Westray Mine Public Inquiry Commission
Stellarton, Nova Scotia
Day 77
22 July 1996

Oral Submission
of the Provincial Government
by Reinhold M. Endres, Q.C.

1. Introduction

A disaster such as Westray forever changes the lives of all those who had any direct or even indirect involvement with the mine. The families of the victims, more than anyone, shoulder the burden of this tragedy, and the never ending sadness of losing a loved one.

There is no formula for repairing the damage that has been done, and we know that their struggle to cope will endure. We all appreciate that the deceased and their families were let down; they deserve better.

The May 9th, 1992, explosion has devastated the lives of 26 families, forever altered the lives of all of Westray employees. It wiped out the immediate prospects for the recovery of a valuable resource, and it provoked questions about how the Province attracts business, how it scrutinizes entrepreneurs, and regulates and monitors industrial activity.

Rightly, the families of the deceased, miners and other Westray employees who lost their jobs, and members of the community are asking how such a tragedy could have happened.

With Westray employing leading technology, the best of equipment, with no obvious shortage of working capital, experienced miners, supervisors and leading experts on site, with regulators and inspectors watching, and legislation in place intended to protect the workforce, one would not have anticipated any serious problems.

The loss of the men at the Westray Mine came as a shock, and there are many serious questions to which we need answers. We have to find out why; the families, and the public, have a right to know why 26 men perished in this mine.

All of us, very legitimately, expect and demand that those who can contribute to the safety of coal miners, make their very best efforts and show their commitment in their role in occupational health and safety. We need to ensure that workers are not exposed to unacceptable risks of injury, or risks to their health, that they can make informed decisions, including ultimately the decision to refuse to work in unsafe conditions.

In this we must act as one; it is counterproductive and unacceptable for even one person, who has the means to impact on safety in the workplace, to ignore or avoid the responsibility of doing the right thing, all of the time.

The evidence before this Inquiry paints an unfavourable picture of a number of parties, including the Province. For our part, we accept legitimate criticism. We know that we could and should have done better.

We are prepared to do what it takes to implement changes necessary to improve the safety of workers.

2. Why a Public Inquiry, and the Inquiry's Terms of Reference

The Province had a number of options open to it in the aftermath of the explosion. It chose the most transparent, compelling, and independent means of fact-finding possible, namely this Commission. Government is committed to getting to the bottom of this tragic event.

The whole idea of the Public Inquiry was to allow for the public scrutiny of all circumstances and all players associated with Westray — including the Province.

Discovery of what went wrong is an essential step before we focus on prevention. In simple terms, this Inquiry was set up to find out what caused the explosion and to recommend steps to prevent another tragedy.

It has been recognized by the Commissioner, yourself, that the business of assigning blame is not part of your terms of reference, and there are solid, constitutional, reasons for that. However, public officials demonstrated accountability by appearing at this hearing. Those who were asked to attend did so voluntarily. They co-operated with the Inquiry, made their notes and documents available, were examined and cross examined, and did the best they could to assist this Inquiry.

Unfortunately, senior Westray management were not so cooperative, and thus far have refused to attend the Inquiry. It is apparent from the evidence of witnesses such as Benner, Clow, and Eagles, that company officials are able to provide a perspective, and make a contribution which no other witnesses can make. We continue to support the Commission in its efforts to obtain evidence from Westray officials.

By convening this Commission, and by providing the Commission with all the necessary cooperation, support, and resources so that it may complete its tasks, we have set an example, and the lessons we learn will be of benefit to all Nova Scotians, and indeed, to persons outside the jurisdiction.

The comprehensive review of all available facts, analysis of the circumstances that led to the explosion, and recommendations as to how this type of tragedy can be avoided in the future, will undoubtedly be of significance to underground miners now and into the future.

3. What Have We Learned

Now, I mentioned in the beginning that I want to spend a fair bit of time on what we have learned.

The evidence before you has identified a range of shortcomings in the regulation and operation of the mine.

