you all very much.
Dr. LeDez, I want to particularly thank you because while others have spoken in broad, general terms about the risks and dangers of delay, I think your testimony was the first that gave us specific and concrete examples.
Many — [Technical difficulties] — at the length of time this process is taking, so I wanted to ask all three of you who have been involved in this: From your own personal involvement in the process, do you believe this could be completed safely within a year, and what would be the dangers of taking two years instead of one?
The Chair: To whom are your question addressed?
Senator Simons: Let’s start with the representatives from CAPP and Noia.
Mr. Barnes: Thank you. It’s been my experience over the years, working with governments and regulatory agencies associated with our industry, that if there is a will to get things done quickly, it can be done quickly.
We have been involved in this process since 2014, and a lot of work has been done in that time frame in reviewing policy intents and providing different advice to different levels of government, with respect to what should or should not be in modern-day regulations. A lot of work has been done. From my experience, concluding it and putting a final set of regulations in place should be done within a period of less than two years.
The Chair: Does anybody else want to comment?
Ms. Johnson: Sure. I would just add that, provided we are given sufficient information to comment on, there would be no issue for our members to get back within a very reasonable time frame. If it’s 30 days, we will commit to getting back within 30 days.
Dr. LeDez: A great deal of work was done on this. I participated in the Natural Resources Canada process.
One of the reasons for some of my comments is the concern that some important matters may or may not make it into the final draft, but the bottom line is that until we see the final draft and there is an opportunity to make comments and amendments, we are not going to get to the final hurdle. So I don’t see a reason why something couldn’t be produced quite soon and then it could go out for the necessary expert and public comments.
Senator D. Black: Thank you very much for being with us today. I identify with the comments of my colleague Senator Simons, and you have likely heard the comments of this committee from our meeting two days ago. We are puzzled as to why delay has existed. I’m hoping maybe you can give some — [Technical difficulties] — five or six years to get nowhere?
The Chair: To whom is your question addressed?
Senator D. Black: Any of the panellists. What is the reason we are here today, in their view?
Mr. Barnes: It’s a good question, Senator Black. It’s nice seeing you again.
Senator D. Black: Nice to see you, too.
Mr. Barnes: We have been involved in this process since 2014. It’s been very frustrating for us, too. We have had many opportunities to provide input. There is a complexity to the regulations, but throughout the whole process we have expressed concerns, as well, to governments about the length of delay. There have been a variety of excuses provided to us over the years. We can’t understand why they haven’t been done to date either and we are frustrated by that process.
We are frustrated so much so that, as I mentioned in my presentation, as an industry, we developed our own set of industry best practices, which the offshore petroleum boards have adopted as codes of practices. We were frustrated in not getting to a final set of regulations, so produced industry best practices related to safe lifting of material on board offshore rigs and vessels, transportation of employees by helicopter, training qualifications of offshore personnel, all of which really should be addressed in some way within permanent regulations.
We are not addressing the transitional regulations. We put our own industry codes in place, but to your point and question, we are just as frustrated as you are as to why it has taken so long.
Dr. LeDez: During the consultation processes, there were areas of controversy and pushback. I recognize that, but it’s hard to settle those in the end unless something is brought forward for a vote, an amendment and public input.
I was first contacted in 2016; I’m not speaking for the large organizations that the others are, but I was first contacted in 2016. I expected this to have been done and dusted two years ago. I’m concerned about how long it’s taking. It needs to come forward for an opportunity for input.
Ms. Johnson: I echo those comments. Also, my understanding is that Bill C-69, for instance, happened in a shorter time period. This is about safety, so it’s time we move on and for the industry to know the clear rules.
Senator Galvez: I would like to first say that I agree with Senator Black and Senator Simons that this is the first time we are hearing the content and issues directly related to safety and security of the workers. I did ask that we receive, in this committee, an expert in safety and security, and my request was denied. So yes, we are frustrated, and we don’t know the real reasons.
One reason I want to explore is the cost. It has been very hard for me to find information about the cost of compliance with rigorous health and safety standards. I read an article about a study by the Interior Department’s Bureau of Safety and Environmental Enforcement, or BSEE — the Well Control Rule — on the safety rules changes recommended to the U.S. offshore industry, which addressed the safety highlighted by the safety failures of the Deepwater Horizon disaster. It said:
The new requirements call for far reaching changes to the rules by which the oil and gas operators are governed and would increase costs . . . .
It found that with a barrel of oil at a price of $80, the modified requirement and regulations will decrease the exploration drilling by 55%, and reduce the production as much as 35%.
I estimate that the cost for similar oil and gas offshore rule changes in Atlantic Canada will be much higher. Yesterday, the price of oil was at $60. Can you both explain how your industry can operate safely, be cost competitive and keep levels of profits for shareholders, given the current price of oil? What is the estimated cost for the oil and gas offshore corporations to implement the new regulations, and how many of the new standards have been implemented? Thank you.
Mr. Barnes: With respect to cost, that doesn’t come up in our discussions. Offshore is heavily regulated with modern regulations in offshore Canada, which are similar to what our industry sees in other jurisdictions like Norway and the U.K. The U.S. may be a little bit different because the environment they work in is not as harsh as the environment we work in offshore in Eastern Canada.
When it comes to cost considerations, that’s not really a factor in our discussions or in our review of new regulations. We want to make sure that the regulatory environment is modern and reflective of international standards because that’s how we work around the world. Cost doesn’t come into the equation.
Dr. LeDez: I would like to make a couple of comments. First, the cost of doing things right is often less than the cost of doing things wrong. That’s an important consideration.
There is a cost in terms of the loss of respect for these international operators when the regulatory system in Canada does not nearly meet that in other jurisdictions. I gave an example earlier of a monitoring system for dealing with injured and ill divers that are offshore. I know of at least one occasion when this elaborate monitoring system was removed from a dive support vessel before it came to undertake work here in Canada, because it wasn’t a regulated requirement. It would have cost money for them to remove and disconnect that. It seems very strange. The cost, for example, of having expert medical advice when it’s necessary is zero to negligible. There is a much greater cost for doing things wrong. When you do things right, it costs less.
The Chair: Ms. Johnson, do you want to add something?
Ms. Johnson: Just on the priority of safety. As Paul mentioned, this does not come into the equation from the conversations I’ve had. That’s not the issue here.
The Chair: Thank you.
Senator Wells: I have a question for Mr. Barnes. Again, thank you for your presentation and for appearing.
The fact that there are currently no codified regulations, or current and up-to-date codified regulations, and that the companies that CAPP represents, the operators, have to do this under condition of licence: Are there legal risks in that circumstance of not having that codified?
