Wednesday, February 10, 2016

Questions remain about the CNRL tank collapse

Yesterday, CBC revealed that CNRL has successfully limited the scope of a public fatality inquiry about the 2007 deaths of two temporary foreign workers caused by a tank collapse to whether the availability of an air ambulance would have saved one of the workers.

Circumscribing the scope of the fatality inquiry renders it largely useless; a fuller inquiry would perhaps reveal important information that might be used to prevent future deaths. CNRL limited the scope of the inquiry during a teleconference involving CNRL, Alberta Justice, and a provincial court judge.

There are many profoundly troubling aspects to this report. Here are five:

1. Why would CNRL oppose a full inquiry? There is no real cost to CNRL and the result may prevent future deaths. The only risk I can see is if there is the prospect of reputation harm (e.g., the inquiry might reveal dodgy corporate practices). Surely the public good favours transparency?

2. Why did OHS hide its investigation report for 8 years? Perhaps the report could legitimately be withheld during the prosecution of SSEC Canada, but that is completed two years ago. Who decided not to post the report and why? Again, surely he public good favours transparency and the state should proactively disclose fatality reports. EDIT: I just read that the government normally withholds reports until after the fatality inquiry was over. Again, why?

3. Why did the judge limit the scope of the inquiry? The workers affected here were profoundly vulnerable. The 132 temporary foreign workers on the project were entirely dependent upon their employer for their right to work in Canada and were physically and linguistically isolated. They were also dependent upon their employer for their safety (given the complexity of the undertaking). Not only did their employer fail to take responsible steps to protect their lives and health, but the resulting investigation also revealed widespread wage theft by the employer.

The inquiry could have delved into how these intersecting forms of vulnerability are exploited by employers to maximize profitability, in part through complex corporate and subcontracting arrangements. I wonder if these deaths would have happened and if the inquiry would have been circumscribed if the workers had been Canadian, instead of Chinese?

4. Why does everyone blame the workers? The CBC report notes that:
The OHS report found that the employee responsible for monitoring activity inside the tank "was not competent." The worker "was not aware of the emergency response requirements" and "did not have a telephone or radio to summon assistance."
This phrasing has the effect of blaming the “not competent” worker. It is important to note that it is the employer who was responsible for ensuring the work was safe and, by implication, that the staff they hired were suitably qualified for the tasks they were directed to perform.

5. Did CNRL actually just blame the AFL for the limited scope of the inquiry? CNRL’s cousel, in the CBC article, blames the Alberta Federation of Labour for the outcome of the January hearing:
[AFL President Gil] McGowan said he supports a full inquiry, but CNRL's lawyer blames the labour organization for failing to act when it had the opportunity. Two letters addressed to McGowan invited the AFL to participate in the January hearing. Lawyers for the Alberta government sent the first in September, and the second one day before the teleconference. They received no reply.

[CNRL lawyer David] Myrol took the lack of response as tacit approval of quashing the inquiry. "I would submit sir, that the party that really pre-empted this entire public inquiry is the federation themselves," Myrol told Jacques, the judge. "They've been notified of this public fatality inquiry and have chosen not to participate in it."
Setting aside that Alberta Justice directed notices to McGowan (who was on leave from the AFL) rather than the organization, is it CNRL’s position that public inquiries should only occur when organized labour demands it? CNRL attempting to blame the AFL for an outcome actively pursued by CNRL is shameful and specious reasoning.

Overall, the case is a fascinating study of how federal immigration and provincial health and safety laws interact in petro-state.

-- Bob Barnetson

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