I want to concentrate on what we have learned about the Province's approach to safety in this mine. In retrospect, it now appears that the regulatory and administrative initiatives applicable to Westray failed to meet expectations. We agree that the Province could have done better.

One of the first shortcomings that we need to contend with arises with the legislative and regulatory framework for coal mines that the Department of Labour administered. Nova Scotia's first Occupational Health and Safety Act was enacted in 1985. With it came the Internal Responsibility System that was already in place in other Canadian jurisdictions.

Internal Responsibility, and I will say more about that shortly, is the product of a series of commissions investigating workplace accidents in many jurisdictions across the country and elsewhere. These commissions concluded that the focus for workplace safety should be on the involvement of the employees, and that the employer and the employees are responsible for health and safety. Under this system, the role of the regulator is to ensure that the two parties fulfil their legislated responsibilities, and to deal with non compliance. As I said, I will get back to that in a bit.

The Occupational Health and Safety Act enacted in 1985 did not, however, displace other laws applicable to coal mines. The Coal Mines Regulations Act, in particular, continued to apply in full force, and it has an entirely different focus. The Coal Mines Act puts the emphasis on the inspectorate controlling many aspects of the operation.

The mix of the principles of internal responsibility under the Occupational Health and Safety Act, and command and control under the Coal Mines Regulations Act, did not provide a sound foundation for the management of health and safety matters. As a result, roles and responsibilities for safety were not clearly defined nor understood.

We now understand that in 1992 Nova Scotia did not have an effective internal responsibility system in place in the coal mining sector.

The Coal Mines Regulations Act as well as the Mineral Resources Act which also applies to coal mines, assign to the regulator and the inspectorate too great a role in operational matters. This gives employees and employers the message that it is okay to rely on the officials who must issue approvals. No one took ownership of safety issues, and it is apparent now that at Westray safety issues were simply not managed effectively.

In retrospect, we now see that while the Coal Mines Regulations Act continued to apply, internal responsibility could not take hold in the coal mining sector. The Occupational Health and Safety Act had only minor impact on coal mines. The thrust of the administration continued to be command and control, by way of approvals, permits, and enforcement of minimum standards, which brought the inspectorate in very close contact with mine management on a regular basis; also in close contact with operational issues, but which did not, unlike modern health and safety legislation, promote joint worker and management participation, in mine safety.

We have learned that an approvals based system, such as that under the Coal Mines Regulations Act, stifles development of proper safety attitudes, as well as acceptance of responsibility for workplace safety. Approval based systems jeopardize the functioning of the internal responsibility system. The Coal Mines Regulations Act does not support the internal responsibility system, and the enactment of the Occupational Health and Safety Act did very little to change that.

The intention in 1985 was to build on the experience gained elsewhere with the implementation of what we always refer to as internal responsibility. As it turns out, and we see that reflected in the Westray experience, there was a failure to appreciate, a failure to recognize, the obstacles that were in the way of the internal responsibility system.

There were direct consequences to this inconsistent legislation. Departmental policies, for example, were not supportive of internal responsibility, nor were the officers' field services. Inspectors were not provided with the type of leadership, nor did they receive the necessary tools and training, that would allow them to see to it that the internal responsibility system was properly implemented at Westray.

Indeed, the inspectorate continued to approach its tasks in the traditional manner. In keeping with the Coal Mines Regulations Act, they dealt mostly with the employer, concentrating on compliance inspections, approvals, and permits. Even these tasks were made much more difficult by the fact that the Coal Mines Regulations Act had not kept pace with developments in mine technology and mining methods, and provided the inspectors with very little or no guidance in important areas such as, for example, the use of rubber-tired diesel tractors underground.

Inspectors were actually handicapped by the laws that pulled them in opposite directions, and prevailing regulatory arrangements and policies that did nothing to resolve that conflict. We see this reflected, for example, in the inspectors' position in relation to the approval of auxiliary ventilation fans at Westray. The inspectors were provided with a very poor foundation, and no one helped them to develop the necessary appreciation of the internal responsibility system.