Mr. Barnes: Thank you. That’s a very good question. We’ve been kind of wondering that ourselves. It certainly appears that the offshore petroleum board, which is the regulator of our industry, in this period of uncertainty as the transition of regs have been repealed, is trying to codify them by putting — as a condition of work authorization — the fact that operators have to adhere to regulations that basically have been repealed.
There are likely some legal implications associated with that and it causes us, as an industry, some concern because of that uncertainty that exists now.
Senator Wells: Ms. Johnson, you mentioned the effect of not having a safety advisory committee. I think that Nova Scotia has one — and good for them — but part of the legislation in 2014 called for the establishment of a safety advisory council that would advise the board. Because the regulations haven’t been put into effect, and this is one of those conditions, what difficulty does that provide Noia in providing advice on safety through official channels, through a safety council?
Ms. Johnson: Thank you, Senator Wells. It’s another avenue for people who work in the offshore to have their say, to voice their concerns and to look at international standards. Again, it’s the delay. I understand it has been meeting in Nova Scotia. We would really like to see that here so that workers, industry associations like ourselves and CAPP can have an avenue to meet and learn best practices and provide advice.
Senator Wells: Thank you, Ms. Johnson.
Dr. LeDez, you expressed the frustration that these weren’t put in place. I know two divers lost their lives in Newfoundland’s offshore area back in the aftermath of the Ocean Ranger sinking. From looking at your bio, you’re an independent expert adviser on regulations to NRCan. Is that right?
Dr. LeDez: Yes, that’s right. I was selected for that process.
Senator Wells: How much does it frustrate you as someone who works in the industry — I don’t want to say operator because that has a different connotation — how frustrating is it for you to be an expert technical adviser to NRCan and to see these regulations not yet put in place after six years and seeking a further two?
Dr. LeDez: Well, I was so optimistic during that process that we were going to see some change, whether through a safety council or some other mechanism, that there would be an opportunity for a physician to finally be listened to, instead of having arbitrary rules that didn’t make sense and ignored so many important aspects.
Every day, every month that goes on that there is diving in the offshore is a concern to make sure that they meet what really has to happen. Two divers died, but now most of the dive support vessels will carry 12, 18 or even 24 divers. If there’s a serious incident, we could be faced with losing a lot more lives.
Senator Wells: Thank you for your comments on this.
Senator Miville-Dechêne: I will ask my question in French. It is a question for Mr. Barnes and Ms. Johnson.
You talked about the fact that you would like everything to move faster, for us to have a permanent bill. I would like to know whether the fact that there were temporary measures for such a long time created real difficulties and I would like to have an example — as I do not want generalities — when it came to applying health and safety measures. In other words, have there been any accidents, near accidents, moments where you felt like your employees’ safety was threatened because temporary measures were already expired. That is my first question for Mr. Barnes and Ms. Johnson.
Mr. Barnes: Thank you. No. Obviously the main concern for us, with respect to having these transitional regulations, is that it doesn’t cause any lack of safety in the offshore because the offshore petroleum board has great oversight with respect to safety practices of the offshore and regulations thereof.
As I mentioned in my testimony, as an industry, we felt we needed to go a little bit above and put our own industry best practices in place around some of the safety components that were lacking in the transitional regulations, which we hope will be picked up in the final version or permanent regulations.
So it’s really just a period where there’s a degree of uncertainty that we as industry and other regulators have put other processes in place to try to make things more certain. But in that whole process, it has not created any additional safety risk.
Senator Miville-Dechêne: To follow up on the question of my colleague Senator Galvez, once the legislation has been implemented, there will be bills to pay for those new regulations. Does the oil industry consider it its role to pay the bill, since, at the end of the day, those profits can be made through oil drilling?
The Chair: Is that for Mr. Barnes?
Senator Miville-Dechêne: Mr. Barnes or Ms. Johnson.
Mr. Barnes: We’re not anticipating a major change with respect to how we conduct our business offshore. As I mentioned, we have safety practices in place. Each operator offshore has their own safety management system in place. We don’t expect, if there’s a permanent offshore regulation that will come into force, that it will cause any additional cost that we would have to bear, because largely you’ve got the processes in place that provide sufficient occupational health and safety coverage at this point in time.
The Chair: Ms. Johnson, do you want to add to that?
Ms. Johnson: As I mentioned earlier, cost has not come up in any conversations that we’ve had with our members. I’ve been CEO for three years here at Noia and this is the most engagement that I’ve had on this particular bill, so thank you very much for that. Cost hasn’t been an issue. As Paul had said, our industry has already stepped up to ensure that safety is adhered to for our workers.
Senator Miville-Dechêne: Thank you.
Senator Cordy: Thank you very much; this testimony has really been excellent for me particularly but for all of us, I think. You certainly are well versed in what has to be done. You all have safety at the front of your minds. Paul, it’s good to see you. Maybe when COVID is over, we can have another meeting.
My question is that, times have changed dramatically since 2014, when this bill was brought forward, just in terms of technology alone. Dr. LeDez, you spoke about being contacted first in 2016. I’m hoping you’ve been contacted since that time, because that would be five years ago.
What are some of the things that really have to be done? Will any of you get to see the regulations before we get them in Parliament to ensure that they are, indeed, up-to-date, since it seems that the discussions have been going on for a very long time? Even those that took place five years ago would be outdated by now.
I wonder if you could answer that. Will you get to see the regulations? Is there any rationale about why there’s been such a delay in bringing it forward?
The Chair: Do you want to start, Mr. Barnes?
Mr. Barnes: Sure. It is our expectation that we would see some type of documentation before the regulation gets formally gazetted in Gazette Part I. What typically happens is the governments contact us, and usually there’s a meeting where there is a presentation given to us with respect to the regulatory policy intent. We don’t actually see a draft of the regulations. We see basically the construct of it through a policy intent. That would be an opportunity — an early opportunity — to provide some comment and some process of review. We are expecting that to happen before the formal Gazette process. During the formal Gazette process, of course, everyone will have time to put in any final comments.
The Chair: Ms. Johnson or Dr. LeDez, do you want to comment?
Dr. LeDez: I could make a comment. It might be a little disturbing and a little bit reassuring at the same time.
As recently as Friday of last week, I was contacted by NRCan — by Kim Phillips, who has been a pleasure to work with; she’s based in Halifax — for some input about some aspects related to diving medicine. I promptly provided her with the information that I had. So I’m certainly aware that they are working on it.
I have not heard any confirmation that I will have an opportunity to see any final product before it goes ahead. I’m certainly anxious to do so because I’m very tuned in to things that I strongly feel need to be there.
In response to an earlier question, I can only think of one offshore diving operation where there wasn’t some sort of need to have access to a diver medical fitness record or diver medical records. In other words, in all the other diving operations there have been some incidents, events or occurrences, whether minor or more severe, where access to those types of records would have been of value. So I’m certainly very anxious that there be a change in the system that acknowledges the importance of some of the features I’ve put forward.
The Chair: Ms. Johnson, do you want to comment?
Ms. Johnson: I just want to say that we would also look forward to seeing the regulations or the policy intent in advance, mainly to ensure that there is no duplication with some other legislation as well.
Senator Cordy: Thank you, chair.
Senator McCallum: Thank you. I want to go back to the codified regulations. It seems that rigorous safety standards are an issue here, and yet I feel that there is still a lot of concern. My question is, why do you need codified regulations to ensure safety? When you say best practices should always be top consideration, it seems that all groups agree to that. How does this delay affect this issue?
You’re wanting change, and yet there are arbitrary rules that ignore important aspects. Who puts on these arbitrary rules in this transition period? I’m just trying to get to the bottom of this conversation because I’m getting a disconnect here somewhere. The safety of the workers should always be paramount.
The Chair: Mr. Barnes, do you want to comment on that?
Mr. Barnes: Yes. Thank you, senator. I certainly agree with you that the safety of all workers is definitely paramount in our business. I think you have two questions there.
First, why are regulations important to us? Usually what happens is there is a formal piece of legislation for all of our business. In this case, it’s the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, which is the act that regulates the offshore industry in Newfoundland and in Nova Scotia. That act, as I mentioned, was amended in 2014 to bring in the Canada Occupational Health and Safety Regulations. The wording in the act is at a high level. Typically, what happens is that regulations follow the adoption of an act and provide more clarity as to what the government’s expectations are for industry as they try to adhere to elements of the act or legislation. That’s why regulations are important, because they provide us extra clarity. Oftentimes, they reference international standards that are not highlighted in the actual act.
Second, to your question about who puts these arbitrary rules in place. The Canada-Newfoundland and Labrador, and Canada-Nova Scotia Offshore Petroleum Boards are the principal regulators of our offshore industry in Newfoundland and Nova Scotia. They are the regulatory body that’s responsible for putting rules in place for the offshore industry.
Dr. LeDez: These international bodies, like the International Marine Contractors Association, the Diving Medical Advisory Committee, and the standards in the U.K. and Norway — it’s just very important that Canada align itself with those levels of expectations. The companies themselves, by and large, are seeking to meet those standards, and sometimes regulations here can actually interfere with that process. So I think we need to have regulations that are goal directed rather than ones that prescribe every single item.
The Chair: Ms. Johnson, do you want to add anything?
Ms. Johnson: I think Paul answered it. I don’t have anything to add to what Paul or Dr. LeDez had to say.
The Chair: Thank you.
Senator Black, I notice your hand is still up. Is it because you didn’t turn it off or because you have a second question?
Senator D. Black: I have a second question.
Ms. Johnson, you made an interesting observation that suggested the element of competitiveness in the Newfoundland offshore industry is adversely affected because of the lack of regulations in place. Is that what you said, or did I misunderstand you?
Ms. Johnson: My point is absolutely safety has to be first. Today, this is about occupational health and safety, but when operators and investors are looking around the world, they look to geopolitical issues, labour standards, the resource itself, and then they look to regulations. While this one, in and of itself, is not a major barrier to attract companies here, it’s just an example of another group of uncertainties, in terms of regulations, when you layer it on with other issues they have to deal with here.
In and of itself, I do believe the safety of the offshore workers is protected. It’s just that we have a — I’m getting some feedback —
Senator D. Black: Look at the ruckus you’re creating.
Ms. Johnson: I speak to investors all the time. It’s the uncertainty, the delays and the change in regulations from the time they start a process here, until the time they get through that process. This one is very minor. It’s just another one to add to the list.
Senator D. Black: You’re saying it’s pancaking — to use the term we hear a lot — regulatory uncertainty that, in your view, leads to a competitiveness issue?
Ms. Johnson: Absolutely. This one specifically in and of itself, no. But it’s pancaking that layer.
Senator Patterson: We heard from officials yesterday, and many of us were asking for the cause of the delay, which the minister himself described as an eight-year delay. Frankly, I couldn’t get to the heart of what went wrong, other than explanations provided by the officials that it’s complex and that the pandemic interfered in the last year.
Ms. Johnson, you referred to Bill C-69, and I think we’re all, in this committee, keenly aware that this was an intense episode involving, I would respectfully say, a hastily drafted, rushed and extremely complex and lengthy bill. I’m wondering if Ms. Johnson or Mr. Barnes would help me to understand: Is possible that the massive efforts to consult on, amend and finalize Bill C-69 — in which the natural resources department was a lead ministry — is it possible that those efforts and distractions were a cause of the delay that we’re now experiencing?
The Chair: Is your question directed to Mr. Barnes also?
Senator Patterson: Yes, if they have any comments I would be grateful. I know both of their organizations would have been involved in the Bill C-69 issue.
The Chair: Mr. Barnes, do you want to start?
Mr. Barnes: Sure. Again, I don’t know the exact reason for delay for the past six or seven years. There’s been a variety of different —
The Chair: Hold on. You’re frozen there. We lost Mr. Barnes.
Mr. Barnes: — with a lot of the representatives.
The Chair: Go ahead.
Mr. Barnes: I would agree that the process of getting Bill C-69 through took a lot of time and resources away from Natural Resources Canada and some other federal departments that could have been spent on these regulations. That was just in one period of time. There were several other years, not dedicated to Bill C-69, where work could have been done on this issue.
Ms. Johnson: I don’t know the reason for the delay either. I know when there was an announcement, I think in 2018 — Paul, correct me if I’m wrong — when there was an announcement on the Atlantic Accord, there was a commitment to have this complete by April 2020, which was a two-year time frame. I’m not sure how we got to where we are.
For me, the focus now would be on moving forward from here as expeditiously as possible. I don’t have the answers as to the reason for the delay. I just want to work with the committee and work with other associations so we can move forward and get this done, because it is about safety.
Dr. LeDez: The COVID-19 pandemic has had major implications for the fitness of divers and for diving operations. I can tell you that one cause of the delay is not the need to get medical input on that, because I have not had anyone contact me for advice from any of this process about what the implications are and how we have to deal with it medically. I’m concerned about that.
The Chair: Thank you. We have three people with questions, but we have two minutes. If I could ask all three of you to cite your question, and we’ll allocate them to the right person. Let’s start with Senator Wells’ brief question.
Senator Wells: It’s regarding the establishment of the rigs, and something Senator Simons said on Tuesday; that perfect is the enemy of good.
We all know that once regulations are in place through enabling legislation, that the regulations can change and be updated over time. We’re also told that the regulations are in full draft, that they’re complete — Mr. Gardiner told us that.