You've heard, Mr. Commissioner, about the pooling of the inspection and monitoring services in the Department of Labour following the introduction of the 1985 Occupational Health and Safety Act. This was in accordance with the recommendations by the McKeough Commission. It was a well-reasoned effort, but poorly executed. Four units, from the Departments of Labour, Health, Mines, and the Workers' Compensation Board, were brought together, and they together should have formed one strong Occupational Health and Safety division; in fact we now know that each unit continued to operate largely unchanged under specific legislation such as the Coal Mines Regulations Act, and with that the benefits of an improved safety focus were not fully realized.

It is not surprising then that the Inspectors proved unsure of their new role as external support (and I will return to what that role should be) in the internal responsibility system, and, as a result, were unable to foster and support internal responsibility at the mine.

No one understood that what was needed at Westray, much more than underground tours, and equipment approvals, was a determination as to whether the company had in fact in place a properly trained and working safety committee, had developed the respective roles under internal responsibility, and was governed by proper attitudes and the necessary sense of responsibility about safety in the work place.

Had the internal responsibility system been properly implemented, and if all parties at Westray had accepted and discharged their respective roles accordingly, the risk of an explosion would clearly have been reduced significantly.

We have also learned, in the course of this proceeding, that officials appear to have been too closely associated with management, and not accessible enough to safety representatives at the mine, and to the miners themselves. A number of Westray employees, and we heard their evidence, felt that there was an impenetrable alliance between the employer and the inspectors, leaving no opportunity for consideration of the employees' views on safety. And we say there is no room for that in a coal mine.

Officials allowed themselves to be misled by appearances, and a misguided faith that management was looking after safety matters. By way of example, the inspection tours themselves would have been much more effective had employees been invited to attend. Instead, as we know, the inspection tours invariably were between the inspector and a member of the Westray management. That was wrong.

In retrospect, there was insufficient follow up by the inspectors on their demands, the orders and approvals they issued. Despite the fact that three previous orders had been carried out apparently without any difficulty, it would have been reasonable for the inspectors to follow up on the April 29th orders, which, as we know, required immediate action on the part of Westray.

However, it should be recognized that the April 29th order was a timely response on the part of the inspectors to the problems they identified; if the orders had been complied with as required, coal dust may not have entered the equation of the explosion, and the failure to follow up consequently on the part of the inspector would have been of small significance. From the evidence of Trevor Eagles, we also know that just two days prior to the explosion a second warning about coal dust was given to the company when all of the dust samples taken a week prior from the mine failed to pass the minimum standards; apparently nothing was done.

The lack of training and education of miners and company officials in safety matters played a prominent role in the failure to develop a culture that rejects acceptance, condonation, and participation in activities which present unmanageable safety risks. We agree that we could have done more to detect that deficiency, we agree we could have done more by way of education.

Policies, procedures, and safety practices should have been scrutinized more systematically for their adequacy, and more effort should have been made to determine their impact on day to day activities. We now know that the reality at Westray often did not match company records, or what the inspectors were led to believe by management, or the things they saw at the mine.

Statutory reports, as well as minutes of the safety committee, should have been reviewed more consistently, and better utilized as a safety check.

Statutory provisions should have been enforced more readily.

There should have been more effective communication and information exchange within and between the various public agencies involved at Westray.

The Mineral Resources Act, which also applied to Westray, created difficulties for the Department's resource managers. It refers to "safety", but fails to define the extent to which safety considerations were part of their mandate. It also fails to address what changes to the mine plan required their approval, and that in turn has led to confusion as to what their role was in mine safety and the review of mine plans.

Questions have also been raised about the practice of monitoring compliance with approved plans on the basis simply of annual plan filings, as opposed to direct follow ups at the mine. We have heard evidence that the Department of Labour did not check for mine plan approvals because they were deemed not relevant for its purposes. There were gaps, induced by legislative deficiencies, by a lack of clear policies, and by a lack of effective communication in and between departments of Government.