Ms. Johnson, is there any issue in getting these out to the companies that want to see and comment on them, and getting them back so that — not even an expedited process, because eight years is by no means expedited — just getting it done and having permanent regulations in place?
The Chair: Senator Galvez, your question.
Senator Galvez: We know there are no cost problems, and we know the government, the industry and the workers want these. So there is no reason for delay.
I don’t agree with Senator Patterson that Bill C-69 had anything to do with this. Exploratory wells were given an exception. There are 300, and the licensing is going very well. But the regulations are not following the same pace. So will it be good if we reduce the time for this renewal; instead of two years, giving them one year, given that everybody is in the same boat and there is no apparent logical reason for this delay?
Senator McCallum: I wanted to comment on the GBA analysis that was done and that we just received. It caused me some concern, because there was no percentage of the women who were employed, whether there were Aboriginal or other minority groups involved and what was the safety that went with them.
That was a comment, but I’m wondering if Dr. LeDez would like us to put an observation into this, considering that unique, very specialized profession that he is in, so that we ensure that his concerns are stated as an observation. Thank you.
The Chair: Thank you to all three of you. Mr. Barnes, do you want to comment quickly on those questions you wish to add to?
Mr. Barnes: Yes. The question with respect to timing is the more critical one. At the beginning of 2020, we were told we should see a final version or policy intent of the regulations in roughly the March time frame, which would give enough time for us as an industry to review, provide comment and for them to go through a formal vetting process, before the final set of regulations could be put in place at the end of 2020. That’s the kind of time frame. Even Minister O’Regan alluded to it on Tuesday — that the government, at the beginning of 2020, was looking at a period of 8 to 10 months.
Why they are looking for an additional two years now is puzzling to us. We thought we would have it all concluded in 2020. Our review as an industry typically takes about 30 days or so, and we would have definitely adhered to that time frame had we seen any particular drafts.
The Chair: Ms. Johnson, do you want to comment on the question that was addressed to you?
Ms. Johnson: Yes, senator. We will not slow this down; we will ensure we will be more than expeditious.
Dr. LeDez: I’m grateful to this committee for the opportunity to raise my concerns in trying to provide adequate medical coverage. I would answer yes. Any observations that will help influence the final document would be very helpful. I want to thank this committee very much for the opportunity to express my concerns about these matters.
The Chair: Thank you very much to all three of you. It was very useful. There were very relevant questions. Thank you for your availability.
We are going to pause for a few minutes and come back with clause by clause. We urge you to stick around while our people get this organized.
Senator Ravalia: Could I also just kindly express my sincere gratitude to our witnesses; my fellow Newfoundlanders and Labradorians. As the sponsor of this bill, I will take everything you have said into consideration to shepherd this through as expeditiously as possible.
The Chair: Thank you again to all three of you.
Is it agreed, honourable senators, that the committee proceed to clause-by-clause consideration of Bill S-3, an Act to amend the Offshore Health and Safety Act?
Some Hon. Senators: Agreed.
The Chair: Carried.
Senator Carignan: If I may, Mr. Chair, we received a document from Natural Resources Canada on the gender-based analysis. The document is available only in English. It is a document from the federal government, from Natural Resources Canada. I think that is completely unacceptable. Sometimes we hear from private witnesses who give us bilingual documents; sometimes we hear from non-profit organizations that produce their documents in English and in French.
I think it is entirely unacceptable for an editor to send us a document only in English with a note that the translation will follow. If it was the other way around, I think there would have been an outcry.
The Chair: We shared the same sentiment when you were absent to begin the meeting. We had the same comments. This is an exception following a request from Senator McCallum. This is a study she got. We were convinced based on a promise that the French document was on its way. This is a rare exception. We agreed to distribute this document for Senator McCallum’s interest, but we have all shared the same position.
Senator Carignan: I wanted to mention this before departmental officials.
The Chair: You did well and I’m sure it is duly noted, as this would be too easy.
Do we all agree to proceed with the clause-by-clause reading of S-3? I see some yeses. If at any point in time you disagree — I see more yeses, so I think we can proceed.
Let’s briefly chat about how I am to perceive your vote. If you want to, we can use the raise hand function when you wish to consent. Right now, some of you are doing it verbally and it’s tough for me to know whose voice it is. Or you can object to it, and when you object we’ll spend more time on that. Is that okay? Any preferences there?
Do you agree with the reading of the bill at this point in time clause by clause? If you agree, if you just raise your hand. Okay. That’s adopted.
Shall the title stand postponed? Raise your hand if you agree. I see a majority of hands, so that is agreed to.
Shall clause 1 carry?
Senator Wells: I would like to speak on clause 1 and propose an amendment. But in a preamble to that, I want to talk to my colleagues on the committee. I have a simple amendment that affects all three clauses. I propose that I speak on the intent of my amendment, knowing that I’ll be saying the same thing after clause 1, after clause 2 and after clause 3. In order to make this go a little more efficiently, I’ll speak on my amendment and then propose the amendment. If there are any questions then, I would be happy to take them.
The Chair: In other words, after the first proposed amendment we’ll have our discussion at that point in time relative to all three amendments. Agreed?
Senator Wells: That’s correct.
The Chair: Do we all agree? Raise your hand if you agree, please. Senator Wells, the floor is yours.
Senator Wells: Over the last couple of days, we have heard testimony from the minister and his senior officials, from industry, the unions, and from other individuals. We have also read a number of briefs. I highlight one from Mr. Robert Decker, who was the sole survivor of the helicopter crash in 2009. We have heard a lot about that in Senator Ravalia’s second reading speech, as well as in my second reading speech, and now directly from Mr. Decker, whom I assure you, does not often speak publicly. I have only heard him speak publicly at the inquiry into the helicopter crash. For him to reach out and send the committee a note, such as he did, speaks not so much to the importance of safety — and we all know that and have all heard that — but it speaks to the necessity of getting this done and to get it done quickly.
The other note I wanted to speak on, which goes directly to my proposed amendment, is the Bill S-3 implementation plan. It was delivered to me last evening at 7:30 while we were in the chamber or on Zoom in the chamber, hurriedly looking at some of the reasons why they should not be delayed. We have already heard from industry that they can turn this around in Gazette Part I process very quickly. NRCan tells us it’s going to take seven months. Industry tells us it’s going to take what the Canada Gazette requires and what was in the 2014 legislation: 30 days.
There are a number of other things that I find frustrating on that note, and to a high degree insulting, even from the minister telling us that the reason for the delay — I’m reading it right from Tuesday’s testimony — was Canadian federalism. I’m not sure who gave him those lines, but I suggested they weren’t good.
What I’m suggesting in my proposed amendment is that after six years, that’s five years in the initial legislation, plus a one-year extension in 2018, in the Budget Implementation Act of 2018, which extended it to one year, which just expired on January 1. Given that, we know that the regulations are written. Mr. Gardiner told us that in his testimony on Tuesday, that these are written. I think Mr. Barnes referenced in his testimony that they had planned a meeting on March 23, 2020, to get this done by December 31. We are now not even in the middle of February in 2021, with a new way of working, where everyone is better able to be included in these discussions, because more than a year ago we weren’t using Zoom. Now it’s commonplace and people can work from their homes or wherever they are.
My proposed amendment would reduce the time that we would give the government from an additional two years to an additional one year, which would end December 31, 2021, and the transitional regulations that expired in January would extend to December 31, 2021. That’s the key element — why this is legislation — is the extension of the transitional regulations, which are important.
So all my amendments to each clause are based on that sole idea, that sole proposal. I think it’s time that Natural Resources Canada, the minister and the government recognize that these aren’t just regulatory changes that might extend the tax issue or something mundane or arcane. As we heard from Dr. LeDez, these actually affect the safety of people who work in Canada’s offshore. It’s not just in Newfoundland and Labrador, it’s in Nova Scotia as well; they have decommissioning which is also covered by this legislation.
I don’t know if I should read my amendment first or take questions.
The Chair: I suggest you take questions, or people comment as they so wish, at this point in time. Any questions to Senator Wells or anybody want to make some comments?
Senator Patterson: Point of order. Should the amendment not be read into the record?
The Chair: Let’s do so. Senator Wells, why don’t you read it into the record.
Senator Wells: I move, colleagues:
That Bill S-3 be amended in clause 1, on page 1, by replacing line 15 with the following:
“repealed on the expiry of seven years after the day”.
Colleagues, that serves the purpose of this initial legislation, which I sponsored in the Senate in 2014; instead of an eight-year period, it’s a seven-year period, which reflects the December 31, 2021, comment I made. Happy to take questions.
The Chair: Any questions or comments from anybody? I see some hands up.
Senator Cordy: Thanks very much, David. I think that’s a good idea. I probably wouldn’t have said that before listening to the witnesses, particularly the witnesses from today, and after listening to the department officials. Basically, what you are doing is changing eight years to seven years, unless I missed something in it.
I wanted to say that the witnesses today were superb. They were really, really good. They certainly told us that this is long past due, which I think we all made note of when the officials were before us and when the minister was here — that the regulations are outdated. Dr. LeDez’s testimony about how outdated they are — just in terms of technology and medical terms, how times have changed — was very riveting. I certainly will go along with that.
Senator Galvez: I want to also add my support to Senator Wells’ amendment. I think that if environmental regulations to accept industry from assessment can be done in less than one year, they can really finish up health and safety regulations in a year. They have had plenty of time to do so. I also agree with Senator Cordy that no witness has been able to point out any real difficulty or knowledge gap that will require further study and justify further delay. If they need more time, they can always do an S-3-type bill and come back to Parliament in a year with an actual justification for delays.
If it is too complicated to come up with permanent regulations to protect workers — it’s continuous work — we shouldn’t be looking for perfection, but we should look to increase safety today and keep increasing it.
Somebody may come later, if things continue like this, with a moratorium in the meantime. However, I think that wouldn’t be accepted. Sometimes tight deadlines motivate action, so maybe this will be a motivation for them to put the accelerator on. I just want to mention what the minister told us in answer to one of my questions. He said time is money. Time is passing, and we are impacting revenues. Thank you.
The Chair: I notice we are taking this opportunity to basically come to our conclusions. If that is the case, if you agree with me, I think it would be useful at this point in time if we asked for Mr. Gardiner and Mr. Rochon, who are basically here representing the ministry, to join us at the table, or join us on the screen. We can then see what comments they would have — if we made this amendment, and what the consequences are — just to make sure we are all well informed as to the consequences. At least we get somebody else’s opinion, not that Senator Wells’ opinion is not superior, but maybe get their input before we conclude the discussion.
I noticed Mr. Gardiner is at the table. Mr. Rochon is with us somewhere. Mr. Gardiner, you were here last time. There is obviously a lot of frustration. There is a sense of urgency by the participants in industry. We don’t necessarily get a sense that the ministry and your group share that sense of urgency, and therefore I guess we want to make sure we box you in, to get this done as fast as we can. How do you respond to the proposed amendment and what consequence would that cause in your mind? Our objectives, how would that affect them?
Timothy Gardiner, Senior Director, Offshore Petroleum Management, Strategic Petroleum Policy and Investment Office (Natural Resources Canada): Thank you, chair. We would have to obviously revisit the plan that we shared at a high level. There are substeps for each of the broader steps that were outlined with associated timelines with the committee last evening. So there is, I guess, a more detailed version than we shared. We would have to revisit that plan. As dramatic an adjustment as is being proposed here — essentially half the additional time we are asking for, or less than half since we are already into February — would involve compressing all of the steps and probably skipping some altogether.
The most obvious step would be the provincial consultations that we are proposing as a next step. I think we would have to significantly compress the internal justice review process and probably go straight to Canada Gazette Part I for broader public consultation, to have any hope of trying to squeeze this into one year. I think an argument could be made, certainly from our provincial partners, that this is not consistent with co-management. That would be a difficult conversation to have with them. I don’t really see any other way.
As to Senator Galvez’s suggestion that we could come back in a year if more time is needed, we certainly could. I expect we’d be given a rough ride. I would suggest the possibility that a gap such as we have now would rematerialize, which is something we wish to avoid.
The Chair: Mr. Rochon, do you have something to add?
Jean-Sébastien Rochon, Deputy Director and Senior Counsel, Natural Resources Canada Legal Services (Department of Justice Canada): I think Mr. Gardiner has covered the gist of it very well. If we do compress the timeline, something is going to have to give. We will need to compress the time required to do all the various steps that still need to take place. As Tim has indicated, we have a draft ready to be shared with the province, which doesn’t mean it’s ready to be published in the Canada Gazette. There are still internal revisions that need to take place on the bill, jurilinguists need to go through it, all with the view of ensuring that, for one thing, this massive regulation is consistent with itself, that it’s consistent with the enabling authorities that are found in the statutes, and is also consistent with the broader body of federal legislation and regulations, in particular the existing OHS regulations under the Canada Labour Code, to which we add the consultation with the province, which would actually come before the internal review. With the principle of co-management oblige, we would need to ensure that there is sufficient time for the province to align.
It can’t be forgotten that the province also needs to make parallel regulations to the federal government. So it’s not just consultation; they’ll take the text that we’ve drafted, they’ll comment on it and then they’ll turn around and make their regulation that needs to come into force at the same time.