It can also be fairly said that the resource managers at the Natural Resources Department should, under the circumstances, have had a better grasp on what Westray was doing in the south west panel, which was contrary to the approved plans, and these resource managers should have been more sensitive to Westray's ability to plan the efficient extraction of a valuable resource.

We have learned that, despite legislation to the contrary, at least some miners feared reprisals, and as a result they did not dare to raise safety concerns with management or the inspectorate. If there had been more frequent contact between the inspectors and the men, a better climate undoubtedly would have been established for a better flow of information.

The one safety complaint in the life of the mine that potentially could have made the difference, unfortunately could not be substantiated. As a result, and therein lies the significance, its value as an indicator of a more pervasive safety problem at the Westray mine was totally lost.

Having said all that, it would be misleading for any of us to focus all attention on the regulators and the inspectorate. Safety in the workplace is not simply a function of the frequency and quality of inspections. Intervention by way of inspections, orders, etcetera, and enforcement, has a limited impact on mine safety. Intervention does very little to stimulate the desired safety climate. And I would refer you — in support of that proposition — to the Canadian Standards Council who has published an article on this and reported that the studies that the Standards Council reviewed, concluded that intervention, such as inspection and prosecution on the part of the inspectorate, provides a false sense of security and does not achieve compliance. Closer to home, in its 1995 report the Occupational Health and Safety Advisory Council identified the following underlying problems in the approach to workplace safety, and this is following three years of intensive review and study of occupational health and safety:

The Council concluded, amongst other things, that health and safety in Nova Scotia suffers from a low level of awareness in public, industry, and Government circles. There is little focus on prevention in the culture of many workplaces. People tend to deal reactively rather than pro-actively with hazards. Health and safety responsibilities are not well understood...

The Advisory Council continues, pointing out that prior to the Westray tragedy the status quo was acceptable to many, and health and safety was not a priority of Government...

And, finally, the Advisory Council noted that no one thing will fix all the problems in one shot. Nova Scotia needs a fundamental cultural change that focuses on our health and safety responsibilities...

4. What has the Government Done Since 1992?

I indicated in my opening notes that I would want to take a look at what the Government of Nova Scotia has done since 1992. Much has been accomplished in the intervening four years. Government has taken steps that will bring about a fundamental cultural change focused on the health and safety of workers.

It has done that by way of changes in the law, new policies, by review of the Coal Mines Regulations Act, changes in the administration, by instituting training, and finally, by way of the one way review of mine applications. To go back:

New Legislation: Part of the necessary corrective action, which I identified early on by saying that there is a problem with the Occupational Health and Safety Act not working together with the Coal Mines Regulations Act, part of the necessary corrective action has already been taken with the 1996 enactment of the new Occupational Health and Safety Act, as proposed by the Nova Scotia Health and Safety Advisory Council. As you know, that Council included representatives from organized labour, industry, medical, and workers compensation experts, as well as public officials. Their assigned task was to specifically review occupational health and safety, as well as related policies. The new Act builds on the 1985 Act; it finally includes a plain language explanation of what the internal responsibility system is, and it clarifies the contribution for which workplace parties and the Department's Occupational Health and Safety Division are responsible. It is a much stronger statement on internal responsibility than what we had thus far.

New Policies: New policies have been enacted at the Department of Labour. For example, under these new policies inspectors will not any longer give prior notice of upcoming inspections.

New Coal Mines Regulations: Replacement of the Coal Mines Regulations Act is presently under way. Government is considering recommendations offered by the Advisory Council, including the recommendation that new safety regulations for underground mines not include provision for pre-approval by Government of plans, equipment, and procedures. That, of course, will be a major departure from the current statutory scheme. The departure lies in the fact that we are moving away from control, and we are moving toward responsibility.

Changes in the Administration: Changes in the administration followed a review by independent consultants, who reviewed the management practices at the Department of Labour. That review has resulted in the implementation of modern management practices at that Department. Also, and you've heard some evidence on that, there is a move under way towards a generic inspection service. That service will have well-trained officials, trained in safety matters, and versed in the Internal Responsibility System. This will reduce emphasis on coal mine engineering — the inspectors will not necessarily be coal mine engineers — but it will increase the emphasis on workplace safety. I believe that is the road on which we have to travel. There have been extensive changes in staff, particularly in the Occupational Health and Safety Division of the Department of Labour, and you've heard evidence on that.