Following that — and this is something that is a bit more specific to this piece of legislation — we cannot skip Canada Gazette Part I. We cannot petition Treasury Board to skip this step. Unlike most enabling authorities, this statute requires pre-publication, albeit it doesn’t specify how long that consultation needs to be. So there could be some wiggle room around that.
All this to say that, somewhere in there, we will need to reduce the time required for these various parts.
The Chair: Is there anyone who wants to ask a question of the representatives here?
Senator D. Black: Senator Wells, thank you very much for your initiative here.
Representatives from the department, thank you for being with us. I feel your pain, but I don’t in any way identify with the challenges you’re going to have to get this done in a year’s period. I wonder what you’ve been doing for the last six years.
The Chair: You have only a couple of seconds to answer that. Please briefly respond.
Mr. Gardiner: Sure. In that time, we have developed, tailored to the Accord Acts, a 300-page regulation in lockstep with our provincial partners, via five different consultation rounds with industry and hundreds of hours in the drafting room to produce that draft. We’ve gone through, I think, 170 domestic and international standards to identify exactly which parts should be referenced in the regulation, in French and English. We’ve amended the transitional regulations to address some administrative irritants that were very problematic. It was a request of our regulatory boards and industry to intervene in that regard.
We’ve gone through a provincial and federal election. Most recently, we’ve been through a pandemic that has dramatically altered drafting priorities, federally, and the way we do business.
Putting it all together, in my estimation, five years was already ambitious, and things would have had to go exactly right to get it done. And they haven’t gone exactly right.
Senator Simons: I wanted to follow up on Senator Black’s question, Mr. Gardiner. Thank you very much for that answer. From what you’ve just described, it sounds like the huge bulk of the work has been done. I believe you told us on Tuesday that the draft regulations were ready to go almost a year ago.
If the stalling point now is getting provincial accord, if the provinces have been part of the whole drafting process and if you have had the final draft ready for 11 months, is there any reason it isn’t going out to the provinces now? Would it not be possible to expedite provincial parallels by getting that draft in as soon as possible?
Mr. Gardiner: The draft regulation was not ready 11 months ago, just to clarify. My colleague Kim Phillips, with the drafting team, has not quite wrapped up a complete draft regulation; we’re about 99% of the way there. I guess I got a little ahead of myself when I said it’s ready, as it’s virtually ready but not quite. We need another week or two before we’re there.
The provinces are not in the drafting room with us. The way we work is that we draft a first cut of the regulatory text, based on agreed upon and consulted policy intent, but this is the first cut of the draft regulatory text. They have not seen it yet. It’s voluminous; it’s 300 pages, again. Our plan was to set aside a couple of months for them to receive it and comment on it, and for us to address those comments before we went into the internal justice review that my colleague Jean-Sébastien described. Then it would go to Canada Gazette Part I for a broader public consultation.
We are considering steps that could potentially streamline that and that would see us sharing the regulation more broadly, not just with our provincial partners and the regulatory boards, but with all stakeholders. We think that could streamline the Canada Gazette Part I process, but that is a decision not yet made, and that will run through our provincial partners agreeing. I’m speculating a little bit when I say that we’re considering that possibility, because we haven’t landed there yet.
Senator Wells: I want to read from the testimony we heard on Tuesday from Mr. Gardiner:
When I refer to partners, yes, I can confirm we do have a full draft regulation. This is not the first consultation. As the minister and Glenn have pointed out, there have been extensive consultations on policy intent in five different stages between 2016 and 2018.
I know from my discussions with the boards — and you all know that I have a history with the boards — and the Minister of Natural Resources in Newfoundland, they’re ready. Everyone says they’re ready — everybody. In fact, the minister, when he referenced the March 23, 2020, meeting to get to the end, it seems that everyone is ready. Let’s go; let’s do this. That’s the intent of my amendment.
The Chair: I don’t know if that was a question.
Do you want to briefly comment, Mr. Gardiner?
Senator Wells: It’s not a comment; it’s just a point of frustration. Sorry, chair.
The Chair: Do you feel our pain, Mr. Gardiner?
Senator McCallum: With this decrease to one year, my concern is that, when I look at the gender-based analysis that was brought up, it’s a very limited one; it’s got no percentage of men and women, and no percentage of the ethnic groups. My findings of being on energies, there is racism prevalent in the majority of extractive sites. You look at the requirement for the employer to develop potential violence.
My concern is that if this is not in place, you don’t know the concerns of the workforce that is there. Will this decrease to one year make any group more vulnerable? We need to look at all sides and balance it with everything we’ve been talking about. So will this make any group more vulnerable to lack of safety care?
Another specific point is that when we look at Dr. LeDez, he said that technology advances regulations so fast, so they’re in a very unique position. How will that be addressed and not leave that special group behind and in a vulnerable state?
Mr. Gardiner: To the first question, as to whether there are potential impacts on disadvantaged or under-represented groups that would result from speeding this process up, I don’t think so. That would be my short answer. What we sent was a summary of some of the analyses we have done in this regard. We could provide a more fulsome summary.
We think we understand what that looks like, but I don’t think there would be a benefit or the reverse from speeding up this regulation.
The Chair: Is there any other question for our representatives? If that is the case, thank you, Mr. Gardiner. Thank you, Mr. Rochon.
Let’s go back to our committee work. Previously, there were some questions from Senator Patterson and Senator McCallum. Do you want to proceed with your question, Senator Patterson, or make your comments relative to the considerations we’re having?
Senator Patterson: Yes, I would like to speak in support of the motion.
I want to say the work is well advanced. We’ve had evidence of that. The regulations are almost fully drafted. We received different versions from officials yesterday, but we can all agree they’re well on their way.
As to the requirement for safety councils under the act, although this has not officially happened, we heard that there is a safety council up and running in Nova Scotia, and there is also one in Newfoundland and Labrador focused on helicopters.
We’ve also heard from Mr. Barnes today that industry has developed industry codes that are now in place in light of the failure to finalize the regulations. The process is well on the way, building on the transient measures in place.
We heard some aphorisms during the hearings about perfection and good, and a puzzling comment from the minister that “expediency is not necessarily indicative of priority.” I think none of us would be advocating for expediency. I think the aphorism that best applies is that of Cyril Northcote Parkinson writing in The Economist in 1955 that “work expands so as to fill the time available for its completion,” or the corollary of Horstman on Parkinson’s law, “work contracts to fit in the time we give it.”
This is the opportunity we have now, and I don’t believe that it’s fair to assume that provinces, along with industry, will not respond in a timely manner to finalize these regulations we’ve all been waiting for, for so long. Let’s get on with it, and I support the amendment.
The Chair: Senator McCallum, did you have any comments on this process?
Senator McCallum: I did, because this is something that came up. I wonder if we could put an observation about disadvantaged groups in this because they would be the most affected.
The Chair: Can we have that discussion at the end, because it’s not part of —
Senator McCallum: I’m just asking.
The Chair: You’re right to make an observation. We can discuss at the end. I think others felt the same.
Can I ask —
Senator Wells: You’ve frozen —
The Chair: — envisage relative to the approval of the Senate and the House of Commons? Because this is highly technical. We will need a lot of expert technicians on the matter. How much time did you allow for the legislative review on the federal side in your time frame of one year? How much time do you think that will take?
Senator Wells: Are you asking me?
The Chair: Yes.
Senator Wells: I spent some time at the senior levels of bureaucracy — specifically at the Canada-Nova Scotia Offshore Petroleum Board and as chief of staff in a ministry — and I refer to Senator Patterson’s comment that if you give someone five years to do something, they’ll take five years to do it. I think there was a failure in this case, and now they’re asking for eight years to do it.
I now refer to the minister’s comment on Tuesday. They were going to sit down, roll up their sleeves, and get to work on March 31, 2020, to get this done by December 31. Everyone is on board with getting this done. I spoke to the Minister of Industry, Energy and Technology of Newfoundland and he said, “We’re waiting.”
The Chair: How much time for us? The Senate will require months and the House of Commons quite a bit of time.
Senator Wells: I understand your question. Once we have the enabling legislation done, that allows the department to put together the regulations. The draft is already complete. They have the gazetting process, which is a mandated 30 days; not less than 30 days. That was part of the legislation in 2014. The Senate won’t see this again — the Senate won’t see the regulations. Industry will see them, the boards will see them and the provincial governments will see them.
The regulations will always change, as we heard from Dr. LeDez. New technology, new practices, best practices and all kinds of things allow us to always, constantly update our regulations. This enabling legislation, once it’s off our plate, then it goes into the people who think about this every day.
The Chair: The bottom line is we must pass and approve the regulations in our own government, within a year, right? That’s what you’re proposing?
Senator Wells: That’s right.
The Chair: And is that reasonable from our point of view?
Senator Wells: We’ll have our work done as soon as it leaves the Senate Chamber, assuming it doesn’t come back with amendments from the house.
The Chair: It was moved by the Honourable Senator Wells:
That Bill S-3 be amended in clause 1, on page 1, by replacing line 15 with the following:
“repealed on the expiry of seven years after the day”.
Is it your pleasure, honourable senators, to adopt the motion in the amendment? I declare the motion carried.
Let’s go back to the bill. Let’s go back to the principal bill. Shall clause 1 carry as amended? That is all agreed?
Senator Wells: Agreed.
The Chair: Shall clause 2 carry?
Senator Wells: Chair.
The Chair: Shall clause 3 — sorry, Senator Wells.
Senator Wells: There is another amendment to clause 2 and to clause 3 that is associated with the same intent of my amendment in clause 1. So I would like to propose an amendment to clause 2 as well.
The Chair: The amendment by Senator Wells:
That Bill S-3 be amended in clause 2, on page 2, by replacing line 3 with the following:
“repealed on the expiry of seven years after the day”.
Shall clause 2 as amended carry? Anybody against?
Senator Simons: We didn’t vote on the amendment.
The Chair: You’re right. Let’s vote on the amendment.
All those in favour of the amendment, please raise your hand or use the mechanism. All those against, if you can raise your hand again. The amendment is carried.
Having said that, what I suggest, therefore, is clause 2, page 2, as amended by Senator Wells, which I read earlier. Is that acceptable to you? Raise your hand if it is. Okay. Thank you. Anybody against? Carried.
Let’s go back to clause 3. Shall clause 3 carry as amended?
Senator Wells: I have a companion amendment in clause 3 that I would like to read out.
The Chair: Go ahead.
Senator Wells: Thank you. Colleagues, as you’re aware, it’s associated with my intent in my first two amendments.
That Bill S-3 be amended in clause 3,
(a) on page 2,
(i) by replacing line 7 with the following:
“December 31, 2021, then”,
(ii) by replacing line 25 with the following:
“section (1) are repealed on December 31, 2021, un-”;
(b) on page 3, by replacing line 12 with the following:
“section (1) are repealed on December 31, 2021, un-”.
The Chair: Thank you, Senator Wells.
Senator Cordy: I get changing the 8 to the 7, but I’m not getting this part. You’re saying that it would end on December 31, 2021?
Senator Wells: Yes.
Senator Cordy: That’s what you’re saying. But it’s already February 2021 and it has to go to the House of Commons. So how is that going to work? Because the other ones were seven years after the bill would be proclaimed.
Senator Wells: December 31, 2031, is seven years after the bill was proclaimed. What it essentially does — it’s not eight years to 2022, but seven years, as I stated in my preamble. The other key part of this is the transitional regulations, which expired a month and a half ago, would continue and would be revised as though the bill continued, and as though it were passed on January 2020. This allows the continuance of the transitional regs to December 31, 2021.
Senator Cordy: My question, though, is previously we were reducing it to seven years after the bill passes.
Senator Wells: That’s exactly what this is.
Senator Cordy: I’m not seeing — maybe next time we can get amendments e-mailed to us or something.
The Chair: I think you did. Did you not?
Senator Cordy: I didn’t see it. I’ve been bombarded, as I’m sure as everyone else is.
Senator Wells: We are. Thank you for your question, Senator Cordy. It’s important for me to clarify if there is any confusion. This gives that seven-year period, not the eight-year period. The seven-year period ends December 31, 2021. That’s what this clause references.
Senator Miville-Dechêne: I think I understand what my colleague is asking. Basically, if it expires at the end of December, it’s not one year. We’re talking here about less than one year, and the bill has not passed yet. So you’re giving more time to pass another bill than to repeal the temporary rules, from what I understand. Do you see what I’m trying to say?
Senator Wells: I think so. What the unamended bill did is, it took the expired transitional regulations, which have been in place for years — they expired on January 31 or December 31 of last year, or January 1 of this year. They were expired. This allows those transitional regulations to continue so that there is something that’s codified, protecting the offshore workers in Newfoundland and Labrador, and Nova Scotia. What this does is, it allows those transitional regulations to continue to December 31 of this year, and therefore requires that the department gets the job done, which we’ve all been calling for. It gives them a one-year extension on the six years that they’ve already had.
Senator Cordy: But it’s not giving them a year. Maybe I’m just not getting it, but the previous amendments are giving them a year after the bill passes. This is not. This is saying if the act receives Royal Assent by January 1, 2021, then it’s going to give them another year. So why does this part not need a year after the bill passes, but will only have eight months?