Training: The changed approach on the part of the inspectors to mine safety will be facilitated by extensive training that began in 1992. We acknowledge that there were certain deficiencies in the training provided to the inspectorate prior to Westray. We now point out that this has been taken care of. In addition, and that is a brand new development, safety education is becoming part of the curriculum of our Community Colleges and Trade Schools, and this is in keeping with the new 1996 Occupational Health and Safety Act.

One Window: Finally, the Government of Nova Scotia has implemented a One Window approach to reviewing, permitting, and monitoring mineral exploration and mining projects. This One Window process facilitates cooperation between departments, it improves efficiency, it improves communication and information exchange between operators and Government departments. The main departments involved are the Department of Environment, the Department of Labour, and the Department of Natural Resources; additional parties are added to that One Window committee as required from time to time. The One Window committee deals with the full range of mineral exploration and mining projects, as well as project-specific issues.

All of this demonstrates committment in improving workplace safety. Government will consider with care your report and recommendations, and continue to implement additional measures, under the common goal of safer underground coal mines. The impact on workplace safety will be positive, significant, and it will be lasting.

5. The Internal Responsibility System

The Internal Responsibility System deserves the Commission's full support; it is not a fad, it is not simply a way out for the inspectorate. Rather, the inspectors take on the new role, together with the joint safety committee, and (under the 1996 legislation) the safety representatives, of being contributors to workplace safety, in a carefully-devised scheme. There are, in our view, no better alternatives. At Westray, internal responsibility was not working. It was not working because it had never been properly implemented.

Internal responsibility is based on the realization that regulatory control alone will not make the difference in workplace safety that we are striving for. In an effective safety system employers and employees take the lead by devising and implementing safety methods for their own protection.

Internal responsibility, properly legislated and effectively administered, is natural justice for workers. It gives them a voice and the necessary information on which to make sound personal decisions, as well as influence in the decisions of management, and the safety representatives, as well as the decisions of inspectors and policy makers. A strategy which purports to exclude workers from this process in which occupational health and safety decisions are made between the inspectorate and management alone is simply incompatible with internal responsibility. Such a strategy tells the workers that their perspective is simply not relevant, and that is not helpful. It is wrong to leave the workers on the outside of the decisions that directly relate to their health and safety.

Internal responsibility is not incompatible with strong regulatory standards, inspections, and enforcement. But, more of this kind of intervention on the part of the inspectors cannot replace the shared responsibilities of the workplace parties for a safer workplace.

In a properly functioning system, internal responsibility must be supported by the contributing role of the inspectorate. And, one of the key aspects of that is that the inspectorate ensures that internal responsibility is properly functioning at the workplace. The focus, therefore, is on assessing the responsibility system, not, in the first instance, identification of specific safety hazards.

Under the internal responsibility system, Government lets employees know that they have the right to a safe work environment, and the right to refuse unsafe work; workers will be provided with the necessary comforts and tools that will motivate them to refuse and discourage, without any hesitation on their part, unsafe work, and hazardous activities. The Nova Scotia Occupational Health and Safety Advisory Council has specifically sought to address that concern with the new Occupational Health and Safety Act. It is a proper role for Government to design and deliver a system that protects employees who have reasonable grounds to complain or to refuse work because of safety or health concerns.

It is appropriate, in our view, for this Commission to build on what the International Labour Organization, Ham, Burkett, McKeough, and others have done. You recognize they all spoke about the internal responsibility system; they all address considerations in relation to workplace safety. They all confirm that it is the employer who has the legal and the moral responsibility, and indeed the ability, to provide a safe and healthy workplace. We have identified numerous other reports beyond Ham, McKeough, Burkett. In the Bibliography which we intend to attach to our written submission, most of these reports are in the context of the mining context, and they all accept the principles of the internal responsibility system. We commend those reports to you.