Senator Wells: Tucked into the bill is the provision that when this bill passes — so it goes to the house and maybe back to the Senate — the transitional regulations which have been expired would be revived as of January 1, which was a month and a half ago.
It’s one of the faults of bringing this in so late, on December 1, but yes. It gives a year from when the transitional regs are revived January 1.
Senator Cordy: Are we going to be here again next November asking for an extension until February because the bill only passed in April?
Senator Wells: They can release the draft regulations now to their partners. Mr. Gardiner already said that. They’ve been written. They’re ready to go. I don’t know. I would think, especially after the hearings that we had on Tuesday, that we’re having today and the further debate that we’ll have in the Senate, that they’ll get to work. That’s my belief. If they bring them back, as Mr. Gardiner said, they’ll probably go through a rough ride.
The Chair: Any other comments or questions for David Wells or comments to be shared by us? I see nobody. Can I go back to the amendment proposed by Senator Wells to clause 3 on pages 2 and 3, which he read earlier and which I presume I don’t have to read again? All those in favour of the proposed amendment, please raise your hand or physically push the button. Good. Anybody against? Therefore, it is accepted.
Can I proceed back to clause 3? Is clause 3 as amended accepted? Does it carry? You can raise your hand if you want. Approved.
Shall the title carry? Approved.
Shall the bill as amended carry? Approved.
Is it agreed that I report this bill, as amended, to the Senate? I think Senator Galvez and others are wishing to propose an observation. Am I correct in saying that?
Senator Galvez: Well, I’m sure my colleague Senator McCallum wants to put in an observation. I wonder, if in the case that the House of Commons rejects our amendment, will we have a safety net and put our recommendation that goes into that direction? For example, that the committee is of the opinion that it is the last renewal that should be possible and any further renewal will have to be accompanied by an explanatory report?
The Chair: Anybody want to comment or question that?
Senator Miville-Dechêne: That’s good.
Senator Simons: Yes, I think that is an excellent idea because I think there is a risk. We have to get the amended version passed by the rest of the Senate, then we have to send it back to the house, and I think we should make it very clear and formally in writing that this is unacceptable.
Senator Wells: I want to thank Senator Galvez and Senator Simons. It’s not enough for us to simply talk about safety. Unless we do something, then nothing will change. That’s what’s in front of us now.
I think it’s a terrific idea to put in an observation with this exclamation point on what we are saying here, because the house may very well look at this and say no, we are going to assert our right, send it back to the Senate, requesting the two years. But I think with this exclamation point that — we can’t dictate, but we can say, “Don’t bring it back, because we’ll address it in the exact same way: Safety is important, people’s lives are at risk, this is an important consideration.” So I fully support the essence of Senator Galvez’s and the support of Senator Simons.
The Chair: Any comments from anybody else?
Senator Cordy: I was struck by what some of the witnesses said today — the regulations are outdated and this bill is simply extending outdated regulations. Times have changed dramatically since 2014, particularly in the area of technology; the government must act expeditiously in bringing forward new regulations.
I’m not saying that has to be the lines that we use; Senator Galvez’s are fine also.
I have to go to another meeting. Sorry, I thought we would be finished after two hours.
I’m in agreement with adding it just in case it gets amended in the house. I think it’s important the observations are there.
Senator Miville-Dechêne: I just want to add that I also think it’s an excellent idea, especially asking for a written report on why it’s not done yet, because they can’t say in a written report that the problem is federalism. I think they have to give us good and real answers.
The Chair: Just from a generic big picture sense, does everybody pretty much agree with the inclusion of the observation in this context? Just raise your hand if you agree. If you think that’s an error, could you raise your hand at this point? There seems to be a broad consensus to get there. The question is: How do we get there? I suggest that two of you, maybe Senator Wells and Senator McCallum or maybe Senator Miville-Dechêne, come up with a draft, that this committee authorize the steering committee to approve the draft and issue the report. This is somewhat urgent, as you know. We have to get on with this. Are there two volunteers to come up with a draft to be approved by the steering committee?
Senator Miville-Dechêne: I think Senator Galvez should be the one because she proposed the idea.
The Chair: Senator Galvez, would you work with Senator Wells and come back to us within a day or two, so we don’t delay the report back to the Senate? Is that okay?
Senator Wells: I suggest that Senator Galvez and I work on this, and we’ll have something back to the committee clerk and the chair before close of business tomorrow.
The Chair: I think we agree on that. Does everybody agree to delegate the approval of the observation to the steering committee? The preparation of the observation will be by Senator Galvez and Senator Wells. Somebody has to approve it. Are we all in favour?
Senator Simons: If Senator McCallum is going to propose another observation, maybe we need to collect all the observations first and then decide the methodology.
I’m also getting a note from my staff who are monitoring other things. It is my understanding the government wants this voted on very expeditiously. That is something we need to keep in mind as well.
The Chair: It’s considered a priority bill, and all leadership agreed with that comment. I don’t want to delay it very much, but we need to vote and get on with it. That’s why, I think, we delegated it to two persons. There should only be one observation, because it dilutes other observations if you have too many there. I think they should be combined in one, somehow.
Senator McCallum: I actually had two other observations. Observations don’t dilute the number we have, but if you lump them then you can dilute the strength of each observation. I wanted an observation about disadvantaged groups that may be impacted, and a separate observation with Dr. LeDez and his very specialized unique problems, I guess I would say, that he has with safety. All of this has to do with safety. If we have three observations, I don’t think it dilutes that. We have unique language to write under each of the observations.
The Chair: Let me resume. Senator Wells, in conjunction with Senator Galvez, please consult with Senator McCallum to make sure her issues are so considered, and therefore the committee delegates authority for final approval to the steering committee, and hopefully get issuance within two or three days if you can. Everybody agree with that process? Anybody disagree?
Before we close, I’m being asked to do this. Apparently given the technology there is always a concern that in this case that I’m badly interpreting the results of the vote. If anybody is opposed to how I saw the vote, and therefore the conclusion arrived at, if you disagree with that and think it’s wrong, please unmute yourself and say “no” at this point in time, and then we’ll go through a different form. Does anybody disagree with the process? Does anybody want to talk live and say, “I don’t agree with the presumption of the agreements?” We are all okay?
Chantal Cardinal, Clerk of the Committee: Senator Massicotte, you just need to read it.
Is it agreed that I report this bill (as amended/with observations) to the Senate?
It’s at the last minute.
The Chair: Did everybody hear that?
Is it agreed that I report this bill (as amended / with observations) to the Senate? All in favour? Anybody against? Good stuff. Thank you very much. I know we are running a little tight. Thank you to all of you. I think we did our work. We did a good job. It’s not totally complete but I think we made a difference.
Thank you very much for your patience and your comments. Thank you.