We can quickly look at the Burkett report, on the inquiry into mine safety in Ontario, and we know from what you have told us that you are familiar with that report, indeed that you have spoken with Mr. Burkett about that. This report begins with a statement of recognized principles on what the internal and contributive responsibilities require of each party, he identifies any weaknesses in how those responsibilities were discharged, and makes recommendations as to what should be done in the future to correct these weaknesses for an effective internal responsibility system in the mining industry. We feel that this is a very sound approach to a complex problem.

6. Proper Role of the Inspectorate

A great deal has been said about the role of the inspectorate during this Inquiry, and I am certain that we will hear much more shortly. I would like to go back for a moment and focus specifically on the role of the inspectorate in the internal responsibility system. This is looking forward, because in our view, we may dwell on the past but then we will be stuck in the past; if we want to move in the right direction, we have to look forward. This is an important issue — what should the role be of the inspectorate?

In keeping with the new Occupational Health and Safety Act, which takes into account direct experience gained elsewhere in the country, the role of the inspectorate is that of an external contributor to the employer - employee partnership in safety. We can look at it in terms of two circles; we have the one circle in which we have the employer and the employees, and we have another circle which contains the inspectorate, the safety committee, and the safety representatives of the workers. The inspectorate, and the safety committee, and the safety representatives, are external contributors to the partnership between the employer and the employees.

This was developed out of experience and out of the realization that it is not possible for the inspectorate alone to create and maintain safe and healthy workplaces. The proper role of the health and safety officers is to clarify the safety responsibilities of the parties under the law, it is to support them in carrying out their respective responsibilities, and it is to monitor and intervene appropriately when those responsibilities are not met.

Under the internal responsibility system, the officers' role does not include directing how to do things, and once we remove that element, they will not be seen as collaborating with the employer on how to run the operation, or making operational decisions. The officers' contribution to safe working conditions is vital, but it can never be seen as more than a supporting role in securing a safe workplace. It is, and here I quote from Ham, "a misuse of the role of mines inspection, for management to rely on this external process of audit as a primary means of detecting departures from standard conditions".

You have heard evidence of the use of checklists by inspectors in the course of mine inspections. That approach works best in a static environment. Room and Pillar mining, such as we had at Westray, is not a static operation, and that argues in favour of an approach which allows for some flexibility and discretion. In our view, there is room for both in the inspectors supporting role in mine safety.

7. Conclusion

I am near the end of our submissions. It is one of the important tasks of your Commission to document all that went wrong at Westray; past actions and failure to act can only be fairly assessed against the prevailing climate and particularly the administrative and regulatory structures in place during the life of the mine. Of course, we also need to learn from this tragedy, and in that context it is apprporiate for the Commission to identify the elements of the very best system possible, and to develop your recommendations accordingly.

This Inquiry places you in a unique position, a position where you can educate and make recommendations to Government, employers, employees, and the public about occupational health and safety, for a major step forward in workplace safety.

Mr. Endres: Mr. Commissioner, I left a few moments of my allotted time, so that there would be room for questions, if you have any. If not, those are our submissions.

Mr. Justice Richard: Thank you, Mr. Endres. I don't think, at this point, I have any questions. I thank you for a very thoughtful submission, and I can assure you that both the Ham report and the Burkett report will be revisited quite thoroughly in my preparation of the final report. I have nothing at this time, but I reserve — later on, if need be, I will. Thank you very much, Mr. Endres.

Explanatory note (relevant to but not part of the oral submission, above):
The Canadian Standards Council recently identified a series of federal and provincial commissions investigating workplace accidents and compensation experience.  These studies concluded that intervention – such as inspection and prosecution – on their own provide a false sense of security and does not achieve compliance.
McLellan, Jim, Concepts Paper, Exploring the Need — Voluntary International Standards for Occupational Health and Safety Management Systems, Standards Council of Canada, 10 April 1996.

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